Laws

On the refusal Post Date: Thu, 31 Jul 2008 4:48:34 +0000
8 Sea L Nor is it necessary that the warrant be under sea L 3 v PRELIMINARY HEARIN g By the statutes of some states, upon the return of the warrant a preliminary hearing is had before the justice or justices, and the complainant is examined under oath touching the charge against the man accused of being the father of the chil d 4 This examination is reduced to writing by the jus- rant is Issue d On a bastardy com- plaint a justice of the peace has no authority to issue a warrant to a con- stable of a town in another county al- though the respondent resides there, but it should be addressed and served by a civil officer of the county where the warrant is issue d Tilley v Da- mon, II Cus H (Mas S) 247 1 Hopkins v Plainfield, 7 Con N 286; Garlick v Bartlett, 4 Allen (Mas S) 365 The Massachusetts Statof 1859, C 239, i, authorizing the warrant in a prosecution under the Bastardy Act to be made returnable before the justice who issued it, or before any other justice in the same county authorized to issue it, applies to a case in which the complaint was made before its passage, if the warrant was not issued till afterward S Williams v Copeland, 5 Allen (Mas S), 209 2 State v Klitzke, 46 Min N 343 Time when Child was Bor N The war- rant should correctly state the time of the birth of the child, when complaint is made after deliver Y Burnett v Co M, 4 TB Mo N (Ky) 106 Against Form of Statut e Nor is it necessary that the warrant conclude "against the form of the statute," etc State v Peeples, 108 N Car 768 Reciting Jurisdictional Fact S A jus- tice has no jurisdiction unless the woman making the complaint is sin- gle and is pregnant with, or has been delivered of, a bastard child in the county in which the justice acts; but if the complaint does not assert these facts, and the justice is satisfied by other evidence of their existence, he should recite their existence in his warrant, that his jurisdiction may ap- pear on the face of the proceeding S Williams v State, 29 Ala 9 Informality of Warrant. Where the mandate of a warrant issued by a justice on a complaint of bastardy was to bring the accused before him, " to be dealt with according to law," in- stead of " to answer such complaint," the court held that such informality was unimportant, and did not deprive the justice of jurisdictio N Bookhout v State, 66 Wi S 415 3 Millett v Baker, 42 Barb ( N Y)2i 5 4 Ohio z/ Smith, Tappan (Ohio) 175; Penfield v Norton, i Root (Con N) 345 Entry by Justice of a Plea for Defend- ant. On the refusal of the accused to plead to the complaint at the exami- nation before the justice, the justice entered for him a plea of not guilt Y Held, that though such plea seems to be a nullity and uncalled for, it could not prejudice the accused, and was no ground for reversing the judgment.

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A defect in a bastardy Post Date: Thu, 31 Jul 2008 4:31:02 +0000
Bookhout v State, 66 Wi S 415 Defendant's Appearance and Giving Se- curity for Appearanc e Defects in pro- ceedings after the issue of a warrant in a bastardy process are cured by the subsequent appearance of the defend- ant before the justice who issued the warrant, and there giving bond, with- out objection, for his appearance at the trial court. Collins v Conners, 15 Gray (Mas S) 49 Defect in Warrant. A defect in a bastardy warrant is cured by the ap- pearance of the defendant before the magistrate and pleading to the merits, with full knowledge of the alleged de- fect and with full opportunity to avail himself of the objectio N Murphy v Crain, 59 N H 244 Irregularity of ArreSt When there is an irregularity in the service 6f the warrant, but the defendant appears be- fore the justice and, without objecting to the form of the service, becomes recognized to appear before the coun- ty court to answer the complaint, the objection to the irregularity of the arrest comes too late when made tice or justices, certified by him or them, and annexed to the transcript of the proceeding S 1 V I DETERMINATION OF MAGISTRAT e In general it does not ap- pear to be necessary that the justice or justices before whom the preliminary proceedings are had should make a formal adjudica- tion that there is probable cause to believe the defendant to be the father of the bastard child, but he or they will merely bind the accused with sufficient security in case there is good cause to believe him guilt Y 2 for the first time in the trial court; it should have been first made before the justic e Quow v Conlin, 31 Vt 620 1 Ohio v Smith, Tappan (Ohio) 175 Waiver by Defendant Where, on the day set for the hearing before the jus- tice, the relatrix was not present, but the defendant, with his attorney, was present, and made no objection to the hearing on that account, and made no effort to procure the attendance of rela- trix so that her examination might be taken and reduced to writing, it was held that he had waived her examina- tion; and he could not afterwards be heard to complain that the examina- tion was not yet take N Unruh v State, 105 Ind 117 Where the transcript of a justice, in a proceeding in bastardy, stated that the defendant upon his arrest and ap- pearance " waived an examination," it was held, on a motion by the de- fendant in the Circuit Court to dis- miss the action, that he had waived his right to have the relatrix exam- ined before the justice and the reduc- tion to writing of her testimony, as provided by statute; and in such case the failure of the justice to make such an examination would not be ground for dismissal in the Circuit Court.

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Fogarty v Con- nell, 153 Post Date: Thu, 31 Jul 2008 4:12:25 +0000
Smith v State, 67 Ind 61 The examination of the complainant under oath by the justice touching her complaint, which examination is to be reduced to writing, may be waived by the defendant without prejudice to his defense; but where such examina- tion has been waived and the defend- ant recognizes to appear at the next term of the District Court, he cannot then be heard to question the jurisdic- tion of the District Court for the rea- son that there was no examination of the complainant before the justice of the peac e Strickler v Grass, 32 Neb 811 Sufficiency of Proceeding S If the de- fendant, being arrested upon a war- rant duly issued, is brought before a police court, waives an examination, and gives a bond for his appearance before the Superior Court, there is no irregularity in such proceedings upon which to found a motion to dismiss the complaint in the Superior Court. Hannan v Doherty, 136 Mas S 567 2 Rindskopf v State, 34 Wi S 218 But see State v Braun, 31 Wi S 600 Sufficiency of Adjudication Finding that the Complaint is Tru e Where the complaint charged that the defendant was the father of the child of which the relatrix had been delivered, and the justice found that the complaint was true held, that this was in effect finding that the defendant was the father of the chil d Abshire v State, 52 Ind 99 Finding Defendant Guilt Y Where the defendant appeared before the justice and pleaded not guilty, and the justice, after examination, found him guilty and bound him over to the county court, it was held that such finding, as it included probable cause, authorized the binding over, and the proceeding was not on that account erroneou S Hopkins v Plainfield, 7 Con N 286 Judgment Substantially in Words of the Statut e Where the judgment of a justice of a District Court substantially follows the words of the statute (Pu b StatMas S, C 85, 9) it is sufficient, and it is not necessary that it should appear therein " that there was good, sufficient, or probable cause " to be- lieve the defendant guilty as alleged in the complaint. Fogarty v Con- nell, 153 Mas S 371 Effect of Recognizance on Informal Adjudicatio N Where the defendant was recognized by the justice to the Circuit Court to answer the charge made against him, but a formal judg- VI I SECURITY FOR APPEARANCE 1 When Require d In some states the justice to whom a complaint of bastardy is made is required, in case there is probable cause to believe the defendant to be the father of the bastard child, to bind the accused to ap- pear for trial before the proper tribunal; 1 while in others the binding over takes place upon the failure or refusal of the defend- ant to give security for the maintenance of the chil d 2 A justice may also, on an adjournment of the proceedings pending before him, require the defendant to enter into a recognizance for his future appearanc e 3 ment that he was the father of the child was not entered by the parties, it was held that the informality of the judgment was of no consequence, the binding over to the Circuit Court im- plying pretty strongly that the justice considered the defendant guilt Y State v Barbour, 17 Ind 526; Smith v State, 67 Ind 61 Necessity of Entry of Judgment that Defendant is FatheRUpon the return of a warrant for bastardy, issued upon legal affidavit, the justice need not en- ter up judgment that the defendant is the reputed fatheRIt is sufficient if he recognize him to the county court for its actio N Under the Act of 1741, C 14, the law adjudges defendant to be the father, upon the facts stated in the affidavit.

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It was early held Post Date: Thu, 31 Jul 2008 4:02:04 +0000
Irwin z/ State, 8 Humph (Tenn) 14 1 Rindskopf v State, 34 Wi S 218 Bond for Appearanc e The security to be taken by the justice for the ap- pearance of the defendant in the trial court should be a bond, and not a re- cognizanc e Johnson v Randall, 7 Mas S 340; Merrill v Prince, 7 Mas S 396; Mariner v Dyer, 2 Me 169 When the Accused is an Infant. An infant accused, on a complaint before a justice of the peace, may be required to give bond with sureties to appear and answer to such complaint at the next Court of Common Pleas, and to abide the order of the court thereon; and his infancy is no defense, either for him or his sureties, to an action on the bon d McCall v Parker, 13 Met (Mas S) 372 Effect of Failure to Take Recognizance Enforcement of Appearanc e Where a justice neglects to recognize the de- fendant to appear at the next term of the Superior Court, but returns the warrant and examination thereto, a capias is the proper process to enforce the defendant's appearance, and he is bound to answer upon its retur N State v Green, 71 N Car 172 Filing Recognizance in Trial Court. It was early held in Indiana that when a justice binds a person in a recogni- zance to the Circuit Court in a bastar- dy process, the original recognizance should be filed by the justice in the Circuit Court.

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York v State, 68 Post Date: Thu, 31 Jul 2008 3:46:10 +0000
State v Lewis, 4 Blackf (Ind) 20 When Recognizance should be Re- turne d On a day, which was the first day of the term of the trial court, the defendant was recognized to appear at the "next term" of said court. Held, that the recognizance was re- turnable to the next term of said court, and not to the then present ter M Parian v State, 19 Ind 456 2 Walker v State, 5 Ga 491 What Amounts to a Demand and Re- fusal of Bond for Maintenanc e Where a warrant was issued against the puta- tive father of a bastard, and, before the justice, he waived a preliminary hearing and gave bond to appear at the next Superior Court, which was allowed by the justice, such facts, without more, do not amount to a de- mand and refusal to give bonds for the maintenance and support of the chil d If such demand and refusal in fact occurred, the defendant cannot relieve himself by offering to give bond in the Superior Court. York v State, 68 Ga 551 See also Shiver v State, 23 Ga 230 3 New Haven v Rogers, 32 Con N 221 Where a statute (Taylor's Stat, 740, 2) provided that the examination might be adjourned "from time to time for cause shown, not exceeding ten days at any one time," an appli- cation, and consent by the defendant, for an adjournment for a longer pe- riod was held to amount to a waiver 2 Form and Sufficienc Y The form of security prescribed by statute for the defendant's appearance should be substantially adhered t O 1 Condition S In some states the condition of the security for the accused's appearance may be to abide the judgment of the trial court, as well as to appeaR3 3 New Security when Require d The defendant may be re- quired by the trial court to give new security either upon a con- tinuance of the proceedings, 3 surrender of principal by sure- on his part of the provisions of the statute, and that the magistrate be- fore whom the proceedings were pend- ing did not lose jurisdiction of the cause by such adjournment.

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New Haven v Rogers, 32 Post Date: Thu, 31 Jul 2008 3:30:54 +0000
State v Homey, 44 Wi S 615 1 Ohio v Smith, Tappan (Ohio) 175 To Whom Security should be Taken Alabama 70 the GovernoRThe bond given for the appearance of one charged with being the father of a bastard child should be made payable to the governoRTrawick v Davis, 4 Ala 328; Lake v Governor, 2 Stew (Ala) 395; Chaudron v Fitzpatrick, 19 Ala 649 Kentucky To the Commonwealt H A prosecution for bastardy being a criminal case, the recognizance should be taken to and in the name of the commonwealt H Co M v Porter, i A K Marsh (Ky) 44 New Hampshire To the Stat e The recognizance may properly be taken payable to the stat e Castles v Welch, 63 " N H 369 The Territories To the United State S The recognizance should be made payable to the United States, and not to the mother of the chil d Stratton v Shintaffter, MorR(Iowa) 421 Who may Enter into Third Perso N In Alabama it was held to be no ob- jection to a recognizance to the Circuit Court that it was entered into by a third person, and not by the party himself State v Lewis, 4 Blackf (Ind) 20 Sufficiency of Bond Alabama The statutory bond required by the justice before whom proceedings are insti- tuted is only intended to secure the defendant's appearance in court to answer the charge, and, having served its purpose, when he has appeared he cannot then be heard to question its sufficiency; nor is the bond invalid because it does not particularly de- scribe or identify the case, when the affidavit and warrant returned with it show to what particular case it applie S Hanna v State, 60 Ala 100 Irregularities Duty of Accuse d If by mistake the justice in a bastardy process takes a wrong recognizance, or fills up the blanks with an acknowl- edgment different from that actually made and intended by the parties, it is the duty of the putative father, upon discovering the mistake, to at once take the proper and necessary proceeding to correct it, and to have the proper recognizance substituted, that the case may be tried without dela Y Huyett v Slick, 43 Md 290 2 Harris v Thomas, Kirby (Con N) 268; State v Owens, 6 Blackf (Ind) 61 But see Young v Co M, 2 A K Marsh (Ky)63, where it was held that security to abide the judgment of the court could not legally be demanded; to appear is all the d'efendant can le- gally be bound to d O See article ABIDING THE EVENT, Vo L I, p 53 Effect of Conditions to Abide Judgment of Trial Court. A bond conditioned that the accused shall appear and abide the order of the court obliges him to the payment of such money as the court shall order for the mainte- nance of the child, as well as to the giv- ing of a new bond for the performance of such ordeRTaylor -v Hughes, 3 Me 433 A recognizance taken before a jus- tice of the peace on an adjournment of proceedings may be not only to ap- pear, but to abide the judgment of the court; and the condition to abide the judgment is not satisfied by a mere ap- pearance of the defendant at an ad- journed court; but he must appear at all times fixed by future adjourn- ments, and whenever required by the court. New Haven v Rogers, 32 Con N 221 3 Porter v State, 23 Ohio St 320; State v Castleberry, 23 Ala 85; Tra- wick v Davis, 4 Ala 328 Effect of Failure to Take New Se- ties, 1 or when the original recognizance becomes insufficient.

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Co M v Thompson, 3 Post Date: Thu, 31 Jul 2008 3:14:55 +0000
2 4 Satisfaction and Discharg e The surrender of the defendant into court before final judgment, either by himself or by his sure- ties, is a satisfaction and discharge of the security for appearance, and releases the sureties from further liabilitie S 3 curit Y In a prosecution for bastardy the transcript and recognizance were filed at the term of court to which the defendant was recognized to ap- pear; but there was no order of con- tinuance at the term thereof, and an- other term was permitted to intervene without any order of continuance, and at the third term the recognizance was forfeited, the case tried, and a verdict of guilty rendered and judg- ment pronounced in his absenc e Held, that there being no continuance of the case at the first term, and the defendant not having been recognized to appear at the term at which the re- cognizance was forfeited and judg- ment rendered in his absence, the for- feiture, trial, and judgment were un- authorized and voi d Grieve v Frey- tag, 31 Ohio St 147 The fact that, after the defendant has been recognized by a justice of the peace to appear in the Circuit Court, the case is there continued from term to term without a new bond being re- quired, does not release defendant from the custody of the law ; and the further fact that he voluntarily appeared and was present at the trial does not af- fect the jurisdiction of the court over hi M Holderman v Thompson, 105 Ind 112 Necessity of Indorsement of Continu- ance of Bon d If a bond taken by a justice of one accused of being the putative father of a bastard child was duly rendered to the next Court of Common Pleas, and the complaint en- tered in usual form on the clerk's docket, and at the same term the de- fendant appeared, but, as the child was not then born, a continuance was entered on the docket, the bond is thereby well continued, and it is not necessary that the continuance should be written on the bond itself Adams v Whiting, 12 Pic K (Mas S) 196 1 Hanlan's Case, 119 Mas S 59 See also M'Hugh, Petitioner, 3 Cus H (Mas S) 452 2 Oldham v State, 5 Gill (Md) 90 3 Mather v Clark, 2 Ai K ( Vt) 209; Gray v Fulsome, 7 Vt 452; Sim- mons v Adams, 15 Vt 677; State v Thompson, 3 Jones (N Car) 365 Surrender by Suretie S Kentucky Ge N Stat, C 7, provides for the execu- tion of two bonds in bastardy cases one for the appearance of the accused, and the other for the payments of such sums as may be adjudged against him; and the surrender of the defend- ant to the court by the sureties in the former bond is a satisfaction of that bond, and releases the sureties from further liabilities thereo N Runner S Co M, 78 Ky 556; overruling Co M v Douglas, II Bush (Ky) 608 Necessity of Formal SurrendeRIn a bastardy case the liability of the bail on the recognizance taken before the justice may be discharged by a sur- render of the principal at the term when he is required to make his ap- pearance ; but the mere attendance in court by the principal to defend the suit is not sufficient for that purpose ; there must be a formal surrender of the principal into court and an exon- eration entered upon the record in discharge of the bai L Humphrey v Kasson, 26 Vt 760; Blood v Morrill, 17 Vt 598 Necessity of Surrender before Judg- ment. But unless the sureties on the bond surrender the principal in court before a judgment of filiation is en- tered, they are not discharged by the surrendeRBuett -v Murphy, 80 Me 358; Carson v Dunlap, 80 Me 354; Doyen v Leavitt, 76 Me 247; Garvin v Walsh, 54 Vt 368 Quashing Recognizance Inadvertentl Y Where the defendant appears by attorney and induces the court er- roneously to quash a recognizance on the day of appearance, the recog- nizance is not extinguished ; but as the defendant could not afterwards literally comply therewith, a reason- able time should be allowed for him to appear in discharge of it after the reversal of the judgment quashing it. Co M v Thompson, 3 Litt (Ky) 284 Compliance with Judgment of Court.

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not take advantage of it unless Post Date: Thu, 31 Jul 2008 2:58:03 +0000
A recognizance conditioned that the defendant appear at the next term of the District Court to answer the com- 5 Forfeitur e The security given by the defendant for his ap- pearance in court to answer the accusation is forfeited by his non- appearance and default, without judgment of filiatio N 1 See article BAIL AND RECOGNIZANCE, ant e 6 Remedies for Breach of Condition S Though the ordinary rem- edy to recover for the breach of conditions contained in a recognizance or bond to secure the appearance of the defendant in a bastardy case is by scire facias, an action of debt will also lie ; 3 and in actions on such securities the rules governing actions on bonds and undertakings generally are applicabl e 3 See ar- ticles BAIL AND RECOGNIZANCE ; BOND S plaint, and not depart without leave, and abide the judgment and orders of such court, is not satisfied when the defendant appears at court and re- mains in attendance during the trial, but requires that he comply with and perform the judgment that may be rendered against hi M Jackson v State, 30 Ka N 88 A recognizance given under Kansas Comp Laws, C 47, 5, relative to ille- gitimate children, requiring defendant to remain and abide the judgment and orders of the court, is fully performed when, after a verdict of guilty and judgment, and an order of commit- ment to the jail on the failure to give bond, he is taken to the jail and con- fined ther e Wheeler v State, 39 Ka N 163 1 Jordan v Lovejoy, 20 Pic K (Mas S) 86; Lake v Governor, 2 Stew (Ala) 397 Setting Aside Forfeiture on Excuse for Nonappearanc e Where the de- fendant's bond has been forfeited for nonappearance the judgment should be set aside if the defendant shows a reasonable excuse for nonappearance on the day, and not a wilful Default Riggen -v Co M, 3 Bush (Ky) 493 Right to Forfeiture after Discharge of Accuse d After the Circuit Court has discharged the defendant from his recognizance for an omission in the justice's transcript to state that he had failed to compensate the mother in a bastardy proceeding, it is too late for a motion on the part of the state to have the recognizance forfeite d State v Allen, 4 Blackf (Ind) 269 Failure to Appear According to Recog- nizance Taken on Continuanc e Where a party was arrested and brought be- fore a justice of the peace, and ob- tained a continuance to another day for trial, and entered into a recog- nizance for his appearance, but failed to appear held, that the justice of the peace had power to take such recogni- zance and declare it forfeited on the principal failing to appear according to the condition of his recognizanc e People v Green, 58 111 236 2 State v Gassaway, n Humph (Tenn) 203 In Whose Name Action should be Pros- ecuted Ohio In Name of the Stat e An action on a recognizance taken un- der the fourth section of the Bastardy Act of April 13, 1873 (70 Ohio L, in), and duly forfeited, must be brought in the name of the stat e Clark v Petty, 29 Ohio St 452 New York In Name of the Peopl e Where a bond given for the appear- ance of a defendant, upon an adjourn- ment of proceedings in bastardy, is in the name of the people as obligees, it may be prosecuted in their name; if not prosecuted by the proper officer the remedy is by motio N People v Clark, 21 Barb ( N Y) 214 Tennessee In Name of the Stat e In State v Gassaway, n Humph (Tenn) 203, the suit was in the Circuit Court in the name of the state for the use of the injured femal e It was held that the recognizance was intended to secure the appearance of the accused to answer the state's charge against him; and the recovery thereupon, if effected, accrued to the state, and the institu- tion of the action for the use of the injured female was therefore errone- ou S She had no right to su e 3 Sufficiency of Declaration Alleging Nonappearance of Accuse d In an action of debt upon a recognizance entered into in the Court of Common Pleas, conditioned that the respondent appear at a future time and not depart without leave of court, but abide the order of the court in the premises, VII I AMENDMENT OF INITIATORY PROCEEDING S In those states where it is held that a prosecution under bastardy statutes is a there was no averment in the declara- tion that the respondent, being called to appear according to the tenor of the recognizance, made default, and for this cause the declaration was held to be insufficient. State v Chesley, 4 N H 366 Averring Observance of Statutory Re- quirement S A declaration in debt, on a recognizance taken for appearance on a continuance before the justice, that fails to aver that there was a de- fault in appearing before the justice of the peace, and that he had certified the recognizance with the record of the default to the Circuit Court of the county, is bad on general demurrer, as these are statutory requirements essential to a right of recover Y People v Green, 58 111 236 Defenses Stirrender Failure to Spe- cify Ti Me An answer of a surety, in an action on the recognizance, that he took the accused and surrendered him in open court and requested a release from the recognizance, without stat- ing whether such surrender was be- fore the forfeiture of the recognizance, or before final judgment in the bas- tardy suit, or that the recognizance was canceled, is not merely defective in form but insufficient in substance, and hence subject to demurreRPro- seek v State, 38 Ohio St 606 Pleading Discharge or Performanc e Where the defendant has been sur- rendered in court by his sureties on the recognizance such surrender should, on a suit on the recognizance against them, be pleaded as matter of discharge, and not of performance; but if pleaded as a matter of perform- ance, and no objection is taken by demurrer, the court will give the facts pleaded their legal operatio N Gray v Fulsome, 7 Vt 452 Where the bond was for the appear- ance of the defendant at the next term of the Court of Common Pleas, to answer a complaint of bastardy and abide the order of the court thereon, and on a suit on the bond the defend- ant pleaded that the respondent in the bastardy case did appear at the term of court specified in the bond, that he answered to the complaint, and was always ready during the term to abide any order of the court, yet the court did not at any time during the term make any order on the complaint, but that, without the defendant's consent, it continued the complaint to the next term held, that the plea was goo d Dunbarton v Palfrey, 27 N H 171 Postponement of Hearing without Con- sent of Suretie S In an action on a bond taken for the appearance of the putative father the sureties pleaded that their principal appeared on the day specified in the condition, and that the sessions made an order with- out consent of the sureties postponing the hearing until the next term, by which the principal was permitted to depart the said court, etc Held, that such plea was a good answer to the action, notwithstanding the declara- tion averred that the postponement was taken on motion of the principa L People v Greene, 5 Hill ( N Y) 647 Release of Accused by MotheRAs between themother and the defendant, a release executed by her will be a good defense to a suit against the sureties on the recognizance, and will bar any further claim on the defendant arising out of that matTer The re- lease, however, will have no effect against the town in which the mother had her settlement while the overseer of the poor controls the prosecution for the benefit of the tow N Humphrey v Kasson, 26 Vt 760; Sherman v John- son, 20 Vt 567 Consistency of Defenses Failure to Renew Recognizanc e In an action on a recognizance entered into before a justice of the peace, an answer by the surety that the accused, after judgment, was permitted by the state to go at large is not inconsistent with a denial that the recognizance was renewed as to the surety at the next term after it was entered into, the cause having then been continue d State v Newton, 22 Wi S 536 Replication Avoidance of Plea of Dures S If the warrant issued by the justice of the peace to whom the com- plaint is made be returned before an- other justice, and such other justice requires the party accused to give bond to answer before the Court of Common Pleas, and orders him to be held in custody till such bond is given, the bond will be void, as given under duress, as against both the principal and the suret Y In an action on such civil and not a criminal proceeding, the proceeding is within the rules allowing amendments in civil case S The complaint, being amendable in form or substance, is not void, however defective it may b e 1 Irregularities may be remedied and defects supplied, 2 and generally any amendment may be made which is necessary to prevent injustic e 3 I X Abatement Where proceedings in bastardy are properly begun, generally they do not abate by the death of the mother, 4 or the death of the child, 5 or by the marriage of the prosecutrix bond, in which the obligor pleaded duress, it was proved that the obligor appeared at the court in compliance with the bond, but did not plead to the complaint, and that the proceed- ings were continued because the child was not then bor N It was held that such appearance was not equivalent to a waiver of the duress; but that if it were, the plaintiff could .not take advantage of it unless it was set forth in her replication, as avoiding the plea of dures S Fisher v Shattuck, 17 Pic K (Mas S) 252 Amount Recoverabl e In case of the forfeiture of a bond conditioned for the appearance of the putative father, the whole penalty is to be recovered; but where the bond is conditioned to indemnify, and a breach happens in the condition, the breach must be as- signed and damages assesse d People v Tilton, 13 Wen d ( N Y) 597 The defendant is liable to an action on the bond for failing to appear, although no conviction against him is shown; and upon such action it is not error for the court to render judgment without a jury for a less sum than the penalty of the bon d Lake v Govern- or, 2 Stew (Ala) 395 1 Robie v McNiece, 7 Vt 419; Lit- tleton v Perry, 50 N H 29; Fuller v Hampton, 5 Con N 417; Maynard v People, 135 111 430 See article AMENDMENTS, Vo L I, p 458 Affidavit.

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Where a person was charged Post Date: Thu, 31 Jul 2008 2:45:23 +0000
The affidavit in a bas- tardy case may be amended in the Superior Court, with the permission of the judge, even after the defects are pointed out by a motion to dis- mis S State v Giles, 103 N Car 391 Amendment of Complaint Florida An amendment to the complaint, by charging on oath facts not sufficiently or substantially charged before the magistrate, cannot be allowed by the Circuit Court, because the statute does not authorize an original complaint to be[ made in that court, and such an amendment is an original complaint. E D p v State, 18 Fla 175 2 On the trial it appeared that one of the two examining magistrates had neglected to sign the examination, and he being present the court per- mitted him to add his signatur e State v Thomas, 5 Ire d (N Car) 366 3 Ford v Smith, 62 N H 419 4 People v Smith, 17 111 App 597; People v Nixon, 45 111 353; Colby v Storrs, cited in 3 N H 141 Ter Mont In a prosecution for bas- tardy under the statutes of Vermont the right of action does not survive the death of the mother, and the suit may be dismissed on motion therefor; nor can the town on which the sup- port of the child may be cast maintain an action against the putative father after her deat H Rollins v Chalmers, 49 Vt 515- 5 Malson v State, 75 Ind 142; Hanisky v Kennedy, 37 Neb 618; Hinton v Dickinson, 19 Ohio St 583; Jerdee v State, 36 Wi S 170; Smith v Lint, 37 Me 546 Upon the death of the child pending a proceeding in bastardy, the defend- ant has no right to demand from the court a dismissal of the proceedin g The death of the child pending the proceeding and after issue joined would be proper matter for a plea puis darrein continuanc e Satterwhite v State, 32 Ala 578 Necessity of Order by Court. Where a person was charged with being the father of a bastard child, and gave bond for his appearance at the next term of the court, and before the next term of the court the child died, held that it was error in the court to discharge such putative father upon payment of costs, and without mak- ing any order or requiring him to give bon d What kind of order should be made in such cases is in the discretion with a man other than the Defendant 1 In some states, however, such proceedings abate where the child is afterwards born dead, 2 or where the respondent dies during their pendency in court and before tria L 3 The nonjoinder of the husband, where he is required to be joined, should be taken advantage of by plea in abatement ; 4 but the failure of defendant to furnish a proper bond for appear- ance supplies no ground for such ple A 5 It seems that the pend- ency of another proceeding for the same cause is no ground for abatement of an examination on a second complaint.

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Plainfield, 7 Con N 286 Post Date: Thu, 31 Jul 2008 2:29:16 +0000
6 of the court; but it seems that there should be some order in every cas e State v Beatty, 66 N Car 648 1 Roth v Jacobs, 21 Ohio St 646; Austin v Pickett, 9 Ala 102 Marriage of Complainant with Defend- ant. Where a complaint of bastardy was made and control of the case assumed by the overseer of the poor, as provided by statute, the intermar- riage of the complainant and defend- ant after the birth of the child, and before trial, was held to terminate the suit, and a judgment was rendered for the defendant; but it would have been more regular to have considered the suit as abated by the intermarriage of the partie S Gordon -v Amidon, 36 Vt 735 2 State v Beatty, 61 Iowa 307 ; Hauskins v Peopl e 82 111 196 Child Stillbor N In Illinois the pro- ceedings in a bastardy case are not abated by the death of the child before verdict; but in case the prosecution was commenced before the birth of the child, and it should not be born alive, the action would then abate, and no judgment could be rendered against the defendant except it might be for cost S Hauskins v People, 82 111 196 In Iowa the same doctrine has been announced, except that judgment is not even allowed for cost S State v Beatty, 61 Iowa 307 Indiana Where, under the statutes of Indiana, a prosecution is com- menced before the birth of the child, its subsequent death, whether in utero or after birth, will not abate the ac- tio N Robinson v Stat e 128 Ind 397, distinguishing Canfield v State, 56 Ind 168 See also Evans v State, 58 Ind 3 McKenzie v Lombard, 85 Me 224 ButiaftuHatta, if the putative father dies before or after the action is com- menced, the right of action survives and may be prosecuted against his personal representative S State v Williams, 8 Ind 191; State v Han, 23 Ind 539 4 Parker v Way, 15 N H 50 5 Hopkins z'. Plainfield, 7 Con N 286 6 A defendant, being brought be- fore a justice upon a charge of bas- tardy, filed a plea in abatement alleg- ing, in substance, that he was at the time of his arrest under recognizance to appear before the Circuit Court upon another charge for the same cause, made before the same magistrate, and that the same was still pendin g The justice disregarded the plea and committed the defendant upon his fail- ing to comply with the justice's order to file a recognizance for his appearance at the Circuit Court.

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