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Dickinson vs. McCamy.

We repudiate, then, those ancient adjudications, which not only wrest a man's words and actions but even his silence, into promises to pay. The English Judges deeply regret the latitude which their own decisions have assumed. Instead of treading in their steps, we propose to pause and adopt a course which is not only more congenial with our state of society, but more in accordance with both the letter and spirit of the Statute. And we are glad to find ourselves sustained in this instance, by the highest authority in this country, the Supreme Court of the United States.

[3.] In the opinion of this Court, therefore, the judgment in the Justice's Court was not warranted by the evidence, but the plea of the Statute of Limitations ought to have been sustained; and the Circuit Judge erred in not granting a certiorari on that ground. The judgment of the Circuit Judge must consequently be reversed, and the certiorari sanctioned.

Judgment reversed,

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No. 57.-JOHN WALKER, plaintiff in error, vs. the State of GEORGIA, defendant.

[1.] An indictment for bastardy, under the 26th section of the Penal Code of this State, is sufficient, when it is alleged the defendant is the father of the bastard child, and refused to give security for the maintenance and education of such child, when required to do so in terms of the law, by the Justice of the Peace, before whom he was brought by virtue of a bastardy warrant. [2.] When a bastardy warrant, issued by a Justice of the Peace, under the Statute of 1793, to arrest the defendant, recites that he has been charged, upon the examination of a single woman, on oath, with being the father of a bastard child, such warrant is admissible in evidence, on the trial of an indictment for bastardy, in the Supérior Court, to prove the arrest of the defendant, and to show he was regularly brought before the Justice, although it is not specified in the warrant, that he is to be brought before the Justice, to give security for the maintenance and education of the child. When the defendant is brought before the Justice, by virtue of a bastardy warrant, the Statute enjoins it as a duty on the Justice, to require him to give security for the maintenance and education of the child, in terms of the law, and if he refuses, or fails, to give such security, then to recognise him to appear at the next Superior Court, to answer the charge.

Indictment for bastardy, in Wilkes Superior Court, tried before Judge SAYRE, March Term, 1848.

Walker vs. The State of Georgia.

The plaintiff in error was put upon his trial in the Superior Court of Wilkes county, on an indictment for bastardy.

The indictment in its second count, (the first being stricken out on demurrer,) charged, "That the said John Walker was, on the 12th day of September, 1846, arrested by Edward R. Anderson, sheriff of said county of Wilkes, under and by virtue of a warrant, from under the hand and seal of Isaac A. McLendon, a Justice of the Peace for the said county of Wilkes, charged upon the path of one Mary Ann Wheatley, of said county of Wilkes, charging the said John Walker with being the father of a bastard child, which was then and there likely to be born of her, the said Mary Ann Wheatley, and likely to be chargeable to said county of Wilkes; and the said John Walker, arrested as aforesaid, was brought before Isaac A. McLendon and Benjamin Smith, Justices of the Peace for said county of Wilkes, and then and there, to-wit: on the 14th day of September, in the year aforesaid, in said county of Wilkes, the said Justices, after due deliberation, ordered and adjudged, that the said John Walker should give bond and security for the education, support and maintenance of said child, so to be born as aforesaid, he, the said John Walker, being then and there, by the Justices aforesaid, re. quired to give said bond and security, for the maintenance and education of said bastard child, in terms of the law, he, the said John Walker, being then and there, the father of said bastard child, and he, the said John Walker, then and there, towit: on the day and year last aforesaid, in said county of Wilkes, then and there refused to give said bond and security, and still refuses so to do, contrary, &c."

Counsel for defendant below, demurred to this count of the indictment, on the ground that there was no allegation that the Justices of the Peace had required of defendant, bond and security, for the maintenance and education of such bastard child, until fourteen years of age, and also for the expense of lying-in with such child, boarding, nursing, and maintenance, and no allegation that such requisition was refused by the defendant. The Court overruled the demurrer, to which defendant excepted.

On the trial, the warrant being offered in evidence, counsel for defendant objected to it, on the ground that it directs the defendant to be brought before the Justice, " to answer the said charge," when it should have been specifically, "to give security for the ed

Walker vs. The State of Georgia.

ucation, maintenance, &c." which objection was overruled, and the warrant admitted, to which decision defendant excepted.

The counsel for defendant requested the Court to charge the jury, "that it being necessary to allege a bond was refused by defendant, to maintain and educate the child, until it was fourteen years of age, or to do the same things, in terms of the law,' the jury must be satisfied that such a bond was refused by defendant, and not a bond for education and maintenance, for any indefinite period, or else the prisoner must be acquitted."

The Court refused so to charge, but charged, "If the defendant was informed of the nature and character of the bond that the Justice of the Peace required, and it was in conformity with the law, and he refused to give such bond, he is guilty of such refusal in the law."

To which charge and refusal to charge, defendant excepted, upon whichseveral exceptions, error has been here assigned.

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G. ANDREWS, represented by A. J. MILLER, for plaintiff in

error.

SOL. GEN. WEEMS, represented by T. R. R. Coвв, for defendant.

By the Court.-WARNER, J. delivering the opinion.

[1.] The objection to the indictment by the defendant, is, that that there was no allegation that the Justices of the Peace required of him security for the maintenance and education of the bastard child, until fourteen years of age, and also, for the expense of lying in with such child, boarding, nursing, and maintenance, and no allegation that such requisition was refused by the defendant. By the 26th section of the 10th division of the Penal Code, it is declared, "If any putative father of a bastard child, or children, shall refuse, or fail, to give security for the maintenance and education of such child, or children, when required to do so in terms of the law, suh putative father shall be indicted for a misdemeanor, and on conviction of the fact of being the father of such bastard child or children, and of his refusal, or failure, to give such security, he shall be punished by a fine," &c. Prince's Dig. 649. The indictment accuses the de

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