
    Arba G. Hyde & wife vs. Alonzo C. Chapin & another.
    It is no defence to an action on a bond given under Eev. Sts. e. 49, § I, that no costs had been taxed and no process issued against the respondent in the original bastardy process, and that he had no property.
    This was an action on a bond, given by Alonzo C. Chapin as principal, and Pliny Chapin, the other defendant as surety, under Rev. Sts. c. 49, § 1, conditioned that said Alonzo should appear and answer to the complaint of the female plaintiff, the mother of his bastard child, at the court of common pleas, and to abide the order of the court thereon. The case is reported on the original prosecution, in 10 Met. 5; 2 Cush. 77; and 6 Cush. 64; and by the final judgment therein said Alonzo was adjudged the father of the bastard child, and was charged with the maintenance thereof, in pursuance of Rev. Sts. c. 49, § 4. Said Alonzo was defaulted at the term at which said order was passed, and the order had never been complied with. The costs had never been taxed in that prosecution, nor had any process issued against said Alonzo C. Chapin, although he was in the commonwealth. He had no property. The case was submitted to the court of common pleas, and by appeal to this court on the foregoing facts, with leave to enter such judgment as the law requires.
    
      H. Morris, for the plaintiff.
    
      R. A. Chapman, for the defendants.
   Dewey, J.

This case has been repeatedly before the court, and all the material questions as to the validity of the proceedings have been settled. The court, as will be seen by the case in 6 Cush. 64, affirmed the judgment in favor, of the present plaintiffs. The only further inquiry is as to the objection to the maintaining an action on the bond given by the defendant in the former suit.

I. As to the objection that no costs have been taxed in that suit. In the opinion of the court, that furnishes no ground of objection to maintaining the present action. This action is upon a bond for an alleged breach of that condition. That breach occurred upon the failure of the principal to appear in court and abide the order of the court, and give the proper security for supporting the child in accordance with such order, or be surrendered in custody on failure so to do. 2. Nor is it any objection that no process issued on said judgment against the principal in the bond, Alonzo C. Chapin, or that he might have been arrested on any warrant that might have been issued, or that he has no property. The breach occurred as already statéd, upon his failure to comply with the stipulations in the bond. Judgment must be rendered for the plaintiffs. The damages will be assessed as on a penal bond.  