ing intercourse with her. This was not error; it was proper to show the relations existing between the parties, their acquaintance and intimacy, of whatever character it was. (b) In such a case, where the defendant has introduced, in evidence, statements of relatrix -- made out of court that defendant was not the father of her child the state may introduce the testimony of other of her statements made out of court, prior to the trial and in the absence of defendant, as in the nature of impeaching evidence, only; Rainey v. State, ex rel., 127-243.

980, 983. Style of suit-Evidence Trial. A prosecution for bastardy is a civil action and the rules of practice, applicable to other civil actions, apply to it, except where a different and special procedure is provided. This ruling, settled by a long line of cases, harmonizes with the letter and spirit of this article of the statute (33) and especially with the sections 980, 983. The only reasonable conclusion to be drawn from these sections, the general provisions of the Code and the numerous cases bearing on the subject matter is, that in the prosecution for bastardy a preponderance of the evidence is all that is necessary to establish the case against the defendant. In all civil actions a preponderance of the evidence only is necessary to establish the affirmative of an issue, whatever the nature of that issue may be (Cont. Ins. Co. v. Jachnichen, 110-59), and in such case a judgment will not be reversed if there is evidence fairly tending to support it; Reynolds v. State, ex rel., 115-421. 981. Bond to appear in circuit court- - Commitment. Justices of the peace have jurisdiction in bastardy proceedings. A judgment rendered by a justice is a bar to all other prosecutions for the same purpose; Maker v. State, ex rel., 123-383.

A bond having been executed, conditioned as prescribed by this section, if the defendant absconds and fails to replevy or pay the judgment rendered against him, there is a breach of the bond and a right of action thereon at once accrues. No demand is necessary as a condition precedent to the institution of suit. Nor is a judgment of forfeiture required by statute to be entered against the obligors on the bond as a condition precedent to the bringing and maintaining a suit on such bond. An action lies immediately, for condition broken, in the name of the state; Clark v. State, ex rel., 125-5.

986. Trial in absence of defendant. This section authorizes a judgment against a defendant in a bastardy proceeding, who is not in custody, that he shall be committed to jail until the judgment in favor of the relatrix be paid or replevied. So, in an action by relatrix on a constable's bond, for allowing the defendant to escape from his custody, the constable and his sureties may plead, in mitigation of damages, the subsequent arrest of the defendant in the bastardy proceeding and his committal to jail in pursuance of the judgment, thus limiting the recovery on such constable's bond to the damages actually sustained by reason of the escape; i. e., nominal damages; State, ex rel. v. Caldwell, 115--9.

991. Judgment against defendant. Where, in a prosecution for bastardy, the record of the justice of the peace, after his finding the evidence insufficient to sustain the charges that the defendant was the father of the bastard child, proceeds it was "therefore adjudged that he be discharged," there is, in effect, a finding that the defendant is not guilty. When this is followed by a judgment that he is discharged, this is a final judgment, from which an appeal may be taken, and from such judgment the state may appeal; M'Coy v. State, ex rel., 123-162,

992. Order to pay - Commitment. It is within the discretion of the court, in making an order for the maintenance and education of the child, to render its judgment so that deferred payments shall draw interest; Morris v. State, ex rel., 115-285.

Where a bond is executed in a bastardy proceeding, conditioned that the defendant would appear at the following term of the circuit court, to answer the complaint in the action, and not depart without leave, and abide the orders and judgment of the court, or failing therein, would pay such sums of money to such persons as might be adjudged by the court, and the defendant, principal obligor, absconds and fails to replevy or pay the judgment rendered against him, there is a breach of the bond, and a right of action at once accrues. In such case a demand is not necessary, as a condition precedent, to the maintenance of an action on the bond. So, as section 1721 applies only to recognizances given in criminal causes, a judgment of forfeiture is not required to be entered against such defendant and his surety as a condition precedent to an action on the bond. An action may be instituted, in the name of the state, immediately for condition broken. In such case, this statute provides that the stated

payments shall, in all cases, be made to the mother, if living, with the exception that if she be an improper person the payments shall be made to some person designated by the court. It will be presumed, in the absence of any showing that a particular case comes within the exception, that such payments were ordered paid to the mother. Wherefore, a complaint which alleges that the court, in the action for bastardy, rendered judgment in favor of the plaintiff and against the defendant for a sum certain, is not bad for a failure to aver that the court adjudged the payment of any sum to the relatrix; Clark v. State, ex rel., 125-3.

This section, as to the release of a defendant who has been committed to jail on his failure to replevy or pay the judgment entered against him in a bastardy proceeding, contemplates a motion or application to be made for such release, and that the court shall have proof, in support of such application, of his inability to pay. If it shall affirmatively appear that the defendant has been imprisoned in the county jail for the period of one year, and is unable to pay or replevy the judgment, the court shall make an order discharging him. If there is any evidence tending to support the finding of the court the case must be affirmed on appeal. In such case it is necessary to show imprisonment for one year. This is done by proof of the order of committal, the fact that the sheriff took defendant into his custody, and that the prisoner continued in custody until he was discharged; State, ex rel. v. Woodward, 123-32.

994. Suit, how dismissed. Where a defendant, against whom bastardy proceedings have been instituted by a female, pregnant at the time, with full knowledge of all the facts, agrees, in consideration that the proceeding against him be discontinued, to pay a certain sum for the support of the child, and the prosecution is dismissed accordingly, he will not be heard to say he was not liable for the child's support; when, by the lapse of time, or for other reasons, it may be impossible to maintain bastardy proceedings against him or any one else; so, he can not, after the birth of the child, procure the cancellation of notes executed in favor of the mother in pursuance of the agreement to dismiss the suit, on an assertion that he is not the father of the child; Moon v. Martin, 122-211.

In a bastardy proceeding, to which the state is not made a party, and which the defendant controls and carries on by himself, by means of fraud practiced on the relatrix and the court, ostensibly in behalf of the state, so that, in fact, he was at once plaintiff and defendant, although nominally only a defendant, the judgment obtained can not have the slightest strength, when attacked in a proper manner; so that, an admission procured from the relatrix — a weak minded deaf mute- that provision for the maintenance of the child has been made is of no effect, and an order of dismissal thereupon entered, is a nullity and no bar to a further prosecution; Gresley v. State, ex rel., 123-73.

A bastardy proceeding was commenced before a justice of the peace; warrant for the arrest of defendant issued and was returned non est inventus. The cause was heard in the absence of the defendant and certified up to the circuit court (§ 986). Being afterward arrested the defendant appeared in the circuit court and answered; for defense setting up that, after this cause had been certified to the circuit court, relatrix had instituted proceedings against him before another justice of the peace, charging him with being the father of the same bastard child; in which subsequent proceeding the relatrix had filed an admission that suitable provision for the maintenance of the child had been made and that, by leave of court, the cause was dismissed. The reply, filed on behalf of relatrix, alleged that the defendant, his father, his attorney and the justice by whom the pretended judgment was rendered, acting for the defendant, with the fraudulent purpose of defeating the action, received and misled the relatrix, a person of the age of seventeen years, uneducated and of weak mind, and without the knowledge of the prosecuting attorney induced her to institute the subsequent prosecution and by other and further misrepresentations and deceit procured her to acknowledge that provision had been made for the support of her bastard child when, in fact, no such provision had been made. A demurrer to the reply was properly overruled. The second proceeding was a nullity and no bar to the action pending in the circuit court; Ice v. State, ex rel., 123-591.

Proceeding in bastardy instituted by an infant female before a justice of the peace, in the absence of the defendant - he having fled before arrest. His friends paid to the relatrix a sum of money, and thereupon it was shown to the justice, by relatrix and her attorney, that suitable provision had been made for the child and a judgment of dismissal was entered. Such judgment bars a future prosecution -un

less it is made to appear that the court was misled and deceived as to the provision made for the bastard child; Maker v. State, ex rel., 123-378.

ARTICLE 35— CONTEMPT OF COURT.

1013, 1014. Proceeding - Decision - Appeal. No great strictness is required in the construction or form of a rule requiring a defendant to show cause why he should not be punished for contempt. In cases where an information is filed it is sufficient if the rule informs him, in a general way, of the nature of the charge preferred against him—it is enough that the rule conveys such notice as will apprise him of the fact that a charge is pending against him and put him on inquiry. If he is put on inquiry he is chargeable with knowledge of all the facts which a reasonably diligent search would reveal to him. Where, then, an order was entered requiring parties to an action of ejectment to show cause why they should not be punished for contempt in resisting the officers charged with the execution of a writ of possession, and such parties responded to the rule by an answer, it was proper for the court to inflict punishment without issuing an attachment; for the wrong doers had appeared voluntarily and were in court. Under section 1013 there is no necessity for issuing an attachment when the parties come in to court voluntarily. If there were, however, it would not apply to the case of parties charged with contempt who are parties to the action in which the judgment was rendered, on which the process resisted was issued; in which case section 1014 would govern, and under it the issuing of an attachment is not necessary; Hawkins v. State, 125-571.

Section 1013, regulating proceedings for contempts, has no application to an attachment for contempt of one who disobeys a subpoena commanding him to appear before a grand jury as a witness. Section 1014, which gives direction to the statute, expressly excepts from its operation witnesses subpoenaed to testify in any case, civil or criminal; Baldwin v. State, 126-30.

ARTICLE 37 — DIVORCE.

1031. Petition for divorce-Residence. This section in its declaration that the bona fide residence of the petitioner for divorce shall be proved by at least two witnesses who are resident freeholders and householders of the state is mandatory. The residence of the petitioner in the state and county for the required length of time is a jurisdictional fact, which must be averred in the petition and proved according as the statute requires, before the court will have any power or authority to decree the divorce (Maxwell v. Maxwell, 53-363). The provision of this section can not be satisfied or set aside by a tacit agreement or admission of the defendant, nor in any other manner. There must be actual proof, to the satisfaction of the court, by witnesses possessing the statutory qualifications; Prettyman v. Prettyman, 125-150. 1038. When prosecutor to resist. This statute makes it the duty of the prosecuting attorney, whenever a petition for divorce remains undefended, to appear and resist the petition. In the absence of an appearance by the defendant in a proceeding for divorce it becomes the duty of the prosecuting attorney to enter an appearance for the defendant and resist the petition, by taking all proper steps to prevent the granting of a divorce, unless the facts make a case entitling the petitioner to a judgment. Where, however, the defendant appears and answers, it may be presumed that a bona fide defense is intended, and unless there is good reason to believe that the appearance and answer are a mere pretext and cover, intended to assist in obtaining a collusive divorce, the prosecuting attorney has no further duty to perform. It is not error for the court to strike his answer from the file. In the interest of the state he is not hindered in resisting a collusive divorce; State v. Brinneman, 120-358. 1042. Interlocutory orders, how enforced. This section gives, to the court, discretionary power to make an order directing the husband to pay in to court, a sum of money for the wife's use, and with which to retain attorneys to prosecute her cause; from such order, however, there exists the right of appeal. An order so made will not be reversed unless it is made to appear that the court has abused its discretion. In the case at bar the court, after having made an allowance to the wife, pursuant to this section, granted a rehearing. On the rehearing affidavits were introduced tending to show that the wife was a monomaniac, and that the charges made by her complaint were entirely creatures of her disordered imagination. The question as

to the mental condition of the wife is one pertaining to the final hearing, not to be considered in passing on the preliminary motion. If in any way proper to be considered on a motion for temporary alimony such a question could be considered only in determining the amount that should be allowed. So, the fact that the wife in such case has separate property and that the husband proffers his consent to join with her in mortgaging or transferring such property to enable her to raise money with which to prosecute her divorce case, is not a sufficient cause to justify the court in refusing an allowance; Gruhl v. Gruhl, 123-88.

1047. Decree for alimony, how payable. This section requires that a decree awarding alimony to a woman on divorcement shall be for a sum in gross and not payable in annual payments; but that the court may, in its discretion, give a reasonable time for payment by instalments, on surety given. Where alimony has thus been awarded, in a gross sum, and made payable in instalments maturing at fixed dates, such instalments do not bear interest, nor is interest recoverable if there be no default of payment when the respective sums become due- unless it be so provided by the terms of the decree. Nor is this rule changed by the fact that the judgment debtor has, pursuant to an order of court, given bond conditioned for the payment of interest. In such a case the statute, as to interest ( 5199), which provides-in substance that interest on judgments for money shall be at the rate of six per cent. from the date of the return of the verdict or finding of the court, if there be no contract, does not govern, for here the decree orders the payment of specific sums of money on a day or days fixed by the decree, and such a decree is satisfied by the payment of the several amounts on the days fixed. If, however, the instalments, or any of them, should not be paid at maturity, such unpaid sum would, from the day on which it should be paid, bear interest under section 5199; Winemiller v. Winemiller, 114-541.

ARTICLE 38-EJECTMENT.

1054. Contents of complaint. It is not a misjoinder to join in the same complaint a paragraph seeking to recover the possession of real estate with a paragraph claiming damages for its detention (see §§ 1058, 1061); Langsdale v. Woollen, 120-17. 1064. New trial of right. A motion to vacate and set aside an order awarding a new trial as of right belongs to a class of motions which must be entered at the earliest practicable moment to be made available. Such a motion comes too late after the parties have reformed the issues and prepared for trial at a term six months after new trial granted; nor is it error to overrule the motion, it appearing that the party to the motion was present in court, by his attorneys, when the order granting the new trial was made, advanced no objection, and entered into agreement as to recasting the pleadings, the motion being placed on the ground that it was made without the knowledge or consent of plaintiff; Harvey v. Fink, 111-250.

An order granting the defendant, in a proceeding to quiet title, a new trial as of right, under this section may be made without notice of the application therefor to the opposite party; so such order may lawfully be made "in the absence and without the knowledge or consent of plaintiff;" Stanley v. Holliday, 113-528.

A special appearance on a motion to vacate an order granting a new trial as of right is not sufficient. Such a motion should not be entertained until the party making it has entered his full appearance to the action; Stanley v. Holliday, 113-531.

Where a plaintiff does not object to the order of court granting a new trial, as of right, on the ground that the defendant has not filed "an undertaking, with surety, to be approved by the court or clerk, that he will pay all costs or damages which shall be recovered against him in the action," and the record of the cause before the supreme court fails to show whether defendant did or did not give such undertaking before he applied for and obtained a new trial, that court is authorized to assume, as against the plaintiff, either that such an undertaking was, in fact, given, or that plaintiff waived as he lawfully might― the giving of such an undertaking; Stanley v. Holliday, 113-531.

This section changes the rule which obtained under the Code of 1852, under which it was held that the new trial must be obtained or refused within one year, and that it was not sufficient to file the motion within the year and pay costs (Crews v. Ross, 44-481; Whitlock v. Vancleave, 39-511; Hays v. May, 35-427; Bissell v. Wert, 35-54). All that the statute requires is that the application and bond shall be filed within one year; it does not require that the court shall take final action within that time. The

clause introducing the enactment of the section, "the court rendering the judgment on application made within one year thereafter by the party against whom judgment is rendered," is the only clause which contains any limitation as to time, and as a limitation it manifestly applies to the acts of the parties and not to the acts of the court; Rodman v. Reynolds, 114-149.

Where defendant in ejectment has complied strictly and literally with the provisions of this section, and applies for a new trial, the court has no discretion -- the statute is mandatory, and under it the imperative duty of the court is to vacate its prior judg ment and award a trial de novo. If, then, at a subsequent term it is assumed by the parties that a new trial was, in fact, granted, and they appear and the cause is again tried, and there is a finding of judgment for defendant, such judgment will bar a subsequent action, based on the first judgment, in favor of plaintiff, to recover possession of the real estate in controversy in the action of ejectment, non obstante the fact that there is no entry on the order book of the court, showing the vacation of the original judgment and the awarding of a new trial; Stafford v. Cronkhite, 114-224.

In an action by a grantor to set aside a deed and revest title, on the ground that the conveyance was obtained by fraud and undue means, a party is entitled to a new trial as a matter of right: M'Gettrick v. Glenn, 116-28.

Ordinarily, the title to real estate is not in issue in a proceeding for partition; Davis v. Lennen, 125-186, L'Hommedieu v. Cin. etc. Ry. Co., 120-435. Title, however, may be put in issue in such a proceeding; Davis v. Lennen, 125-187; Isbell v. Stewart, 125-112; L'Hommedieu v. Cin. etc. Ry. Co., 120-435; Watson v. Cooper, 119-60. Where, then, title is directly and actually a principal issue in such a proceeding a new trial, as of right, must be awarded; Powers v. Nesbit, 127-498. An action to quiet title to land is one in which, under this section, a new trial may be demanded, as of right, without cause. The bond in this case was not as broad in its terms as the statute requires, in that it omitted the words "and damages." Such bond, though informal, is not invalid, and under section 1221 the obligors in the bond are bound as fully for all damages that might be recovered in an action on the bond as if the omitted words were inserted. It being a bond taken by the judge, an officer, in the discharge of the duties of his office, the obligors are bound by it "to the full extent contemplated by the law requiring" the taking of the bond. Therefore, the omission of these statutory words from the bond does not authorize the setting aside of an order granting the new trial, on a motion made a year after the award of new trial and in the absence of any prior objection as to the sufficiency of the bond as executed and approved. In such case the objection to the bond, being technical, and not having been made at the proper time, is deemed waived; Stanley v. Dailey, 112-490.

Where the title to land or a claim to an interest in or lien on such land is asserted, and the plaintiff seeks to remove it and thus clear his title from the claim which beclouds it, the losing party is entitled to a new trial, as matter of right, under this section, regardless of the form the issues may assume. So, in an action to quiet title, the defendant having filed a cross complaint, asserting a lien on the real estate in controversy, the court upheld the lien and ordered the sale of the land to satisfy it. The plaintiff filed his motion for new trial, as matter of right, under this section, and the court sustained that motion as to the issue joined on the original complaint, but denied it as to the judgment on the issue joined on the cross complaint. This being the state of case defendant pleaded his recovery on his cross complaint in bar of the further prosecution of the suit. The court overruled a demurrer to this plea. It was error not to grant a new trial as matter of right as to the whole case, and the demurrer should have been sustained; Bisel v. Tucker, 121-251.

Where a cause proceeds to judgment, which embraces a substantive cause of action, in which a new trial as a matter of right is not allowable, the policy of the law is to regard that cause of action as controlling in which a second trial as of right is not permitted. Even though it embraces other causes in which a new trial as of right is allowable, a new trial as of right will not be granted; Wilson v. Brookshire, 126506.

All that a survey, under the provisions of section 5955, does is to establish the line. It does not determine the title to the real estate; therefore a party to it is not entitled to a new trial as of right, under this section; Russell v. Senior, 118-521.

In a foreclosure proceeding judgment was rendered for defendant on a cross complaint praying for the cancellation of the mortgage and that his title be quieted in re