State v. Bradley

1 Blackf. 83, 1820 Ind. LEXIS 21

Opinion

Scott, J.

This was a case of bastardy, brought before the Switzerland Circuit Court on a recognizance entered into before a justice of the peace. The Circuit Court dismissed the case. because the prosecution was carried on in the name of the state j and because the recognizance was for the appearance of the defendant on the first day of the May term of the said Court, and was dated on the same day. The statute on which this proceeding was founded, has given no direction in whose name the proceedings are to be carried on. The mother is made a competent witness. The jury are not authorized to find a verdict for her, nor the Court to give her a judgment

Footnotes

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(1). She cannot then with any propriety be considered a party. On a similar statute in Kentucky, the proceedings are in the name of the commonwealth. Hard. 290, 479. The name of the state has been used here to carry the provisions of the statute into effect; and we see no good reason for the objection (2).

Lane, for the state. Caswell and Test, for the defendant.

We think the other objection equally untenable. In the case of Pugh v. Robinson, 1 T. R. 116, it was decided, that where the cause of action is stated to have accrued on the first day of the term, the declaration may be entitled of the term generally. The Court will presume the transaction to have taken place in the morning, before the hour of opening Court. This was probably the case in the instance before us; and the recognizance might be returned to that term without any repugnancy.

Holman, J., was absent in consequence of indisposition.

Per Curiam.

The judgment is reversed, with costs. Cause remanded, &c.

Ind. Stat. 1817, p. 229; — 1823, p. 225.

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Vide Woodkirk v. Williams, in this Court, Nov. term, 1820, post.