Cooper v. Littlefield , 45 Me. 549 ( 1858 )

The opinion of the Court was drawn up by

Tenney, C. J.

This is a prosecution against the defendant, as the alleged father of the complainant’s bastard child, under R. S. of 1841, c. 131. Her accusation and examination under oath, &c., were duly taken by a justice of the peace, on Jan. 23, 1856. Thereupon a warrant was issued by the same justice, on Eeb. 13, 1856, for the apprehension of the accused, and that he be brought before him or some other justice of the peace, in and for the county, &c., to find sufficient sureties for his personal appearance before this Court, &a. Upon this warrant, the officer returned that he had arrested the defendant, and he, having given bond for his appearance at Court, as required by the warrant, was released from his arrest, and the bond returned with the warrant. The bond, executed by the defendant and two sureties, in due form, contains in its conditions the recital of the facts stated in the accusation and examination, and that the justice who took them ordered the defendant to give surety for his appearance at Court, to answer to the accusation.

The complainant seasonably filed in Court her declaration in proper form, that she had been delivered of a bastard child, which was begotten by the accused in the month of February, in the year 1855, in his dwellinghouse in West Gardiner, in the county of Kennebec, and that, being put upon the discovery of the truth, during the time of her travail, she accused the respondent of being the father of said child, and that she has always been constant in said accusation.

The defendant entered his appearance in the action, and filed a general demurrer to the declaration and the proceedings, which is joined.

It is objected, on the part of the defendant, that it does not appear that he was ever brought before any justice of the peace or magistrate, for a preliminary examination; and that the doings of the officer, in taking the bond, was unauthorized, and gave this Court no jurisdiction; and that the process is incomplete, and defective, because there is no record of any proceedings of the magistrate.

The copies, which are before us, show that the proceedings were authorized by law; that, upon the arrest of the defendant, he was brought before the justice of the peace who took the examination and issued the warrant, and that he was ordered to obtain a bond, with surety, and that there was a compliance with that order. The record, which the magistrate probably made, or which, if he did not, he may now complete, is not with the papers. But the defendant having submitted to the jurisdiction of this Court, and filed his demurrer, is precluded from making successfully the objections on which he relies. The defects referred to were in preliminary proceedings, if they really exist, which cannot avail the defendant upon the demurrer. The copies exhibit sufficient to have entitled the complainant to a judgment of filiation against the defendant, on proof of the facts as they appear in the documents. Those facts being admitted, as the case is presented, the demurrer was properly overruled, and the complainant is entitled to judgment thereon. Exceptions overruled.

Bice, Hathaway, Appleton, May, and Davis, J. J., concurred.

C A S E.S IN THE SUPREME JUDICIAL'COURT, POR THE EASTERN DISTRICT, 1858. COUNTY OE PENOBSCOT.