Byers v. State ex rel. Hutchison
20 Ind. 47
Ind.
1863
Check Treatment
Perkins, J.

This was a suit upon the following obligation :

“ State oe Indiana, Clinton County, ss.
“ The undersigned are bound to the State of Indiana in thе the sum of 400 dollars, subject to the condition following: Whereas, in a proceeding by the State on' the relation of Jane D. Hutchison against the undersigned, Joshua D. Byers, on a charge of bastardy, before Joseph Baum, a justice of the peace of Jackson township, Clinton county, Indiana, the said justice has this day required the said Joshua D. Byers to enter into this recognizance-bond. Now, if said Joshua JD. Byers shall appear in the Circuit Court of Clinton county, on the first day of the next term, to answer the said chargе, and shall not depart said Court without leave, and shall abide the *48judgment and orders of said Court in the ‍‌​​‌​​​​​‌​‌‌‌‌​​‌‌‌‌​‌​​​‌​​‌‌‌‌‌​​‌​‌‌‌‌‌​‌‌​​‍premises, then this bond shall be void.
“J. D. Byers. [seal.]
“J. B. Douglass, [seal.]
Dated the 80th day of April, 1861.
Approved by me the day and year aforesaid.
“Joseph Baum, Justice.” [seal.]

The Court overruled a demurrer to the complaint, and, after issues of fact were formed and tried, there was final judgment against the defendants.

The question arises upon the demurrer.

"Was the bond sued on a valid obligation ? It was executed in a bastardy case to save thе defendant from imprisonment in the county jail; and if a prosecution for bastardy is not founded on a criminal or a pеnal statute, but is simply for the enforcement of a civil obligаtion, then the bond was executed to escape imрrisonment for debt, in the ordinary acceptation of thаt term.

That the bastardy act is neither a criminal nor a penal ‍‌​​‌​​​​​‌​‌‌‌‌​​‌‌‌‌​‌​​​‌​​‌‌‌‌‌​​‌​‌‌‌‌‌​‌‌​​‍statute, is settled by numerous decisions in Kentucky,, of whose statute on the subject, ours is a copy. 1 M. and H. Dig. It has been thus treated in this Stаte; The State v. Evans, 19 Ind. 92, and Walker v. The State, 6 Blackf. 1; and such an act has been held, in Iowa, to impose simply a civil obligation, to creatе a debt, for the collection of which, under a constitutiоn forbidding imprisonment for debt, such imprisonment is unlawful. Holmes v. The State, 2 Green’s Iowa Rep. 501.

The bond, then, which wаs the foundation of the present suit, was required and taken by the magistrate without authority of law, because the statute ‍‌​​‌​​​​​‌​‌‌‌‌​​‌‌‌‌​‌​​​‌​​‌‌‌‌‌​​‌​‌‌‌‌‌​‌‌​​‍аuthorizing it was unconstitutional, and so far void, and not-law; and, further, the bond was, we may, say, forbidden by the constitution, the par*49amount law, and, hence, was taken, not only without law, but in violation of law; and the question arises, can such a bond be enforсed under any circumstances ? We think not. Such a bond is without a valid consideration, and that fact is a bar to an action upon it. Indeed, it is the settled law of this State, that where a bоnd or recognizance is taken by an officer or Court, аcting simply under statutory power, the instrument taken must be authorizеd by the statute or it will be void, and in suing upon such instrument the complаint must set out the facts showing that the bond or recognizancе was taken in a case where the law authorized it; and, in many cases, it must appear that it was • taken exactly, or substantially, in accordance with the statutory power. Myers v. The State, 19 Ind. 127; Macy v. Titcomb, id. 135; Butler v. Wadley, 15 Ind. on pp. 506, 507; Skelton v. Bliss, 7 Ind. 77; Ellis v. The State, 2 Ind. 262; Marshall v. The State, 8 Blackf. 162; Olds v. The State, 6 Blackf. 91; The State v. Lynch, id. 395 ; Spader v. Frost, 4 Blackf. 191; Martin v. Kennard, 3 Blackf. 430; Silver v. The Governor, 4 Blackf. 15; Parker v. Henderson, 1 Ind. 62; Orff v. Pullen, at this term; Germond v. The People, 1 Hill (N. Y.) Rep. 343; The State v. Inman, 7 Blackf. '225.

As tо when a bond, not specially authorized by, or not taken strictly pursuant to a statute, may be good, as a common lаw bond. See Marshall v. The State, Lynch v. The State, and Spader v. Frost, supra. The recognizance in the ease at bаr is not of this character. ‍‌​​‌​​​​​‌​‌‌‌‌​​‌‌‌‌​‌​​​‌​​‌‌‌‌‌​​‌​‌‌‌‌‌​‌‌​​‍The Court erred in overruling the demurrеr to the complaint.

Perhaps, by analogy to the case of Kreger v. Osborn, 7 Blackf. 74, the recognizance in the cаse before us might he held to operate as noticе to the principal in it to appear in the Court at the time, &c., named in it, and as an agreement to thus appеar, so that the Court at which the recognizance was mаde returnable, and to which it was returned, might *50proceed to a trial of tbe cause, ‍‌​​‌​​​​​‌​‌‌‌‌​​‌‌‌‌​‌​​​‌​​‌‌‌‌‌​​‌​‌‌‌‌‌​‌‌​​‍but this point we do not decide.

P. P. Davidson, for tbe appellants. Per Curiam.

Tbe judgment is reversed with costs. Cause remanded for fui’ther proceedings.