
    William Porter v. The State of Ohio.
    
      1. Cases of bastardy may be continued from term to term, as other cases, and for causes other than those'named in section 4 of the act; and when continued for any cause, it is the duty of the court to bind the accused in a recognizance conditioned that he will appear at the next term to answer the complaint, and abide the order of the court — the words “that the accused person shall be forthcoming at the next court after the birth of the child,” etc., contained in section 4 of the act, not being intended to express the condition of such recognizances, but the object of taking them.
    
      2. Recognizances so taken are not in the nature of bonds of indemnity,, and when forfeited an action may be maintained thereon by the State-of Ohio, and the full amount of the penalty, with interest from the-date of the forfeiture, recovered, without averring or showing any loss or damage sustained by the mother of the child, or the township-where it may be born.
    Motion for leave to file a petition in error from Fayette county.
    The original ease was an action by the State of Ohio-against William Porter, upon his recognizance entered into-in the Court of Common Pleas for the appearance of Isaac N. Porter in said court, to answer to a complaint of bastardy made by Sarah E. Robinson. The petition sets forth the proceedings before a justice of the peace on complaint' of said Sarah E. Robinson, her examination agreeably to the provisions of the bastardy act, and the fact that the-said Isaac N. Porter, having failed .to make payment to the satisfaction of the complainant, on the requisition of the-justice entered into a recognizance to appear at the next term of the Court of Common -Pleas to answer the complaint. The petition further alleges that said Isaac N. Porter appeared in court at its next term, on the 28th day of February, 1871, agreeably to the terms of his recognizance, and that the cause was then continued to the next term of said court, to be holden on the 20th day of Juno,, 1871, and the said Isaac N. Porter required to enter into a recognizance, with good and sufficient sureties, in the sum of five hundred dollars, for his appearance at said next term. This recognizance was entered into accordingly by said Isaac N. Porter, and by the plaintiff in error as his-surety. By the recognizance the obligors acknowledge that they owe the State of Ohio, for the use of Jefferson township (the township of complainant’s residence), the sum of five hundred dollars, subject to the condition that, if said Isaac N. Porter should appear at the next term of the court, on the first day thereof, and so continue from day to day, and not depart the court without leave, and answer to said charge of bastardy, then the 'recognizance should be void. The petition then alleges that said Isaac Ni Porter failed to appear at the next term of the court, and that he and his said surety, the plaintiff in error, were duly called and defaulted, and the recognizance forfeited, and demands judgment for the said sum of five hundred dollars, with interest from the date of the forfeiture.
    A demurrer to this petition having been overruled, the defendant (the plaintiff' in error) filed an answer. In this ho alleges that the bastard child was born long before the making of the complaint; that during the whole of said February term, 1871, of the court, and also during several subsequent terms of the court which intervened between that term and the commencement of the suit on the recognizance, the complainant resided in said Fayette county, and was able to attend court; that said complaint is still pending and undetermined; that the said William Porter, the surety in the recognizance, did not at the June term, 1871, or at any other term of the court, object to the continuance of the recognizance; that no township or county has been charged with the maintenance of the child, or has been in any respect damnified or put to expense on its account; and that the action on the recognizance was brought by the prosecuting attorney of his own motion, and without .any request or authority from any township or county, or from the said Sarah E. Robinson.
    To this answer a demurrer was filed by the state, and .sustained by the court, and thereupon judgment was entered .against the plaintiff in error for the amount of the recognizance, with interest from the date of its forfeiture. On petition in error to the District Court the judgment was affirmed, and leave is now asked to file a petition in error ¡here to inverse the judgment of both courts.
    
      Harrison & Olds, with whom was H. B. Maynard, for the motion:
    
      A proceeding in bastardy is a special statutory proceeding. It was wholly unknown to the common law.
    Whatever jurisdiction, therefore, the Common Pleas had in the case now under, examination, it derived from the statute. Furthermore, inasmuch as the statute prescribes the mode and manner in which such jurisdiction shall be exercised, the proceedings are erroneous unless the court .acted in the prescribed mode and manner.
    By the third section of the bastardy act (S. & C. 117), in case the parties do not agree upon a compromise, and the defendant does not give bond to the trustees of the township, conditioned to save such township free from all charges toward the maintenance of the child, the justice is required to bind him in a recognizance to appear at the next Court of Common Pleas, with sufficient security, in not less than $200, nor more than $500, for the benefit of the township in which such bastard child shall be born, to answer such accusation, and to abide the order of the court thereon.
    
    And by the fourth section, if, at the time of such court, the woman be not delivered, or be unable to attend, the court shall order the renewal of the bonds of recognizance, that the accused shall be forthcoming at the next court after the birth of the child at which the mother shall be able to attend; and the continuance of such bonds shall be entered' by order of the court, unless the security shall object thereto, and shall have the same force and effect as a recognizance taken in court for that purpose.
    The bonds of recognizance referred to in these sections must be in writing, and signed by the principal and his .sureties.
    See Swan’s Treatise, 394, 395, where the form of such bond of recognizance is given.
    In other words, as the Supreme Court of Massachusetts has held, under a statute passed in 1785, from which the bastardy act of Ohio seems to have been copied, the security to be taken of one accused as the putative father of a bastard child, must be by bond, and not by recognizance. 
      Merrill v. Prince, 7 Mass. 394 [396]; Johnson v. Randall Ib. 340.
    The reason of the-rule is stated in the case first cited, and" applied forcibly to the case at bar. That the legislature-did not intend a recognizance as in a criminal case shall be taken, appears clearly and conclusively from the condition required : The obligors bind themselves, not only for appearance of defendant, but to abide the order of the court on the trial of the case. It has the same effect as a bond given for the performance of the final order. It is a bond of indemnity. See Taylor et ux. v. Hughes et al., 3 Greenl. 433.
    No bond of recognizance was taken either by the justice or the Common Pleas. A recognizance in the ordinary form taken in criminal cases, was taken in open court, and a memorandum made on the minutes, without being signed: or sealed.
    The recognizance sued upon was void:
    1. Because the court had no power or authority to require-the party to give it, nor to take it.
    2. Because it was not signed or sealed by the parties-sought to be charged upon it.
    3. Because the terms of the recognizance are not such as the statute prescribe.
    Upon the point last stated, the court will notice that, by the fourth section, the person charged is not required to attend or be present in court until such time as the mother of the' child is able to attend after the child is born.
    There is no allegation in the petition in the Common Pleas, that at the June term, 1871, the mother of the child was able to attend at court, or that she did attend; yet at that' term the recognizance was forfeited.
    Nor is it alleged that she attended at any subsequent, term, or that she was able so to attend.
    Under the statute, in order to fix a liability upon a surety, the following facts must exist:
    1. Birth of the child in Ohio.
    
    
      2. Ability of the mother to attend the court after suck birth.
    
    
      3. The continuance of the bonds of recognizance till the first term, of the court after such ability of the mother.
    4. The actual attendance of the mother at such term.
    
    5. The non-attendance of the person charged as the father at such term.
    
    It will not surely he claimed, that, if the mother is unable to attend the court for five successive terms after the birth of the child, the person charged must, notwithstanding such inability of,the mother, attend at each of those terms.
    Perhaps it might be his duty so to attend, if the surety objected to the continuance each term. But if he do not -object, then, by the provisions of section 4, it becomes the duty of the court to continue the bonds from term to term; .and this is so, whether the person charged is present or not.
    In criminal cases, a recognizance is ta,ken at one term for the appearance of the defendant at the next term, and then expires; and, therefore, a new recognizance must be given, or the former one be forfeited, if the case be continued. Hence, to prevent a forfeiture in such cases, the defendant must personally attend the court.
    But in the class of cases to which this belongs, it is different. In such cases, by the express provisions of the statute which creates and regulates the proceeding, he is only required to be present at the first term the mother is able to and does in fact attend the court.
    Consequently, to make out a default against the defend.ant- in such cases, it must be shown, by the records of the court, not only that he did not attend, but also that the mother did attend. Penalties and forfeitures are not favored; and, therefore, everything requisite to establish them must be shown affirmatively and positively, and not assumed from inference or by implication.
    The condition of the recognizance which the justice as well as the court ordered and required the defendant to enter into, was wholly different from that required by the statute. If the bonds required and given had been conditioned as prescribed by the statute, the records of the court would not have shown a breach of the condition.
    The record in this case does not show that the personal presence in court of Isaac N. Porter was necessary for any purpose at the term of the court in June, 1871, when the-recognizance was forfeited.
    If the complainant had appeared at that term, and demanded a trial of the case, a trial would have been had,.in the absence of the defendant.
    In Ohio, as in Kentucky and Indiana, a proceeding in-bastardy is. a civil, and not a criminal proceeding, and it is held there, that the trial of a bastardy case may be legally had without the personal presence of the defendant. Chandler v. Commonwealth, 4 Met. 66; Stone v. The State, 33 Ind. 538. See also 9 Ohio St. 402, 405; 15 Ohio St. 45; 3 Cushing, 452, 454, and 8 Ib. 294, 298, to the effect that the proceeding is a civil, and not a criminal proceeding.
    In Marston v. Jenness, 11 N. H. 156, it was held that a complaint under the New Hampshire act “ to provide for the maintenance of bastard children,” is a civil suit, although the forms of proceeding are in some particulars of a criminal character.
    
    II. The Common Pleas erred in rendering judgment on the recognizance, for the penal sum named therein, before judgment in the bastardy case, and we claim that, after judgment in a bastardy case, if suit be brought on a bond given either before or after judgment in the principal case, and judgment can be technically given for the penalty of the bond, the sum actually due must be ascertained and determined, and leave be given to take out execution for the sum adjudicated to be actually due.
    Under the bastardy act, bonds of recognizance, that is, bonds conditioned for the appearance of the defendant, are given in a penal sum; but the. obligors can be compelled to pay only what may, in equity, become due by a failure to perform the condition. The bond is one of indemnity only. State v. Mitchell et al., Wright, 464.
    The bastardy act of Ohio, as above remarked, is almost a literal transcript from the Massachusetts, statute on the same subject. And see Jordon v. Lovejoy, 20 Pick. 86.
    There must, then, be a final judgment against the defendant in a bastardy suit, before suit can be brought on Ms bond to recover the amount due upon it in equity. As above shown, the proceeding is a civil, not a criminal proceeding. From that fact, as in cases of arrest, attachment,, and the like, wherein bonds are given, the obligors are liable only to the extent of the injury sustained by the person for whose use and benefit the bonds are executed.
    Furthermore, the third section of the act provides that the bonds of recognizance shall be taken for the “ benefit of the township in which the child shall be born.” The proceeding is not for the benefit of the mother, except in so far as the means furnished to the mother may enable her to maintain the child, and thereby release the public. The fact stands admitted by the pleadings that no township, nor any county, nor the state itself, has been injured in any way, nor put to any trouble or expense, by reason of or concerning said bastard child. It is also admitted in the pleadings that the suit on said forfeited recognizance was not brought for nor in the interest of the mother of the child. What right or authority, then, had the prosecuting attorney of Fayette county to bring and prosecute the suit thereon? Upon the trial of the case in bastardy, the defendant therein may be adjudged to be not the father of the child; that is, the very claim, to secure 'the payment of which the recognizance was required by the court, may be adjudged to be a false 'claim. Until the alleged claim is established by a trial and judgment in that suit against the defendant, and he shall fail to comply with such judgment, no right of action on the recognizance will accrue; nor can the amount to be recovered thereon be ascertained until after such trial and judgment.
    It has been held that the money adjudged to be paid for the support of an illegitimate child is payable to the mother only during the time she maintained the child. Perkins v. Mobley, 4 Ohio, 668.
    
      We think the following cases tend to show that no right of action accrues on a bond given in a bastardy case, until .some township in Ohio is injured by reason of the child becoming a township charge, and there is an adjudication as to the paternity of the child. Hootman v. Shriver, 15 Ohio St. 43; Perkins v. Mobley, 4 Ohio St. 668; 9 Ohio St 405.
    III. Even if the petition in the Common Pleas had contained a cause of action, and the answer had not constituted a defense, the court erred in rendering a judgment for $542.50 — being $42.50 in excess of the penalty of the recognizance.
    
      Gregg & Creamer, contra:
    I. There is no defect in the petition as to parties plaintiff. S. & C. 953; Code, sec. 27; Gamble v. The State, 21 Ohio St. 183.
    The bastardy act must be understood as authorizing an action on the recognizance of a defendant for his appearance; else the object of the statute is necessarily defeated.
    Where the statute gives a right of action, but does not designate the kind of action or prescribe the mode of proceeding therein, such action shall be the civil action of the code, and proceeded in accordingly. Civil Code, sec. -605.
    II. It is not necessary to allege in the petition that the complainant or the child was or is.a resident of any particular township. This is a conclusion which we draw from .the language of the bastardy act, sections 1 and 3. 1 S. & C. 176, 177.
    III. The petition need not-state that any person, corporation, or quasi corporation has been injured. This proposition is stated on the hypothesis that the obligation sued on is a recognizance in fact and not a bond of indemnity merely.
    IV. The bastardy act provides for undertakings of two -distinct and different classes, to wit, bonds of indemnity, .and recognizance for the appearance of the defendant.
    
      Section 1 provides for a bond of indemnity after a compromise of the case, before the justice, with the mother.
    Section 6 provides for an order requiring the defendant to give security that he will comply with the judgment of the court, which is in effect a bond of indemnity.
    
    Section 1, on page 180 of S. & C., refers to the bonds of indemnity, as mentioned in the notes (a) and (b) as above set forth, and none other.
    Sections 3, 4, and 8 provide for undertakings for the appearance of the party to answer the complaint. These are obligations of record in the Court of Common Pleas, containing a conditional penalty, to which the parties become' subject on their failure to comply with the condition. This must be the conclusion, when the object to be attained by their being entered into is considered.
    Y. This is a suit on an undertaking of the latter class, to wit., for a penalty. And it must be treated the same as a suit on an ordinary recognizance in a criminal proceeding. Because—
    The proceedings in bastardy are quasi criminal in their .nature:
    
    The object to be attained by a recognizance in a bastardy proceeding is the same as that in a criminal case. The form of the recognizance is substantially the same as in criminal cases.
    The form of recognizance being the same, and the object to be attained the same as in criminal proceedings, and the proceedings being quasi criminal in their nature, this suit ought to be treated under the same general rules as a suit on a recognizance in a criminal case.
    YI. The presumption is that the state of facts existed which authorized the court to make the order requiring the defendant to renew his recognizance. Lessee of Combs Sf Living v. Lane, 4 Ohio St. 148.
    VII. The statute authorized the court to require the defendant to renew his recognizance for his appearance at the next term. Bastardy Act, secs. 4, 8.
   Welch, J.

Whether the facts set forth in the petition, and answer show a right of action in the state to recover the amount of the recognizance, and whether interest on. that amount should be allowed from the date of its forfeiture, are the questions presented by the record.

For the plaintiff in error it is contended, that the court had no authority to take the recognizance in question, for the reason that the child was already horn, and the complainant was able to attend court, and, therefore, it was not one of the cases provided for in the fourth section of the-act, in which alone the court is authorized to take a recognizanee. They say that the court has no power to continue-the case, or. to require or take any recognizance of the party accused, except in cases where the complainant is still undelivered or is unable to attend, and where the surety objects to the continuance of the recognizance; and that even then the court is only authorized to take a recognizance-conditioned for the appearance of the accused at the next court after the birth of the child at which the mother of the child shall be able to attend,” and can not take a recognizance in the usual form, as was done here, for his appearance at the next term. Counsel also contend that the recognizance is inoperative because it was not signed by the parties. They say it is a mere bond of indemnity, and that the obligors are not liable thereon until a judgment is rendered in the case, or till some party interested has been damnified, and then only to the amount of the damage actually sustained. They also deny the right of the state-to recover interest on the amount of the recognizance.

We entirely dissent from these views. The third and fourth sections of the act are loosely and in artificially drawn,, but we think there is little difficulty in understanding their real object and meaning, which it seems to us counsel wholly fail to perceive.

The third section of the act requires the justice, when the accused fails to comply with the provisions of the first section, to “ bind such person in a recognizance, to appear at the next court of common pleas, ... to answer such-accusation, and to abide the order of the court thereon.”' The fourth section is as follows:

“That if, at the time of said court, the woman be not delivered, or be unable to attend, the court shall order the-renewal of the bonds of recognizance, that the accused person shall be forthcoming at the next court after the birth of the child at which the mother of the child shall, be able to attend; and the continuance of such bonds shall be entered by order of said court, unless the security shall object thereto, and shall have the same force and effect as a recognizance taken in court for that purpose.”

The instrument required by the third section is a “ recognizance,” and not a bond, and need not be signed by the parties. The justice is required to “bind” the accused “ in,” that is, by, “ a recognizance.” By this recognizance-he is bound to do three things; namely, to appear at next court, to answer the complaint, and to abide the “ order” of the court. Evidently the “order” of the court here spoken of is its order touching the personal appearance and presence of the accused, and not the final judgment of the court in the case. The surety does not undertake for the payment or satisfaction of the final judgment, but only for the defendant’s appearance and submission to such further order as the court may make touching his continuance or future appearance in court. When the defendant appears-in pursuance of his recognizance, or is surrendered by his bail, the power to make the necessary “ order,” for the-renewal of his recognizance, or in default thereof, for his. committal to custody, is inherent in the court; it is necessarily incidental to any such proceeding, and need not be given by express statutory provision. The object of the fourth section is not to give authority to take a recognizance, but to provide for the continuance of the case under certain circumstances, and to provide an easy method of continuing the defendant’s obligation and security for his appearance from court to court, until the child shall be-born and the mother able to attend. By the words, “ that the accused person shall be forthcoming at the first court .after the birth of the child at which the mother of the child shall be able to attend,” we do not understand that the legislature intended to specify the condition of the recognizance, but merely to specify the object of the recognizance or recognizances, which the court should find it necessary to take, to the end “ that the accused person should be forth coming,” etc. A recognizance with such a condition would be a novelty in judicial proceedings. It is highly improbable that the legislature would so suddenly change the condition of the recognizance required in the third section, namely, to appear in court to answer the charge, and abide the order of the court, and substitute for it the ill-defined obligation to “ be forthcoming,” and to “be forthcoming” at a time uncertain, and which the accused could probably ascertain no otherwise than by attending court from term to term. Any such construction of the statute would deprive the court of all power to continue the case for any -causes except those named in the .fourth section. If the child was born, and the mother able to attend, the court would be powerless to continue the case for any reason or necessity whatever; and if the court- did continue the cause it would thereby discharge the defendant, being powerless to order or take any recognizance for his future appearance. Such a construction of the statute can not be .admitted, and was never intended. The fourth section is to be read as though it simply provided that the cause should not be tried till the child was born, and the mother able to attend, and that in the meantime the court should require the necessary recognizances — “bonds of recognizance” — to insure the defend'ant’s ultimate attendance, effecting that, wherever the sureties do not object, by a simple order continuing the old recognizance, instead of taking a new one.

If we are right in thus construing the statute, the recognizance is not a bond of indemnity, or in the nature of such a bond, and the state, the obligee named therein, is the proper party, in the absence of legislation to the contrary, to bring a suit thereon, and is entitled to bring such-suit upon breach of its condition, without showing that' any special damage or loss has accrued. For whose ultimate-use the money, when so recovered, shall be held or paid, is-a question outside of the case.

We think, also, that the court did not err in allowing interest on the amount of the recognizance from the date of its forfeiture. By the terms of the recognizance its amount then became an absolute and unconditional “ debt due” from the recognizors to the State of Ohio, and as such liable by express provision of the general interest law to interest at the rate of six per cent, per annum.

Motion overruled.  