the judgment, or recite it substantially.-Gresham's case, 48 Ala. 625. Should be so framed that each party may show cause why judgment should not be made absolute against him.-Hunt's case, 63 Ala. 196. Good plea that recognizance extorted from principal by duress of illegal and forcible imprisonment. Brantley's case, 27 Ala. 44. When estopped from pleading that it was extorted. Whitted v. Governor, 6 Port. 335. Death of accused before forfeiture good defense.-Pynes's case, 45 Ala. 52. Also, if undertaking be for appearance "at this term," if case reversed and forfeiture at a subsequent term set up by plea of nul tiel record, craving oyer, etc.-Williams's case, 55 Ala. 72. Bail-bond prima facie sufficient; proof of its execution, if denied, must be set up in defense by proper proof; too late on appeal.-Gresham's case. 48 Ala. 625. When sureties cannot raise objection to manner of arrest, or sufficiency of indictment.-Peck's case, 63 Ala. 201. Legal sufficiency of indictment cannot be tested by demurrer to scire facias.-Ib.; Eldred's case, 31 Ala. 393; Williams's case, 20 Ala. 63; Weaver's case, 18 Ala. 293. Not good plea, that defendant, at time of judgment nisi, was confined in penitentiary of another state.-Cain's case, 55 Ala. 170. When plea demurrable.-Merrill's case, 46 Ala. 82.

4377 (4434) (4865) (4256) (705). Notice or scire facias executed; return.-The notice may be executed by the sheriff of any county in the state, and must be returned by the officer executing it, with his proper return thereon indorsed, by the first day of the next term of the court from which it issued.

4378 (4435) (4866) (4257) (706). Alias notice; two returns "not found" equivalent to personal service.-If the notice is not served on any of the parties to the undertaking, such other notices as are necessary may from time to time be issued; but two returns of "not found" by the proper officer are equivalent to personal service. Keipp's case, 49 Ala. 337; Hunt's case, 63 Ala. 196.

4379 (4436) (4867) (4258) (707). Conditional judgment set aside, reduced, or made absolute.-If the defendants appear and show sufficient cause for the default, to be determined by the court, the conditional judgment must be set aside; but if the excuse is not sufficient, or if they fail to appear, the judgment must be made absolute for the entire sum expressed in the undertaking, or any portion thereof, according to the circumstances.

Judgment final against all should show that all failed to appear, or, appearing, failed to show sufficient excuse.-Hunt's case, 63 Ala. 196. Cannot render judgment final against sureties, and set aside judgment nisi against principal, in same entry; works discontinuance as to surety-Hatch's case, 40 Ala. 718. Court may impose full amount, or any part of penalty.-Cain's case, 55 Ala. 170. Confinement of defendant under conviction in another state, though not an excuse, may mitigate the penalty.-Ib. To support judgment final, record must show return of scire facias "executed," or two returns "not found."-Hunt's case, 63 Ala. 196. When supreme court will amend, and discontinue as to one surety not served or returned "not found."-Ib. When sureties cannot complain on appeal of refusal of court to require clerk to enter certain matters on record.-Hendon's case, 49 Ala. 380. When judgment sustained though alias scire facias not set out in record.-Cantaline's case, 33 Ala. 439. Undertaking no part of record, unless made so by plea or bill of exceptions.-Hendon's case, 49 Ala. 380; Richardson's case, 31 Ala. 347; Shreeve's case, 11 Ala. 676; Robinson's case, 5 Ala. 706. Final judgment on an undertaking of bail cannot be compromised with solicitor.-Dunkin v. Hodge, 46 Ala. 523. It is no defense that accused escaped during trial.-Cook's case, 91 Ala. 53. The issue is triable by the court, and if in a case an issue should arise properly triable by a jury, a failure to demand jury is a waiver.-Posey's case, 79 Ala. 45. Sureties discharged by order for new recognizance.—Ib.

4380 (4437) (4868) (4259) (708). Excuses for default heard at any time, and allowed without cost.-Excuses for defaults must be heard by the court, on application, at any time when not engaged in

other business; and when a conditional judgment is set aside, no cost must be imposed on the defendants..

See note to preceding section.

CHAPTER 130.

BASTARDY. 4381-4405.

4381 (4842) (4071) (4396) (3799). Reputed father of bastard arrested on complaint of mother; warrant.-When any single woman, pregnant with, or delivered of a bastard child, makes complaint on oath to any justice of the county where she is so pregnant or delivered, accusing any one of being the father of such child, such justice must issue a warrant against such person, and cause him to be brought before him.

In absence of statutory provisions, father under no legal obligation to support illegitimate child.-Simmons v. Bull, 21 Ala. 501. Proceedings under this chapter partake of the nature of both civil and criminal proceedings; may be styled quasi criminal.-Hunter's case, 67 Ala. 81; Smith's case, 73 Ala. 11; Dorgan's case, 72 Ala. 173. Not a misdemeanor.-Ib. 173; Hunter's case, 67 Ala. 81: Satterwhite's case, 28 Ala. 70. Complaint must aver or warrant must show that woman was single.-Smith's case, 73 Ala. 11; Dorgan's case, 72 Ala. 173; Williams's case, 29 Ala. 9. Else justice has no jurisdiction; must also appear that woman was pregnant or delivered in the county.-Ib. 9. May hear evidence outside of complaint.-Ib. 9. Technical rules not required in proceedings like this.-Ib. 9; Austin v. Pickett, 9 Ala. 102; Dorgan's case, 72 Ala. 173; Crosby v. Hawthorn, 25 Ala. 221. Married woman cannot prefer this complaint, although her husband has left her.-Kerr's case, 17 Alà. 328. Statute in this case penal, and must be strictly construed.-Ib. Complaint before birth of child made in county of mother's residence; if after birth made in county where child born.-Wilson's case, 18 Ala. 757; Woodson's case, 99 Ala. 201. Infant defendant need not appear by next friend.-Miller's case, 110 Ala. 69. Maintenance and education of illegitimate offspring born, or to be born, are its objects and purposes.-Shows v. Solomon, 91 Ala. 390. Not discontinued by failure of clerk to place same on docket.-Miller's case, supra. Sufficiency of complaint.-Ib. Bastardy proceedings not criminal proceedings, such as to prevent counsel from commenting on defendant's failure to testify, nor to require proof to a moral certainty; only reasonable certainty is required.-Ib. Motion to quash affidavit or warrant comes too late if made for first time in circuit court.-Walker's case, 108 Ala. 56. fects in complaint may be cured by complaint filed by solicitor in circuit court.-Ib. When judgment may be rendered nunc pro tune.-Kuehlthau's case, 92 Ala. 91. A warrant or complaint alleging only "that the offense of bastardy has been committed, and that A. B. is guilty thereof” is void absolutely. Collins's case, 78 Ala. 433.

De

4382 (4843) (4075) (4400) (3803). Justice to summon witnesses. The justice of the peace must, on the application of the complainant, or the accused, issue subpoenas for witnesses.

4383 (4844) (4072) (4397) (3800). Examination; if probable cause, held under bond to appear at court and answer.-Such justice must then, in the presence of the accused, examine the complainant and her witnesses, and may examine also the accused and his witnesses, respecting the charge; and, if it appears that there is probable cause to believe that the accused is guilty of the charge, must require him to enter into bond, with sufficient surety, in a sum

not exceeding one thousand dollars, to be approved by such justice, payable to the State of Alabama, and conditioned that the accused will appear at the next term of the circuit or city court of such county.*

Justice no power to render final judgment.-Nicholson's case, 72 Ala. 176. His duties purely preliminary to ascertain probable cause.-Ib.; Smith's case, 73 Ala. 11. An examination and discharge do not preclude another examination.-Nicholson's case, supra. Nor can action of justice be pleaded in bar to second proceedings.-Ib. Mother of child may accept compromise, and dismiss prosecution.-Martin's case, 62 Ala. 119; Robinson v. Crenshaw, 2 Stew. & Port. 276; Ashburne v. Gibson, 9 Port. 549; Wilson's case, 18 Ala. 757; Merritt v. Flemming, 42 Ala. 234. Bond failing to require appearance at "next term" of court is void, and proceedings under it coram non judice. Seale v. McClanahan, 21 Ala. 345. Sufficiency of bond cannot be questioned, if defendant appears; when not invalid.-Hanna's case, 60 Ala. 102. Formerly held that appearance bond should be made payable to governor and his successors, the statute being silent on this point.-Trawick v. Davis, 4 Ala. 328; Chaudron v. Fitzpatrick, 19 Ala. 649; Lake's case, 2 Stew. 395.

4384 (4845) (4073) (4398) (3801). Justice to return bond to circuit or city court.-Such justice must return such bond and complaint to the clerk of the circuit or city court, by the first day of the term at which the accused is bound to appear.*

Proceedings before justice become part of record.-Wilson's case, 18 Ala. 757. What necessary under this section to enable circuit court to take cognizance of the cause.-Hanna's case, 60 Ala. 102. Warrant may also be returned, and from its recitals jurisdiction may be sustained.-Williams's case, 29 Ala. 9. Formerly proceedings had in county and probate courts. See Moore v. Maguire, 26 Ala. 461; Castleberry's case, 23 Ala. 85.

4385 (4846) (4074) (4399) (3802). Reputed father imprisoned on default of bond.-On the failure to give the bond as required, the justice must commit the accused to jail until he gives the same, or is otherwise discharged by law.

4386 (4847) (4075) (4400) (3803). Clerk to issue subpoenas. The clerk of the circuit court, after the return of the bond, must, on the application of the complainant or accused, issue subpoenas for witnesses.

4387 (4848) (4092) (4417) (3820). State and accused parties to record. The proceedings in bastardy are conducted in the name of the state as plaintiff, and the accused as defendant; but no proceeding shall be instituted under this chapter after the lapse of one year from the birth of the child, unless the defendant has, in meanwhile, acknowledged or supported the child.

Though the state, and not the woman, is a party, yet if state fails, she may be liable for costs; infancy of complainant immaterial.-Hanna's case, 60 Ala. 102. The female is merely the informer, not a party, and she recovers nothing.--Pruitt's case, 16 Ala. 707. The mother should not be made party to a writ of error, prosecuted by the father.-Trawick v. Davis, 4 Ala. 328. In a prosecution by infant, she need not appear by next friend.-Miller's case, 110 Ala. 69. Barred after one year from birth of child, if defendant has not supported child.-Woodson's case, 99 Ala. 201. When judgment may be rendered nunc pro tunc.-Kuehlthau's case, 92 Ala. 91.

4388 (4849) (4076) (4401) (3804). Forfeiture of bond; conditional judgment and writ of arrest.—If the accused does not appear, his bond is forfeited, and a conditional judgment may be rendered thereon, and the like proceedings had as in case of the *The words "or city" inserted by joint committee.

forfeiture of bonds for indictable offenses; and the clerk must issue a writ of arrest, as in criminal cases on indictment found.

Appearance bond binding on all obligors until final disposition of case. Trawick v. Davis, 4 Ala. 328. Defendant liable on bond for non-appearance, although not convicted.-Lake's case, 2 Stew. 395. Money collected on forfeited bond not part of fine and forfeiture fund.-Shows v. Solomon, 91 Ala. 390.

4389 (4850) (4077) (4402) (3805). Rearrest; defendant discharged on bond of one thousand dollars.-The sheriff, on arresting the defendant on such writ of arrest, may discharge him on his giving bail for his appearance at court, in the sum of not more than one thousand dollars, to answer a complaint of bastardy; and if such bond is forfeited, a conditional judgment may be rendered. thereon, a writ of arrest issue, and the same proceedings had as often. as may be necessary.

4390 (4851) (4078) (4403) (3806). On appearance, issue made up. The court, on the appearance of the accused, must, if he demand it, cause an issue to be made up, to ascertain whether he is the real father of the child or not.

Necessary to submit case to jury only when reputed father demands it. Trawick v. Davis, 4 Ala. 328; Lake's case, 2 Stew. 395. And the only issue tried by jury was, under former statute, as to the paternity of the child.-Ib. 328; Ib. 395. Allegation that complainant was a single woman, is part of issue made up and tried.-Dorgan's case, 72 Ala. 173. Number of challenges of jurors not prescribed.—Ib; but see present statute. Defect in affidavit and warrant raised by motion to quash, not by demurrer; but motion must be made before justice, else too late.-Smith's case, 73 Ala. 11. After appearance and trial, too late to object to recognizance taken by justice.-Wilson's case, 18 Ala. 757. After plea of guilty and execution of proper bond, etc., too late to object to defects in complaint or process before justice.-Pruitt's case, 16 Ala. 705. Objection to voidable, defective warrant must be made by motion to quash before regular appearance of defendant.-Trawick v. Davis, 4 Ala. 328. Not required that evidence should prove guilt beyond a reasonable doubt; sufficiency of proof, etc.-Hunter's case, 67 Ala. 82. See Satterwhite's case, 28 Ala. 65. No statute of limitations; reason therefor.-Satterwhite's case, 28 Ala. 65. Now changed by statute. Action of justice not pleadable as former acquittal or conviction.-Nicholson's case, 72 Ala. 176. Release or compromise permitted, and ground for plea in bar, but not for motion to dismiss; but release by infant mother, if repudiated by her, is no bar.-Wilson's case, 18 Ala. 757. But compromise made or offered no evidence of guilt, if no admission of fact is made. Martin's case, 62 Ala. 119. Relevancy of suspicious circumstances implying admission or consciousness of guilt.-Nicholson's case, 72 Ala. 176. Verdict affirming that defendant is real father of child sufficient.-Berryman's case, 9 Ala. 455. Amendable defects of warrant or affidavit cannot be raised for first time in circuit court; may be cured by complaint filed by solicitor.-Walker's case, 108 Ala. 56. Warrant and affidavit charging only that the offense of bastardy was committed and that A. B. was guilty is absolutely void.-Collins's case, 78 Ala. 433. The trial is quasi criminal, but the rules as to evidence, competency of witness, argument of counsel, etc., are governed by rules, of civil procedure.-Miller's case, 110 Ala. 69.

4391 (4852). Challenge of jurors.-On a trial of the issue before a jury, each party has the right to challenge six jurors peremptorily. 4392 (4853) (4079) (4404) (3807). Either party may be examined. On the trial of such issue, the accuser and accused are each entitled to their oath.

Either accused or complainant a competent witness; and their testimony weighed like that of other witnesses.-Satterwhite's case, 27 Ala. 65. Misleading charge as to sufficiency of proof, when two witnesses of equal credibility swear against each other.-Dorgan's case, 72 Ala. 175.

4393 (4854) (4080) (4405) (3808). On conviction, judgment for costs, and bond required to support and educate child.—On the

trial of such issue, if found against the defendant, judgment must be rendered against him for the costs, and he must also be required to enter into bond and surety, to be approved by the judge, in the sum of one thousand dollars, payable to the state, and conditioned to pay such sum, not exceeding fifty dollars a year, as the court may prescribe on the first Monday in January in each year, for ten years, to the judge of probate of the county, for the support and education of the child, which bond must be recorded.

Correct construction of statute is, that accused be compelled to support child, not until it is ten years of age, but ten years from date of judgment. Pruitt's case, 16 Ala. 705. Accused liable for costs if convicted.-Berryman's case, 9 Ala. 455. Form of judgment-entry; what must show.-Smith's case, 73 Ala. 12. Erroneous judgment; what a misprision.-Wilson's case, 18 Ala. 757. Amendment of judgment allowed to require payments on first Monday, instead of first day of January, etc.-Williams's case, 29 Ala. 9. Under former statutes, judgment should be rendered in favor of judge of county court. Brown's case, Minor, 208; Trawick v. Davis, 4 Ala. 328. But omission to state in whose favor it was rendered, would not reverse.-Yarborough's case, 15 Ala. 556; Seale v. McClanahan, 21 Ala. 345. Money collected on forfeited bond not part of fine and forfeiture fund.-Shows v. Solomon, 91 Ala. 390. The provision is intended for the protection of society and the illegitimate child.-Ib. Judgment nunc pro tunc.-Kuehlthau's case, 92 Ala. 91.

4394 (4855) (4081) (4406) (3809). Judgment on failure to give bond. On failure to give such bond, the court must render judgment against the defendant for such sum as, at legal interest, will produce the amount directed to be paid yearly; and he must also be sentenced to hard labor for the county for one year, unless in the meantime he executes the bond required, or pays the judgment and

costs.

See note to preceding section. Sufficiency of judgment.-Austin v. Pickett, 9 Ala. 102; Berryman's case, Ib. 455. Imprisonment not unconstitutional. Paulk's case, 52 Ala. 427. Judgment not sustained by evidence of a bond; would not authorize execution.-Isaacs's case, 5 Stew. & Port. 402.

4395 (4856) (4082) (4407) (3810). Execution on bond issues on failure to make payments.-If such bond is given, on failure to make any of the payments required, to the judge of probate, on the first Monday in January in each year, execution may issue for such amount against all the obligors to the bond, on the application of the judge of probate, which, when collected, must be paid to him.

Must be a bond or evidence of a bond, to authorize execution.-Isaacs's case, 5 Stew. & Port. 402. Direction in judgment that execution issue thereon for each default, held regular.-Trawick v. Davis, 4 Ala. 332.

4396 (4857) (4083) (4408) (3811). Bond; when given after the adjournment of court.-If such bond is not given before the adjournment of court, it may be given at any time before the term of imprisonment expires, and in such case, must be approved by the judge of probate and recorded and filed in the office of the clerk of the circuit court, and execution may issue thereon from time to time, as under the provisions of the preceding section, and the amount, when collected, paid to the judge of probate.

4397 (4858) (4084) (4409) (3812). Defendant discharged on filing bond, paying costs, etc.-In the case provided for in the preceding section, the defendant must be discharged from imprisonment on payment of the costs, and the judgment against him is discharged.