2 Stew. 395 | Ala. | 1830
It is not contended that there is any variance between the bond as declared on, and that reacl upon oyer. But in the first place, it is insisted that the judgment is erroneous, in having been rendered for a less sum than the penalty, by the Court, without the intervention of a jury. To this, it may be answered that the plaintiffs here cannot be • heard to complain of that as an error, which is manifestly for their own advantage. Again, the statute of 1811, concerning bastardy, prescribes no particular amount in which the justice is required to take the appearance bond. The design, however, was to enforce the appearance of the reputed father, that he might be re-bound by the Coutity Court, to prevent the child
As to the objection, that the defendants were not liable until it was ascertained by the finding of a jury that Lake was the father of the child as charged, this is founded, in part, on the supposition that this fact could not be taken for granted for any purpose, or ascertained in any other way. The 3d section of the act of 1811, does provide, “ that the court shall cause an issue to be made up, whether the reputed father is the real father of the child;” and it further provides, that he shall have a right to appear himself or counsel, and controvert by legal evidence, the charge alleged against him. Dut the amendatory act of 1816,
The most difficult question remains to be examined, and that is, whether the bond was properly taken to the Governor. On this subject, the statute is silent, and we are left to determine it from the nature of the proceedings, and the design of the instrument in question. The proceedings are not strictly criminal, neither are they in all respects dissimilar. They are required to be had mainly for the public good, though individual advantage may be the result. In their consequences likewise, they tend, at least, to punish the licentious father, who has been the guilty means of bringing into existence a helpless being, under circumstances of threatening poverty. In these respects, as well as others, they may be said to resemble punishment for crime. The bond too, though not in form a recognizance, is given to secure the attendance of the obligor at court, to effectuate a purpose in which the community at large are interested, and may, therefore, perhaps be embraced within the meaning of the statute, which requires recognizances of every kind whatsoever to be given to the Governor.
Judgment affirmed.,,
Laws of Alabama p. 66.
Laws of Al. 216.