Berryman v. Judge of the County Court, 9 Ala. 455

Berryman v. Judge of the County Court

9 Ala. 455 | Ala. | 1846

COLLIER, C. J.

The act of 1811, enacts, that when any sigle woman who shall be pregnant or delivered of a child, which by law would be deemed a bastard, shall make *458complaint, to any one or more justices of the peace for the county where she may be so pregnant, or delivered, as aforesaid, and shall accuse any one of being the father of such child, it shall be the duty of such justice or justices, to issue process to the sheriff, or coroner, or any constable of such county, against the person so accused as aforesaid, and cause him to be brought forthwith before him. Further, it is made the duty of the justice, or justices, to examine the female in the presence of the man alledged to be the father of the bastard child, touching the charge against him; and if he, or they, shall be of opinion that sufficient cause appears, it shall be his or their duty, to bind the said person so accused in a bond with sufficient sureties, to appear before the next County Court of the county; and in the meantime to be of good behaviour. [Clay’s Dig. 133, 134, §§ 1, 2.]

When the case is returned to the County Court, the question of paternity is to be determined by the court, or to be ascer tained by verdict, if the defendant shall demand a jury trial. [C’s D. 134, & 8; 4 Ala. R. 328.] No question arises in the present case as to the regularity of the mode in which the .case was submitted to the jury. It is admitted by the defendant that the issue was properly framed.

In Trawick v. Davis, supra, it was said, that if the proceedings before the justice of the peace, were defective to such an extent as to make them void, a motion to quash should have been submitted to the County Court at the proper time, and came too late after the defendant had appeared, asked and obtained a continuance. We do not desire to be understood, as deciding, in the case referred to, that a motion to quash can be granted for a defect in the warrant issued by the justice, where the defendant appears in court, in obedience to a recognizance regularly taken, and in due form. However the law may be in such a case, we think the motion should not be granted, where, as in the case before us, the mittimus, the petition for a habeas corpus, and the recognizance all recite that regular proceedings were had before the examining justices. The loss or absence of the warrant certainly should not prejudice either party, and if it could not be found, it might be substituted by another con*459forming as near as practicable to it. Or if the defendant could make it appear that no warrant had ever issued, and that it was necessary to the protection of his rights that it should be produced, the court might in the one case dismiss, and in the other stay proceedings until the warrant or a counterpart was produced. But in the condition of the record, we cannot see that the defendant could have been injured by the absence of the warrant, and his admissions estop him from saying that one never issued, and there is nothing to warrant the inference that it was not entirely formal.

The objections to the verdict and judgment are not well taken. It is'explicitly affirmed by the jury, that the defendant is the real father of said child,” viz: of the “son of Ann Croft,” who is alledged by the verdict to be a bastard. The judgment, does not reiterate in totidem verbis the affirmation of the verdict, but it adjudges the defendant to pay the sum prescribed by law, as a consequence of being ascertained to be the father of an illegitimate child; and directs a bond to be executed with surety, for the payment annually of the sum adjudged. Perhaps the judgment may have been more technical, but it is certainly sufficient to conclude the matters in issue.

We can not doubt the liability of the party to pay costs, on whom the paternity of a bastard child is established by judgment. In all civil actions, the unsuccessful party is entitled to full costs, unless the law otherwise direct. [Clay’s D. 316, § 20.] So in qui tam actions, or in suits in the nature thereof, the party prevailing in the suit shall be entitled, to recover costs as in other actions at law. [Id. 331, § 100.] And in criminal prosecutions, the accused, if convicted, is chargeable with costs. [Id. 442, § 36.] Again; the woman making the complaint in a case of bastardy, if she fail to make it good is made liable for costs. [Id. 134, § 5.] Thus leaving it to be inferred, that if the individual charged shall be shown to be the real father, he shall pay all costs.

If the case at bar be neither a civil, criminal, or qui tam action, may it not be embraced under the general terms' “ or suits in the nature” of the latter ? We think it perfectly clear, upon the statutes cited, that the defendant was properly charged with costs ; and to this may be added that such *460has been the invariable practice in such cases, since the passage of the act of 1811. Contemporánea expositio fortissima est in lege.

It results from what has been said, that the judgment of the County Court is affirmed.