Gray v. Folsome

The opinion of the court was delivered by Royce, J. This case comes before us on special demurrer to the defendants plea in bar. The declararán is in common form on a recognizance entered into by these defendants, for the appearance of Jefferson Leavitt to answer a prosecution by the plaintiff for bastardy. It gives a history of that prosecution, including the order of filiation, and negates a performance of the condition of the recognizance by Leavitt, as well in reference to that order, as in [456] °^ier particulars. Tiie defendants pleaded a surrender of Leavitt in court, pending the prosecution. A prosecution for bastarday is in effect but a civil suit, though conclucted under some of the forms of a criminal proceeding. Its object is wholly pecuniary, and bail for the costs of prosecution is required, as in ordinary suits between individuals. The bad on the part of the defendant may surrender him in court, in discharge of their recognizance; other bail may be substituted; and tho=e who have been thus discharged are rendered competent as witnesses. All this was decided in Mather vs. Clark, 2 Aik. 209, and is well settled. That decision lias established the analogy between (his species of bail and that on mesne process in civil suits, and bail for appearance in criminal cases; the bail having a right in all these cases to surrender their principal into court, in discharge of themselves. It follows that a proper surrender of the principal by bis bail has the effect wholly to discharge their recognizance; and hence the position of the plaintiff’s counsel, that the recognizance must still remain in force, to insure a compliance with the order of filiation, cannot be supported. The subject matter of the present plea is therefore sufficient, and it only remains to consider the alleged defects in the manner of setting it forth. It is said the plea does not allege, on what the surrender of Lea-vett was made, or that the defendants surrendered him in performance of their recognizance. This objection is in part misconceived, since the plea does allege, that by making the surrender the defendants “ have fully kept and performed the condition of their recognizance. As the surrender of Leavitt in court was not an act stipulated for in the recognizance,.it should have been pleaded as matter of discharge, and not of performance. But as this is a defect of form merely, and not insisted on by the demurrer, we are at liberty to give the facts pleaded their legal operation. In answer to the other ground of this objection, we think it is to be intended that the surrender was made in the suit for bastardy, and consequently that the purpose and effect of the surrender were inferences, sufficiently manifest without any express averment. It is also said that the plea is argumentative, but we discover no sufficient ground for this objection. The remaining objections would be well founded, were this a plea of performance, as they appear to suppose. But this is wholly to mistake the character of the plea. Being no other than a plea in discharge of the recognizance, it is properly confined to the allegation of those facts which constitute the discharge. Judgment of the county court affirmed.