Jordan v. Lovejo

Shaw C. J. delivered the opinion of the Court. These pleadings, though somewhat long and complex, present but a single question, which arises on St. 1785, c. 66, § 2. The statute requires the person charged as the father of a bastard child, to give bond with sufficient sureties, to appear at the next court, to answer to such accusation, and to abide the order of court thereon. Such was the condition of the bond declared on in this case, as set out on oyer. To a plea of general performance, the replication of the plaintiff sets forth that she did enter her complaint at the next court, that the bond was continued, pursuant to the statute, there being no objection thereto by the sureties, to the next term of the court in September, that the defendant at that term did not appear, but made default, which was duly entered of record The defendant attempts to avoid this breach, by rejoining that the complainant herself would not have been ready for trial till the October term of the Municipal Court, and that the defendant was ready, at that time, to appear and answer. He further relies upon the averment, that there has never been any judgment of the Municipal Court, charging him as the putative father, and no order of maintenance. The only question, in the opinion of the Court, is, whether the replication discloses a breach of the bond, that is, whether the bond is forfeited, by a default, without a judgment of filiation. It appears sufficiently clear from the statute, though in many respects obscure, that there can be no adjudication without a trial, and that there can be no trial, until the respondent has appeared to answer. The statute provision is, that the party shaL be charged notwithstanding his denial, and shall give security as well to perform the order of court, as to save the town harmless, unless the pleas and proofs and the circumstances shall be such, that the jury shall find him not guilty, [88] and the verdict of the jury shall be final. The piovisions imply that the respondent is to appear and answer, and put himself on trial; and if he do not appear, the court can render no judgment, nor make any order, and can only enter his default. • The consequence is, that upon such default, the only remedy of the complainant is upon the bond, and the whole object and purpose of the bond would be defeated, if such default and failure to appear and answer, were not deemed a breach of its condition. March 26th. By the statute, a continuance of the bond to the next court, the sureties not objecting thereto, shall have the same force and effect, as a recognizance, taken in court for the next term. Here it appears, the bond was filed at the August term, and a continuance of it entered, so that it stood in force for the next term, at which the complaint was duly entered. The default being then duly recorded, W'as, in the opinion of the Court, a breach of the condition of the bond, upon which this action can be maintained. The parties being out of court, and the prosecution at an end in the Municipal Court by this default, any offer to appear at a subsequent term would be nugatory and void, if it could be. proved ; it could not avoid the effect of a breach once established, and the averment to that effect, in the rejoinder, is no legal answer to the breach set forth in the replication. The obligation is adjudged forfeited. On a subsequent day, a prayer was made by the defendants for a hearing in chancery. It was resisted on the ground that, by the terms of the statute as above cited, such bond is to have the force and effect of a recognizance, and that upon the forfeiture of the recognizance there can be no hearing in chancery. Merrill v. Prince, 7 Mass. R. 396. Shaw C. J. It is a general rule of law, in this Commonwealth, a rule prescribed by statute, (St. 1785, c. 22, § 1,) that every bond and obligation with penalty, shall be liable, after forfeiture established on issue or by default, to an in-quiry in chancery, on which the judgment shall be entered, not for the amount of the penalty, but for such sum as may be found equitably due. This is a remedial provision, and ought [89] to have a liberal construction to promote the equitaule intent, and is not to be controlled in any particular case, unless by some well settled rule of law, or plain statute provision. The statute relied upon is that above cited, that a bond so continued shall have ihe same force and effect as a recognizance taken for the next term. The Court are of opinion that the construction contended for would be too literal and not conformable to the intent of the legislature. The object was to provide, that although the condition in terms is, to appear at that term, yet if the sureties do not object, it shall enure as an obligation to appear at the next term, with the like force and effect, as if taken for that term. One thing may be like-another, in one respect, and yet not alike in all respects. It is not to be construed without plain and clear words, to have been the intention of the legislature to provide, that obligors, principal and sureties, should be held to pay the whole penalty of the obligation, though by the death of the child, or other cause, a small part of it only would discharge the whole claim, to which the statute intended to make the putative father liable. The prayer to be heard in chancery is granted.