State ex rel. Bright v. Bright ( 1880 )

The opinion of the court was delivered by

MoIvee, A. J.

This was an action on a bond in the sum of $900, alleged to have been given to provide for the support of three illegitimate children. The condition of the obligation is as follows: “ That if the said Saulsberry Bright shall pay over to the court of trial justice for the county of Charleston, aforesaid, the sum of $75 per year for the support of the following named illegitimate children, now in the custody of their mother, viz.: Charlotte, seven years old; Elizabeth, five years old; and Emma Loüisa, one year and nine months old, until each of said children become twelve years of age,” &c.

It is very obvious that the bond sued upon is not such a bond as is contemplated by the statute, and, therefore, cannot be recovered upon as such. It is contended,, however, that the bond, if not good under the .statute is good at common law, being a voluntary obligation, so far as the defendant Smalls, who is a mere surety, is concerned. It may be that under the authority of the case of Commissioners of the Poor v. Gilbert, 2 Strob. 152, that if the bond was voluntarily entered into, and it was in such form as would practically effect the object contemplated by the statute, that though not good under the statute, it might furnish a good cause of action as a valid common law obligation. But in this case, even were we to assume that the bond was voluntarily given, so far as the defendant Smalls was concerned, it is clear that the bond is not only not in conformity to-the statute, but is not adapted to effect the object of the act. This object is to save the county harmless by securing the payment óf a certain specified sum, $25, annually, from the time of the birth of the child until it attains the age of twelve years; but if the child dies in the meantime the obligation to pay ceases. In this case, however, the bond provides for the payment of $75 annually, “until each of said children become twelve years of age,” and, therefore, if Charlotte or Elizabeth, one dr both, were to die to-morrow, the defendant, by the terms of this bond, would still be obliged to pay the sum of $75 annually until Emma Louisa attained the age of twelve years, while under the statute, the amount which he .would be required to pay would be only $50 or $25 per year, accordingly as one or both might die.

This bond also provides for the payment of this money “ to the court of trial justice for the county of Charleston,” and, bound as we are, to take judicial notice of the fact spread upon the legislative records of the state, that there are several trial justices in the county of Charleston, it would become a very perplexing question to determine which one of them could receive the money and give the defendant a valid discharge. In addition to this these officers are not, like the former boards of commissioners of the poor, charged with the duty of administering the fund provided for the support of the destitute, and, therefore, while there may have been some propriety in sustaining bonds of this character, made payable to the commissioners of the poor, as has been done in the case above referred to, and others of that' class, we are unable to see any reason why a bond providing for the payment to a trial justice who is in no way charged with the duty of disbursing the poor fund, should be sustained.

Again, it is ui'ged in behalf of the appellant that the bond or recognizance in question is a judgment of the court, and, not being appealed from at the time it was entered into, cannot now be questioned,' and to sustain this proposition the case of State v. Harmon, 3 Hill 275, is cited. That case, however, does not decide any such proposition. The defendants there, in answer to a scire facias to estreat the recognizance, insisted that they could not be made liable for the annual payment prior to the time when the party charged had been convicted, while, on the other hand, it was contended that they were liable from the time of the birth of the child. The court, while declining at that time to decide the question as to when the annual payments should commence, according to the proper construction of the act, held that as Harmon had been convicted at a former court, and, in pursuance of the sentence following such conviction, had entered into the recognizance in question, which, by its terms, provided for the payments to commence from the birth of the child, the court would presume that the sentence required the defendant to enter into such a recognizance, and the sentence— not the recognizance — being the judgment of the court, from which there was no appeal, could not afterwards be inquired into. In this case there was no trial or sentence, and there could not, therefore, be any judgment.

Finally, it is urged that the defendant is estopped by the payments made upon the bond from now denying ‘its validity. A sufficient answer to this is that it does not appear by whom the alleged payments were made. If made by the principal obligor, as would be the natural inference,'they certainly cannot affect the defendant Smalls, who alone is contesting the plaintiff’s right to recover, the principal obligor having permitted the case to go against him by default.

The judgment of the Circuit Court is affirmed.

Willard, C. J., and McGowan, A. J., concurred.