
    Grantz & Fralick vs. The State use of Crist, et ux.
    
    whereumin-the fo Natío]-,, there-Euní» (W on the other of the * h:Id to pay for the support of tin» child for fou* rears, <:c. pi oof of tl'tn'iiiil, lefiml, and a scire facias, (on a sveognizan'-e previously entered mío by the father in the sum of $30, conditioned to indemnify the county &<•.).stating that vhe counts had not boon indemnified, &<*, ’5 he defendant 1. J'nat the ihild was. at. its birth, común»,fed to the custody of íí H, and so remained. 2. Thai the mothei never had th<- custody of the ch;;d. 3 A sti 'mi. .ion to arbitration, an award, and offer of compliance, which was refused. 4. Thr . he '.urn of $30 a year we& more tü-m adequati f- r the maintenance of the Juki. 5. That the count j had not been d minified Issues to she í t at d 2d pleas, and gem rat demurrers to the other-., whicn demum rs the county court rule d good, and vevd'ets on the issues in fact for the p.amtiff, and damages ass< ssed tv, $120, and execution aw ' rded for $3o debt and costs, which w* »c taxed part in money and partin tobacco, with u memorandum t hat the j'adg aent was to he released on payment of 120 dollars, and cos a, — On appeal, judgment reve rued Quern. Whether or not a judgment for costs taxed in tobacco since the act of 1806, ch. 41* 8, 5, is *io ^erroneous?
    Appeal from Frederick County Court. The record states an affidavit made on the 23d of December 1811, by Cm'/and wife, before a justice of the peace, that the wile of Crist, before their marriage, had an illegitimate child by Cronlz, which child had been supported by the mother, (Crist's wife,) from the. 9th of March 1807, to the 14íh March 1809, (when she married Crist,) and by Crist and wife from the 14th of March 1809 to the 9th of March 1811, at which time the child was at the age of four years.. Order by the justice on the father, (Grantz,) to pay Crist and wife §30 annually from the 9th of March 1807, as an adequate compensation for the maintenance of the said illegitimate child for every year until the child should arrive to the age of seven years. Demand and refusal being proved, a scire facias issued on the 6th of January 1812, on a recognizance entered into by the defendants in Frederick county-court, on the first Monday in February 1811, for the sum of §30 current money, conditioned that Grantz should indemnify the county from any charges that might accrue from the maintenance of a male illegitimate child, begotten by the said Grantz on the body of a certain Chris-tena Linebaugh. &c. The scire facias stated that Grantz hath not indemnified the county of Frederick from any charges, &c. but assigns no sum or breach in which the county was damnified. The sheriff was commanded to make known to the defendants that they show cause why the said sqm of §30 ought not to be levied of their bodies, goods, &c. The defendants pleaded five pleas — I. That the illegitimate child wás at its birth committed to the custody of Henry Bowse, in whose custody it remained from the 9 th of March 1807", continually, until'the 9th of March 1811. 2. That the said Christena had not had the custody of the said child from the 9th of March 1807, until the 14th of March 1809; and that the said Crist and wife have not had the custody of the child from the 14th of March 1809 until the 9th of March 1811. 3. That Crist and wife ought not to have execution, because the illegitimate child mentioned in the said recognizance and order, was born on the 9th of March 1807, long after the birth of the illegitimate child mentioned in the recognizance on which the scire facias issued; and after the intermarriage of the said Crist with the said Christena, to wit, on the 2d of January 1811, Crist and wife, and Grantz, submitted to an award, &c. Award was made that Grantz should pay Crist and wife §80 on, &c. and for the payment of which he should give his bond. Bond tendered according to the award, which was refused by Crist and wife. That Frederick county, from the birth of the said child, hath in no wise been damnified or put to any charge or expense for the maintenance of the said illegitimate child, &c. 4. That Crist and wife ought not to have execution for the sum of §30 a year for four years — because §30 p. year, until the child arrived at the age of seven years, mentioned in the Order, was more than adequate for the maintenance of the said child, until the said child should arrive at the age of seven years. 5. That Frederick county hath in no wise been damnified or put to any charge or expense by reason, of or for the maintenance of the said illegitimate child. There were the general replications and issues joined to .the first and second pleas, and general demurrers to the 3d, 4th and 5th pleas. The county couvt. ruled the demurrers good. There were verdicts on the issues to the 1st and 2d pleas for the plaintiff, and damages assessed to §120. Execution awarded for g30 ct. mo. debt, and gil 60 and 797 w. tobacco costs. Memorándum. The plaintiffagrees to release the debt for which judgment is entered, on payment of $120, assessed by the jury, and costs. From this judgment the defendants appealed to this court.
    Taney, for the Appellant.
    This is a proceeding under the act of assembly of 17!)6, ch 34 The recognizance was entered into in February 1811. The order of the magistrate requires Granlz to pay 830 a year from the 9th of March 1807, to the 9th of March 1811. It appears by the affidavit and order, that the mother of the child was married to Jacob Crist on the 14th of March 1809. Among other pleas, the defendants pleaded a submission by bond after the birth of the child, to stand to the award of the persons therein named; an award by them, and an offer on his part to perform. This submission was before the recognizance. If the act of assembly is considered to be for the benefit of the mother, and to enable her to support the child, then her husband, who was entitled to receive the money, might submit the claim to arbitration, and by the bond, award, &c. would be barred of bis scire Jadas. The defendants also pleaded, that, the county was not dam-nified. If the nonpayment of the money is, under the act of assembly, a breach of the recognizance, then this plea was good, and the plaintiff, instead of demurring, ought to have replied, setting out the order of the magistrate, the demand and refusal to pay, and there could be no breach of the recognizance before it was given. The mother maintained the child until her marriage, afterwards the maintenance was that of her husband, in suing for which the wife ought not to have joined. The judgment is given for the debt in the recognizance, with costs taxed in tobacco. By the act of 1806, ch. 41, s. 5. all taxations of costs must be in dollars and cents.
    
    Figman, for the Appellee.
    The demurrer to the 3d plea, and judgment of the court below, upon the demurrer, ought to be supported, because Crist and wife could not submit the matter in controversy to any arbitration. The act of 1781, ch. 13, the act of 1785, ch. 47. and the act of 1796, ch. 34, must all be taken together, and construed as if they were but one law, the two last being supplements to the first. The recognizance was given for the benefit of the state, to prevent bastards from being a burthen to the state, and to provide a competent support, for them. By the acts of assembly above referred to, the county of Frederick was damnified, and received an injury from the time the child was born. In the order of the justice of the peace, set out in the record, it will be seen that Christena Crist, the wife of Jacob Crist, 
      had the. cave of the child from the 9th of March 1807, the day of its birth, for the order states, that on the 9th of March 1811, “it was of the age of four years.” Mrs Crist had it from the 9th of March 1807 to the 14th of March 18o9„ and Crist and his wife had it from the ¡4th of March 1809 to the 9th of March 1811. The Sd plea also sets out, that the agreement to refer was made on the “2d of January 1811,” so that by the defendant’s own showing, from the 9th of March 1807, the birth of the child, to the 2d of January 1811, almost four years, no sort of provision was made by Grants for its support. These acts of assembly have not left it in the power of the parents of bastards to say what shall or shall not be sufficient for their maintenance. If they had, these children would sometimes be provided for, and sometimes not; and the very evil these acts were made to prevent, would still exist. Formerly these wretched children were half naked and half starved, from the neglect of parents, who were ashamed to own them, or they were thrown upon the generosity of the public, for charity, and became a nuisance to society; and this would, be the case again, if fathers were permitted to delay their support as long as they pleased, or to fix for them, without affection and love, what they would judge to be enough at a protracted period. The act of 1796, eh. 84, lays (he ground work, of this scire facias. It says, upon the application of the mother. or other person, who has the care of the child, verified by oath or affirmation, that no money has been received from the father, or securities, for the use or maintenance of said child, a justice of the peace shall issue an order upon the father. &c. to pay such sum of money annually, not exceeding @30, as the said justice shall direct, and upon service of the order, and affidavit of the service, and that the money was no I paid, the clerk is authorised to issue the scire facias. By turning to the order of the justice of the peace in the record, it will be seen all this has been done, and nothing more is required to entitle the state to the scire facias for the use of the mother, or oti.er person, who has the care of the child. The father, to be sure, may appear to the scire facias, and prove, if he is able, that he has maintained the child, and taken due rare of it; but he cannot, according to the good sense and policy of the laws, defend himself by showing there was an arbitration about it; nor can he say the county has not been damnified as long as he has made no provision for the child, because the very birth of the child, and no provision being made for it, is an injury to the county. The oath before the justice, and justices’ order, entitles Crist and wife to receive the money; there could not be two orders, one for Crist and wife, and one for Mrs. Crist in her own name, her marriage prevemed her from having an order for her separate use. There is a demurrer to the fourth plea, which was not considered in the court below sufficient, and ought not to receive a replication. The pie;* states, that 830 per annum, allowed by the justice of the pean in the order, is more than adequate for the maiute-ii.uk e of the said child until it shall arrive to the age seven years. '1 he act of 1796, ch. 34, gives the justice of the peace a right to allow any annual sum, not exceeding 830, of course no tribunal could legally alter the sum fixed by the justice of the peace, as long as he is within the limits v.f 830. The fifth plea to which a demurrer was entered, is also insufficient in law. It states that Frederick county hath not bee,, damnified. The acl of 1796, eft. 34, is the true source of authority for Ibis &cire facias, and authorises it to issue upon the order contained in the record. ll «iocs uoi require any greater injury than the want of provision for the child, and this want of provision is to be made known by the mother, or the person or persons having the care of the child, on oath, then the order issues, and upon the service of it, and oath that it was served, and the money therein mentioned was not paid, the clerk is authorised to issue the scire, facias; under this act of assembly the county is then considered damnified. It is contended that the judgment of the court, after the verdict was gi\en by the jury, is proper and good. This scire facias is not like one to revive a judgment out of date, or against executors, or on recognizances, issued at common law'. By the act of ¡796, ch. 34, the court have a right to decide on these recognizances, without any im-parlance or delay, and to bring the matter fairly to trial in a short summary way; and of course, as much strictness in the ¡ roceedings is not required as upon our common writ of scire facias. The jury in this case assessed the damages to 8120, and although damages could not be given on a scire facias to revive a judgment in the general for delay of execution, yet in .he summary proceeding authorised by the act of 1796, ch. 34, it musí necessarily often be required. The justice of the peace is authorised to allow as high as 830 per annum for seven years, and where three or four years becomes due, and an order issue, the damages must exceed the sum of the recognizance; but though the verdict of the jury is for 8120, the judgment of the court is for the penalty in the recognizance, and costs, as may be seen by referring to the judgment, with a memorandum that the plaintiff released the debt upon the payment of 8120 by the jury assessed. As this is a proceeding entirely depending upon the acts of assembly, it is not meant to urge any practice in England, or our own courts, upon the common writ of scire facias. Under our acts of assembly it is more a summary proceeding than any thing else, and these acts do not confine the courts to any particular mode of giving verdicts or judgments, but make it their duty to decide upon the '•'■matter fairly, without any imparlance or delay.n By turning to the order of the justice of the peace, it will appear the oath was made on the 23d of December 1811, the same day the order was served. In the third plea it is stated, the parties left the matter to arbitration on the 2d of January 1811, long before any order passed, and the scire facias did not issue until the 6th of January 1812, almost one year after the submission men-*' tioned by the defendants in the third plea; no provision being made for the support of the child. In the court of King’s Bench, on an appeal, supposing error in a judgment giving on a scire facias, because the jury gave damages, the judgment was supported, because it had been given on the merits. In the case of Knox vs. Costello, S Burr. 1791, Mr. Justice Wilmot, (after stating the case particularly,) said “the court ought to support a judgment recovered upon the merits.”
   JUDGMENT REVERSED.  