People v. Meighan — 1 Hill & Den. 298

Majority

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The People vs. Meighan and others.

Headnote

A bond taken by a justice of the peace, in a prosecution for bastardy, containing, iq, addition to the provisions required by law, others, imposing further obligations on the obligor, is void.

Accordingly, where M., being arrested on a charge of bastardy in a county other than the one where the warrant issued, entered into bond, conditioned to “ in. ' demnify any town,” &c. (as provided by 1 It. S. 650, § 8, 2d ed.,j and also, to “pay the sums for the support of the bastard and the sustenance of its mother, as the same is ordered by J. I. B. (the justice who issued the warrant,j and such other justice as shall associate with him, or as shall be ordered by the court of general sessions,” &c.: Held, an unauthorized bond, taken colóre officii, and therefore void in toto.

Quere, whether, independent of the statute against unauthorized bonds, &c. taken colote officii, the bond in this case might not have been upheld.

Demurrer to a declaration on a bastardy bond. The declaration recited a warrant issued by J. I. Borst, a justice of Schoharie county, against Meighan, on oath there made, charging •him with being the father of a bastard child; which path was made by Anna Trooman, a resident in that county; that the warrant was endorsed by' John O. Cole, a justice of Albany, and Meighan arrested in the county of Albany; that he was brought before said Cole, and there entered into the bond in question, the other defendants signing as his sureties. The bond, on oyer, appeared to be conditioned, that Meighan should “ pay the sums for the support of the said bastard, and the sustenance of its mother, as the same is ordered by the said Joseph I. Borst and süch

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other justice as shall be associated with him for that purpose, or as shall, at any time hereafter, he ordered by the court of general sessions of the peace of said county .of Schoharie; and shall fully and amply indemnify the said town, and every other county, town or city, which, may have incurred any expense for the support of said child or its mother, during her confinement or recovery therefrom, against all such expenses; and shall pay the costs of apprehending the said John Meighan, and of any order of filiation that may be made,” &c.

The defendants demurred, and the plaintiffs joined in demurrer.

S. Stevens, for defendants.

A. C. Paige, for plaintiffs.

On the case recited in the declaration, the only bond which the justice had authority to exact, is prescribed by l R. S. 650, 2d ed. § 8. And Meighan not choosing to appear at the sessions, and contest his liability, the condition of the bond is by that section limited to that part of the condition here, which provides for an indemnity to tire county, &c. The preceding terms of the condition pur: port to impose a positive and unqualified obligation, to pay any sum of money which might be ordered by the special session or .general sessions mentioned.. This was a material addition, which might prove much more onerous than the condition required by the section. The latter is generally to indemnify, &c. which may be by providing for the child, under some mutual arrangement, or in some other way. The former leaves hut one mode; the payment of the. money to be ordered. At the common law, we might have saved the good, while we rejected the bad part of the bond: or, perhaps it might have been valid for the whole. Of this it is not necessary to inquire; for the 2 R. S. 214, § 60, 2d! ed., absolutely destroys all and every part of any bond, taken by any officer by color of his office,

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in any other case or manner than such as are provided by law. By § 8, which I before cited, the justice is to take a bond in a certain form, which, in this instance, he materially departed from. It was taken by color of his office. In short, it is within the very words of § 60 above cited, which nullifies it; and there must be judgment for the defendants.

Judgment for defendants.