
    Catharine Roth v. John Jacobs, Jr.
    "Where, under the bastardy act of February 2, 1824 (S. & C. 176), on complaint of an unmarried woman pregnant with a child, which, if born alive, may bo a bastard, the person accused of being the father of the child is under recognizance to appear at a term of the court of common pleas to which the-cause had been continued awaiting the birth of the child, it is error in the court to dismiss the proceeding, at such term, on the ground that the complainant had, during the continuance, married a man other than the defendant, and that the child had not yet been bom. Notwithstanding such marriage, the question remained, whether the defendant was the father of the child or not.
    Error to the court of common pleas of Loraine county» Reserved in the district court.
    August 13, 1867, Catharine Roth, an unmarried woman, resident of Loraine county, made complaint, under oath, to a justice of the peace'of the county, that she was then pregnant with a child, which, if born alive, would be a bastard, and that John Jacobs, Jr. was the father of the child. Thereuiion a warrant was issued by the justice, and Jacobs-was arrested and brought before him, and the examination-required by the statute was had, and the complaint was-found by the justice to be true, and Jacobs was recognized, to appear and answer the complaint at the next term of the-court of common pleas, to be held in November, 1867. At that term, the child not having been born, the cause was continued until the March term, 1868, and Jacobs renewed his-recognizance. Between the terms, to wit, January 27th, 1868, the complainant intermarried with Ludwig W. Dilg» Afterward, at the March term, 1868, of the common pleas, on motion of the complainant, her husband was joined with-her as a party plaintiff; and, on motion of Jacobs, the complaint was dismissed on the ground of said marriage and that the child had not yet been born; and judgment was-entered against her for costs. The plaintiff took exception to the dismissal of the cause, and filed her petition in erroi in the district court, and assigned the dismissal as error. The cause was reserved in the district court for decision here.
    
      W. W. Boynton for plaintiff in error:
    S. & C. 176; 4 Ohio St. 668; 1 Bouv. 160; 6 Binn. 283; 4 T. R. 356; 8 East, 193; Hardin’s Rep. 479; 2 Kent’s Com. 219, and notes, 222; Austin v. Pickett, 9 Ala. 102; 4 Hayw. 221; 2 Sneed, 215; Welker v. West, 1 Murph. 319; 3 Hawks, 623; Hyde v. Chapin, 2 Cush. 77; Baker v. Baker, 13 Cal. 87; Gordon v. Amidon, 36 Vt. 735; 3 Wallace, 175; 1 Bish. on Mar. & Div. 448; 9 Beav. 552, 555; Cope v. Cope, 5 Car. & P. 604; 13 Ves. 56; 8 East, 143; 2 Stra. 925; 1 Q. B. 444; 5 Cl. & F. 163, 215; 2 Starkie’s Ev., part 1 (7 Am. ed.) 196, and cases there cited ; 2 Wright (Pa.) 439; 1 Barb. Ch. 375; 3 id. 132; 3 Paige, 139; 2 Allen, 453; 2 Brock. 256; 1 Grant, 377; 5 Casey, 420; Code Nap. 87; 7 Humph. 410; 6 How. (U. S.) 550; 12 Geo. 155; Brown’s (Pa.), R. 47; 2 Munf. 442; 3 id. 589; 4 Shep. 38; 9 Vt. 129; 8 Gratt. 20; 15 N. H. 45; 15 Barb. 287; 29Ind. 483; 22 E. L. & E. R. 164; 18 id. 247; 11 C. B. 512; Guilford v. Oxford, 9 Conn. 321.
    
      O. W. Johnston and J G. Hall for defendant in error.
   By the Court :

We are of opinion that the common pleas erred in dismissing the complaint.

The first section of the act of February 2, 1824, “ for the maintenance and support of illegitimate children,” provides : “ That on complaint made to any justice of the peace in this State, by any unmarried woman resident therein, who shall hereafter be delivered of a bastard child, or being pregnant with a child which, if born alive, may he a bastard, accusing, on oath or affirmation, any person of being the father of said child, the justice shall take such accusation in writing, and thereupon issue his warrant,” &c.

If. at the time the complaint is made, the child with which the complainant is pregnant, if born alive, may he a bastard, the father of the child may, under the statute, be charged with the maintenance thereof. The subsequent marriage of the complainant cannot relieve the father of the child from this liability, unless, in consequence of such marriage, the child, if born alive, would not be a bastard. That is not the necessary effect of the marriage upon the question of the legitimacy of the child, for it cannot be conclusively presumed that the man who marries a pregnant woman is the father of the child with which she is pregnant. He may not have known that she was in that condition when he married her. And even if he did know it, he may not be the father of the child. It may, therefore, if born alive, be a bastard. Notwithstanding the marriage, the question remained, whether the defendant was the lather of the child or not.

In such cases the public is interested in having that question determined, so that the father of the child, if born alive, may be charged with its maintenance, as provided in the bastardy act, and the public be exempted from that expense.

The order of dismissal must be reversed, and the cause remanded for further proceedings.  