Harrington v. Ferguson

| Ind. | May 8, 1827

Blackford, J.

This was a motion by Ferguson, in the Circuit Court, for judgment against Charles fy William Harrington. There was no process nor pleadings; and, of course, there is no description on the record, by the plaintiff, of his cause of action. It appears, by a bill of exceptions, that Ferguson produced an order of the same Court of September term, 1818, against Charle? Harrington, to the following effect: That he was the father of a bastard child; that he should pay the mother 30 dollars in 30 days; and pay annually for the six succeeding years, 20 dollars, as the Court should direct, for the maintenance of the child, and enter into recognizance, with surety, for the performance of the order. It appears further, that a recognizance was entered into by William Harrington. The Circuit Court, upon this motion, with this order before them, gave judgment against Charles Harrington, the putative father, and William Harrington, the recognizor, for 120 dollars, the amount of the annual payments mentioned in the order.

The mode of proceeding in cases of bastardy, until tbe order by the Court of filiation and bastardy, is stated in Woodkirk v. Williams, Nov. term, 1820 ⁽¹⁾. This case presents the question, as to the mode of enforcing the order. That may he done by scire facias or debt, upon the order, against the putative father, or upon the recognizance against those who have entered intq it, in the name of the state, on the relation of the party entitled. The scire facias, or declaration, must describe the cause of action of the party claiming, show by what authority he has had the care of the child, and why he is entitled to the benefit of the order for maintenance. An opportunity is thus given to the defendants to make their defence, if they have any, and the cause proceeds in the ordinary mode. That an action of debt lies on such an order, made by justices of the peace, and that the order is conclusive against the defendants, whilst unreversed, is decided in Wallsworth v. Mead et al. 9 Johns. R. 367.

Hall, for the appellants. Húwk-, for the appellee. Per Curiam:

The judgment is reversed with costs.

(1) Vol. I. of these Rep. 110.