Simmons v. Adams

15 Vt. 677

• Court: Supreme Court of Vermont
• Decided: March 15, 1843
• Status: Published

Opinion

The opinion of the court was delivered by

Bennett, J.

It is claimed, in this case, that, by the principal’s appearing in the county, court and taking a trial, the recognizance was discharged, although he was found guilty, and adjudged the putative father of the child and charged with its support. The condition is, that the principal shall appear, &c., and “abide such order or orders as the said court shall make in-the premises.” Though the principal might surrender himself in discharge of.bail, or-be surrendered by the bail, yet, in such event, he would be ordered into custody, and the recognizance would then be discharged. As, in this case, there was no surrender, there was no right to order the principal into custody. Under the former statute, (Slade’s Comp. 367) when it was determined that the person recognized was chargeable with the support of the child, the court made an order for that purpose, and, also, that the putative father, during the term, should, with sufficient surety, enter into a recognizance conditioned for the performance of such order. When this was done the original recognizance, by the terms of the statute, was discharged. This implied that, until a second recognizance had been entered into, the first remained in full force. The settled construction of this act has been, when there has been no surrender, to hold the original recognizance as a security that the principal shall perform the orders of the court in the premises, unless discharged by a new recognizance. But it is said, the Revised Statutes should receive a different construction. The 7th sec. provides, that when the defendant has been found guilty, he shall be adjudged by the court to be the father of such child, and shall stand charged with its support, with the assistance of the mother, in such manner and in such proportion as the court shall judge proper. It is then made the duty of such father, during the term, to enter into a recognizance, with sufficient surety, that he will abide and perform the orders of the court in the premises. Upon this being done, the statute provides that the recognizance, entered into before the justice, shall be null and void. In the old statute the court are to make an order that the father enter into a recognizance, &c. By the Revised Statutes, he is to enter into a recognizance without a special order to that effect. There is no reason why lability, under the old act, upon the first recognizance, should be greater than under the Revised Statutes. Indeed, as it is expressly made the duty of the father to enter into a second recognizance, upon which the first is discharged, without a special order, the case would seem, at least, to be as strong, if not stronger, against the defendants, than under the old statutes.

The result is, the judgment of the county court is affirmed,