4 Ala. 328 | Ala. | 1842
1. The objection to the proceedings before the Justice of the Peace issuing the warrant and taking the bond of the defendant are not now open to examination. If defective to such an extent as to make them voidable, a motion to quash should have been submitted to the County Court at the proper time ; and it is not permissible, after the accused lias appeared and impliedly admitted himself to be regularly in Court, by asking and obtaining a continuance, to insist that the warrant under which he was arrested is invalid. [Walker v. Commonwealth, 3 Mar. Rep. 356; Schooler v. Commonwealth, 6 Lit. Rep. 89.]
2. The statute does not expressly direct to whom the bond taken for the defendant’s appearance shall be made payable; yet as the charge partakes of the character both of a civil and criminal proceeding, we think by analogy to the law providing for bonds and recognizances which concern the public, the bond Was properly made payable to the Governor. Such has been the decision in South Carolina on this point. [Commissioners, &c. v. Gaines, 1 Const. Rep. 459; See Lake & Barron v. The Governor, 2 Stewart’s Rep. 395.]
Again — we are inclined to think the bond taken in a case of bastardy, assimilates itself, in its legal effect quite as much to a bail bond in a civil case as to a recognizance in a State case; .and that it continues in force until the case is disposed of, or the sureties are discharged by an order for that purpose. It follows from what we have said, that the continuance of the case on the defendant’s affidavit, as to himself at least, kept it in Court, even if a bond was necessary to bind his sureties.
4. Under the act of 1811, an issue and trial by jury were indispensable in order to ascertain the paternity of a bastard child, but that statute has been so far modified by the act of 1816, as ■only to make it necessary to submit the case to a jury where the reputed father demands it. Such was the decision* of this Court in Lake & Barron v. The Governor, [2 Stew. Rep. 395,] and we are unwilling to depart from it.
• 5. Having ascertained the proceeding not to be strictly of a criminal character, we think the appearance of the defendant was not indispensable to authorize the County Court to determine the question of filiation. He could not at pleasure arrest the course of the Court, and leave no other alternative than to sue his bond; but the mother, with the assent of Court might, perhaps, have elected to sue the bond instead of submitting the case to the Court for its judgment.
6. In respect to the objection that it does not appear of re
7. The statute does not contemplate an award of execution such as has been made' in this case. It merely directs that the reputed father shall be condemned by the judgment to pay not exceeding fifty dollars annually, at the discretion of the Court, towards the maintenance and education of the child; and then it provides that the father shall execute a bond with surety for the payment of that sum, which shall be made payable to the Court and appropriated under its special order from time to time, so that it be not paid to the mother. This bond is to have the force and effect of a judgment, and execution may issue thereon as the sums secured by it become due. The award of execution on the judgment of the County Court was in my opinion unauthorized by the statute; the only regular mode of enforcing obedience to such a judgment is by an attachment to compel the defendant to execute a bond with surety to pay annually the sum adjudged to be proper for the maintenance of the child. The consequence, if my opinion were to prevail, would be to show that the award of execution is reversible, while the judgment itself would remain in full force. [Johnson v. Harvey, 4 Mass. Rep. 483.] My brothers, however, do not agree with me on this point, but