Majority
p. 361WILLIAM CLOUD vs. The STATE OF DELAWARE.
Headnote
A certiorari lies on an order of filiation made by a justice of the peace in a case of bastardy.The order of filiation is a judgment,
A justice’s court is a court of record,
Certiorari to Justice Wilds,
Record, to wit:
The State of Delaware vs. William Cloud, Jr. In a case of bastardy. Complaint made 9th August, 1837, before Justice Wilds, on the solemn oath of Maria Rash, that on the 4th June, 1837, she was delivered of a female bastard child, and that William Cloud, Jr., is the father of said female bastard child. Process issued and returned cepi corpus, 10th August, 1837, “when defendant appeared with approved surety and entered into a bond of indemnity, to the trustees of the poor, in the sum of $1G0; with William Cloud, Senr., surety before me, James D. Wilds, the justice aforesaid, when I did further order that thé said William Cloud, Jr., pay to the said Maria Rash five dollars lying-in expenses, and one dollar and fifty cents per month, for each and every month, from the birth of said child until it shall arrive at the full age of seven years, if so long chargeable. The said allowance to be paid to the said Maria Rash, or
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such person or persons having charge or keeping of said female bastard child.”
The exceptions were, 1st, Because the record showed that the justice did not try the cause, nor did he decide and determine that the said William Cloud, Jr., is the father of said bastard child:
2d, Because the indemnity bond was taken to the trustees of the poor, whereas the same should have been executed to the State of Delaware:
3d. Because the said order of the justice ascertains no certain day at which the monthly allowance shall commence ; the time of the birth of the child not being ascertained by the justice; nor does the order specify whether the month’s allowance shall be for calendar or lunar months.
The act giving jurisdiction in cases of bastardy to justices of the peace, directs that “ when it is determined that a person is the father of a bastard child, the justice shall order that the said person with sufficient surety or sureties become bound to the State of Delaware, by a joint and several obligation, in the penal sum of one hundred and sixty dollars; with condition, &c. &c., and that the justice shall further order that the said person pay for lying in expenses, and a monthly allowance for maintenance of the child every calendar month from the birth until the child shall attain to the age of seven years, if so long chargeable.” (Digest, 71.)
The first question that arose in the argument was, whether a certiorari would lie on a justice’s order of filiation; which the court decided in the affirmative. The order of filiation is a judgment; the justice’s court is a court of record,[1] having the power to fine and
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imprison ; and is subject to the supervisory power of this court on certiorari, to review and correct its proceedings. This court has all the powers of the Court of King’s Bench on this subject.
The judgment in the case was reversed, on the ground taken in
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the first exception, that there had been no hearing of the canse, and no determination that the plaintiff in error was the father of the child,
Frame, for plaintiff in error.
Rogers, jr., for the State.