Johnson v. Randall

7 Mass. 340

Opinion

At an adjournment of this term, holden on the 29th of July, the opinion of the Court was delivered to the following effect by

Parsons, C. J.

The point made by the defendant’s counsel came before us, in the case of Merrill vs. Prince,

(2) at the last term in Cumberland; and the Court were clearly of opinion that a justice could only bind the putative father to answer by requiring a bond from him, and not a recognizance. That case will be reported, with the reasons at large of the opinion of the Court.

The statute mentions a bond as .the security to be given by the putative father. And when the condition of a bond [ * 342 ] * is broken, the Court may relieve against the penalty upon equitable terms; but not against a recognizance, if it be forfeited. It is our opinion that in this case the demurrer must prevail, and the declaration be adjudged bad and insufficient for the plaintiff to maintain his action.

Costs for the defendant.

Vide post.