Lake v. Governor

2 Stew. 395

• Court: Supreme Court of Alabama
• Decided: January 15, 1830
• Status: Published

Opinion

By JUDGE WHITE.

It is not contended that there is any variance between the bond as declared on, and that reacl upon oyer. But in the first place, it is insisted that the judgment is erroneous, in having been rendered for a less sum than the penalty, by the Court, without the intervention of a jury. To this, it may be answered that the plaintiffs here cannot be • heard to complain of that as an error, which is manifestly for their own advantage. Again, the statute of 1811, concerning bastardy, prescribes no particular amount in which the justice is required to take the appearance bond. The design, however, was to enforce the appearance of the reputed father, that he might be re-bound by the Coutity Court, to prevent the child from becoming chargeable on the county; and as the law limits the sum in which he Would have been re-bound, had he appeared, to five hundred dollars, it is at least reasonable that he should forfeit that amount for not appearing. It is further contended, that, after the overruling of the demurrer, there should have been an assignment of breaches on the roll, and an assessment of damages, in conformity to the provisions of the act of December 20th, 1824. Though the language of this statute is very broad and comprehensive, it is not sufficiently so to embrace a bond like the one under consideration. If breaches had been assigned, and an attempt made to assess damages, by what data or criterion could they have been ascertained? No specific injury had been sustained, though one was apprehended, and that too, not to an individual, but to the county. This injury, from its very nature, was unsusceptible of admeasurement in anticipation of tbe expense that might be incurred. Another reason why it was unnecessary, if it would not have been improper, to have assessed the forfeiture by means of a jury, is, that the reputed father should not be held responsible, for not appearing, in a greater sum than he would have been made to pay upon appearance, and as the statute leaves this with the court under the restriction before mentioned, there was no necessity for a jury.

As to the objection, that the defendants were not liable until it was ascertained by the finding of a jury that Lake was the father of the child as charged, this is founded, in part, on the supposition that this fact could not be taken for granted for any purpose, or ascertained in any other way. The 3d section of the act of 1811, does provide, “ that the court shall cause an issue to be made up, whether the reputed father is the real father of the child;” and it further provides, that he shall have a right to appear himself or counsel, and controvert by legal evidence, the charge alleged against him. Dut the amendatory act of 1816,

a modifies this provision, so as to make the necessity of ascertaining this fact, by the finding of a jury, depend on the will of the father. Its words are, “that hereafter, when a cause of bastardy shall be returned to the County Court, under the authority of the act of which this is an amendment, the said County Court shall have power and authority to cause to be summoned and empanelled a jury in the same manner asíales jurors are summoned, for the purpose of trying the issue of bastardy, if the defendantor reputed father shall demand the same.” Then it is apparent, that since this last law, if the father does not demand a jury, they need not be summoned, but the Court may ascertain the fact of the person charged being thefaUp0n the oath of the mother. But aside from these considerations, Lake’s not appearing, placed him in default, and amounted in legal estimation to an admission of his being the- father of the child, and of every other fact necessary to subject him to the forfeiture incurred. .

The most difficult question remains to be examined, and that is, whether the bond was properly taken to the Governor. On this subject, the statute is silent, and we are left to determine it from the nature of the proceedings, and the design of the instrument in question. The proceedings are not strictly criminal, neither are they in all respects dissimilar. They are required to be had mainly for the public good, though individual advantage may be the result. In their consequences likewise, they tend, at least, to punish the licentious father, who has been the guilty means of bringing into existence a helpless being, under circumstances of threatening poverty. In these respects, as well as others, they may be said to resemble punishment for crime. The bond too, though not in form a recognizance, is given to secure the attendance of the obligor at court, to effectuate a purpose in which the community at large are interested, and may, therefore, perhaps be embraced within the meaning of the statute, which requires recognizances of every kind whatsoever to be given to the Governor. a Upon the whole, I can perceive no stronger reason-for this bond being given to the Judge of the County Court, or any other person than to the Governor, and as the statute required it, without prescribing to whom it should be executed, we are left to the alternative of pronouncing it good as taken, or defeating the whole» -some provisions of the statute itself.'

Judgment affirmed.,,

Laws of Alabama p. 66.

Laws of Al. 216.