CHAPTER III.

OF BASTARDY.

Mother may commence action.-Any unmarried woman, who has been delivered of, or is pregnant with, a bastard child, may make complaint thereof, in writing, under oath, before any justice of the peace, charging any person with being the father of the child, and the justice must thereupon issue his warrant, directed to any sheriff or constable of the state, commanding him to pursue and arrest the accused person in any county of this state, and bring him forthwith before the justice to answer such complaint. 5614.

Proceedings on return of warrant.-On the return of the warrant, the justice, in the presence of the accused person, is required to examine the complainant under oath, and the accused must be allowed to ask complainant any question he may think necessary for his justification, all of which questions and answers must be reduced to writing by the justice and subscribed by complainant. 5615.

Continuance. If either party desire it, upon good cause shown, the justice may continue the cause for a period not to exceed ten days, upon the defendant's entering into a recognizance to the State of Ohio to appear at any time fixed by the justice for the hearing of the complaint, with sufficient security, in a sum not less than three hundred nor more than six hundred dollars, to answer the complaint and abide the order of justice. 5616.

Settlement before justice.—If, upon such examination, or at any time before judgment in the court of common pleas, the accused pay, or secure to be paid to the complainant, such sum or sums of money, or property, as she may agree to receive in full satisfaction, and further give bond to the

State of Ohio, with sufficient surety to be approved by the justice or judge, conditioned to save any county, township, or municipal corporation, within the state, free from all charges toward the maintenance of the child, then the justice, court, or judge should discharge the accused on his pay. ing the costs of prosecution. Such agreement must be made or acknowledged by both parties in the presence of the justice or judge, whose duty it is to enter a memorandum of the same upon his docket, or cause the same to be made upon the journal. 5617.

Trustees may bring suit.-When the mother of a bastard neglects to bring suit for its maintenance, or having commenced suit fails to prosecute it to final judgment, the trustees of any township interested may bring a suit, in behalf of the township, against him who is accused of begetting the child, or may take up and prosecute a suit begun. by the mother, unless sufficient security is offered to save the township from expenses connected with the maintenance of such child. 5637. Trustees may sue upon bond.

The trustees of a township

1 Under the bastardy act of February 2, 1824, no compromise can be made which will prevent the complainant from prosecuting, except in the time and manner provided in the act, and a payment of $100 to the mother, not in presence of the justice, in consideration of a release, under seal, is no defense to the prosecution by her. State v. Mormon, 2 W. L. M. 308.

In an action on a promissory note given by a party in custody before a justice of the peace, on a charge of being the father of a bastard child, to the mother of such child, for a compromise of such prosecution, and for the support of the child, the facts that the agreement of compromise was not acknowledged before the justice, that no memorandum of the same was entered on his docket, and that no bond was given conditioned that the child should not become a township charge, constitute no defense to the action. Nor does an answer in such action, averring that the child "lived but a few days after birth," and that no expenses were incurred in the support of such child, state facts sufficient to constitute a defense to the action. Maxwell v. Campbell, 8 Ohio St. 265.

in which a bastard child becomes a charge, may sue and recover upon any bond given to the State of Ohio in any proceedings against the reputed father of the bastard child, and all the provisions of the statutes contained in chapter 3, division 7, title I of the revised statutes are applicable to all cases in which the trustees are authorized to commence or prosecute a complaint against the reputed father of an illegitimate child. 5638.

Accused may be bound over.-When a settlement is not effected before the justice, as above set forth, it is the duty of the justice to bind the accused to appear at the next term of the court of common pleas, in a bond to the State of Ohio, with sufficient security, in a sum not less than three hundred and not more than six hundred dollars to answer the accusation and abide the order of the court thereon; and on neglect or refusal to give such bond, the justice must commit the accused to the county jail, there to be held to answer the complaint. 5618.

Discharged by recognizance.-The accused may be discharged from custody upon giving such a bond as last above set forth, in a sum of not less than one hundred nor more than six hundred dollars, approved by a judge of the court of common pleas, or probate court, and filed in the office of the clerk of the court of common pleas. 5619.

Transcript must be filed by justice.-The justice before whom the examination was had, must, within thirty days thereafter, file with the clerk of the court of common pleas a certified transcript of the proceedings, together with the recognizance, and all other papers in the case. 5620.

Continuance of the cause.-The cause may be continued by the court, for sufficient reason; and the recognizance will continue in force until final judgment, unless the sureties surrender the accused, and ask to be released, or the court deem the recognizance insufficient. In either of which cases it may order a new bond to be taken, cancel the first, and commit the accused until a new recognizance be given. 5621, 5622.

Forfeiture of recognizance.-In case the accused fails to appear at the term of the court to which he is recognized, bis recognizance will be forfeited; and if a verdict and judgment be rendered against him, the amount of the forfeited bond may be applied in payment of such judgment. 5623.

Trial by jury-When the accused fails to appear, or pleads not guilty, in the court of common pleas, he must be tried by a jury; and at the trial the examination before the justice may be given in evidence, and the mother is a competent witness. In every case, where he so desires, the defendant must be permitted to appear and defend, either in person or by counsel.1 5624, 5625.

Proceedings upon finding of guilty.-If the jury find the defendant guilty, or if he confesses in court that he is guilty, he is to be adjudged the father of such child, and will stand charged with the maintenance thereof, in such sum or sums as the court may direct, with the costs of prosecution; and it is the duty of the court to require him to give security to perform such order. In case the defendant fails to give security as required, and pay the costs, the court must commit him to jail, there to remain until he complies with the order of the court. But, in case of such commitment, the defendant is entitled, after he has been confined in prison for the period of three months, to the benefit of the statutes for the relief of insolvent debtors. But, before being entitled to such benefit, the putative father is required to give at least three days' notice to the complainant or her attorney of his intention to apply for the same." 5626, 5627.

'If the mother of an illegitimate child is living, it is erroneous to try the cause in the court of common pleas without her presence and testimony. Baxter v. Columbia Tp., 16 Ohio. 57.

2

An order of maintenance under the bastardy act is a judg ment of a court of competent jurisdiction, and can not be collaterally impeached. Such order may be enforced by execution, as in other cases, the security given under the act being resorted

Death of mother not to abate suit.-The death of the mother will not abate the suit, if the child is living; but a suggestion of the fact should be cutered upon record, and the name of the child substituted for that of the mother. and a guardian al litem appointed, who will not be liable for costs; and, in such case, the testimony of the mother, taken before the justice, may be read in evidence. 5628.

Death of child.-The death of the child is not cause of abatement, or bar to the suit; but the court trying the case must take such death into consideration in fixing the amount to be paid. If the child die after judgment rendered, and before the expiration of the time limited for the payments, the court may, on motion and notice, reduce the amount of the judgment in such sum as may be proper.' 5629, 5630.

Proceedings when defendant can not be found.-After a warrant has been issued for the defendant, and the return shows that he could not be arrested by the officer, the justice must, upon demand, make out and deliver to the complanant, the trustees of the township, or their attorney, a transcript of the proceedings, including copies of the complaint and warrant, with the return thereon. 5631.

An order of attachment must be made and issued by the clerk of the court of common pleas, when the trustees, or complainant, have filed the said transcript in his office, together with an affidavit showing:

to only in case of the inability of the defendant. Lessee of Darby v. Carson, 9 Ohio, 149.

The putative father of a bastard child can not be discharged from an order for the maintenance of the child by proceedings in bankruptcy. In such case the mother has preference over the assignee in bankruptcy, and the assets of the insolvent will be first applied to the satisfaction of the order of the court in her favor. Hawes v. Cooksey, 13 Ohio, 242.

1A prosecution under the bastardy act does not abate by the death of the child pending the prosecution, but the case may proceed to judgment. Hinton v. Dickinson, 19 Ohio St. 583.