3 Me. 433 | Me. | 1825
The opinion of the Court was delivered as follows by
The single question in this case is, whether the condition of the bond declared on has been broken. To de - termine this question we must ascertain the meaning and extent of the condition. The statute of 1821, ch. 72, in the first section, provides that when a person is charged in the manner the section prescribes, he shall be held to give bond with sufficient sureties to appear at the next Court of Common Pleas, “ to an<;swer to such accusation and abide the order of Court thereon.”
The Court decided that the action could not be maintained, because the magistrate should not have taken a recognizance but a bond. Parsons C. J. in delivering the opinion of the Court and comparing the two kinds of security, and the advantages of a bond in preference to a recognizance, says, “ The party or his sure- “ ties cannot be relieved against the condition of a recognizance; “but they may against the penalty of a bond.” “If he be “ bound by bond, although the condition may be broken at law, ££ yet the Court can relieve against the penalty on payment of C£ merely nominal damages, if the complaint be found false, or if “ the putative father otherwise give security for his contribution “ to the maintenance of the child ; or the penalty may be reduc- “ ed, so as to cover and be a security for that maintenance.” This language of the Chief Justice is all founded on the principle that the condition of the bond extends to a performance of the order of Court consequent on the adjudication of the accused as the reputed father of the child ; and seems to establish the construction for which the plaintiffs’ counsel has contended. On the whole, we are of opinion that the plea in bar is bad and insufficient in law.