given, nor the specific terms of the bond itself, are set out in the report of the case. Neither does it appear what the alleged breach of duty

was.

And in Connelly v. American Bonding & T. Co. (1902) 113 Ky. 903, 69 S. W. 959, under statutes providing that police officers shall give a bond to the commonwealth, covenanting to faithfully discharge the duties of the office, and that actions shall be brought "in the name of the commonwealth," for the "benefit" of any "person injured by a breach of the covenant," and an ordinance of Newport, enacted pursuant to a statute requiring policemen to give such bond as may be required by ordinance, which provided that each policeman shall give a bond to the "city of Newport" for the faithful discharge of his duties, it was held, in answer to the contention that the bond did not indemnify any person other than the city of Newport, because the undertaking was to the city alone, that a bond so given by a policeman of Newport could be sued upon by an individual injured by the policeman's breach of duty in arresting such person. And upon similar facts, except that the bond was given by a town marshal, pursuant to an ordinance of Augusta, and ran to the commonwealth of Kentucky for the use of the city of Augusta, it was held in Com. use of Rosenthal v. Teel (1908) 33 Ky. L. Rep. 741, 111 S. W. 340, that an action for damages for wrongful arrest could be brought in the individual name of the party aggrieved, and that upon the city refusing to become a party plaintiff, it was not necessary even to make it a party

defendant. The court said that the city was not a necessary party to such an action, and that it could not protect the officer by refusing to join in the bringing of the action.

And in Lester use of Richardson v. Trail (1920) 85 W. Va. 386, 101 S. E. 732, where the statute expressly provided that the bond of a town sergeant shall be made payable to the municipality, in holding that an individual unlawfully assaulted by such an officer could sue thereon in the name of the municipality, the court said: "It is urged that there is no authority in law for the maintenance of this suit in the name of the municipality for the benefit of said Richardson. This point is without merit. Official bonds are conditioned upon the faithful performance of their duties by public officers, and are given and intended for the benefit of the public; and any person who is injured by the failure of such officer to comply with the conditions of his bond may sue thereon in the name of the obligee named therein. By executing such a bond the obligor makes the obligee a trustee for any and all persons who are injuriously affected by the breach of its conditions. Section 5, chap. 10, of the Code, provides that the bond of an officer of a municipal corporation may be made payable either to the state or to the municipality; and $35 of chapter 47 expressly provides that the sergeant's official bond shall be made payable to the municipality; hence the injured party may sue in the name of the municipality." see State ex rel. McDermott v. United States Fidelity & G. Co. (1920) 85 W. Va. 720, 102 S. E. 683. G. J. C.

And

note.

Messrs. Jacob H. Berman and Benjamon L. Berman, for defendant:

The acts and representations of defendant in inducing the marriage did not constitute such fraud as may be made the basis of a decree of annulment.

Foss v. Foss, 12 Allen, 26; Crehore v. Crehore, 97 Mass. 330, 93 Am. Dec. 98; Smith v. Smith, 171 Mass. 404, 41 L.R.A. 800, 68 Am. St. Rep. 440, 50 N. E. 933; Donnelly v. Strong, 175 Mass. 157, 55 N. E. 892; Reynolds v.. Reynolds, 3 Allen, 605; Trask v. Trask, 114 Me. 60, 95 Atl. 352; Day v. Day, 236 Mass. 362, 128 N. E. 411; Chipman v. Johnston, 237 Mass. 502, 14 A.L.R. 119, 130 N. E. 65; 9 R. C. L. 297.

Deasy, J., delivered the opinion of the court:

The petitioner prays for the annulment of his marriage with the defendant on the ground as set forth in the petition and found to be true by the superior court justice who heard the case, "that on June 17, 1920, respondent was pregnant by another man than the petitioner, and that when she married him she knew her pregnancy was not of his begetting."

The court also found in effect that the parties had, before the marriage, had sexual relations, and that the petitioner believed the assurances of the respondent that he was the father of her unborn child. In denying the petition the justice ruled as follows: "I rule, however, as a matter of law, that inasmuch as the petitioner had had carnal

knowledge of respondent's body, as hereinbefore found, the acts and representations of the respondent in inducing the marriage did not constitute such fraud as may be made the basis of a decree of annulment." To such ruling and denial the petitioner excepted.

It is generally true that a woman who marries when, unknown to her husband, she is pregnant with a child by another man, commits a fraud which vitiates the marriage and is ground for its annulment on petition by the husband. Reynolds v. Reynolds, 3 Allen, 605; Donovan v. Donovan, 9 Allen, 140; Fontana v. Fontana, 77 Misc. 28, 135 N. Y. Supp. 220; 26 Cyc. 903.

It was, however, contended by the defendant and ruled by the justice presiding that, where the parties to the marriage have, before its consummation, had sexual intercourse, the marriage will not be annulled, even though it was induced by the false representations of the woman, believed by the man, that he is responsible for her condition.

The ruling in this case is supported by eminent authorities. Foss v. Foss, 12 Allen, 26; Safford v. Safford, 224 Mass. 392, L.R.A.1916F, 526, 113 N. E. 181; Franke v. Franke, 3 3 Cal. Unrep. 656, 18 L.R.A. 375, 31 Pac. 571; States v. States, 37 N. J. Eq. 195; Bartholomew v. Bartholomew, 14 Pa. Co. Ct. 230.

The contrary is strenuously maintained by other courts. Lyman v. Lyman, 90 Conn. 399, L.R.A.1916E, 643, 97 Atl. 312; Wallace v. Wallace, 137 Iowa, 37, 14 L.R.A. (N.S.) 544, 126 Am. St. Rep. 253, 114 N. W.

527, 15 Ann. Cas. 761; Ritayik v. Ritayik, 202 Mo. App. 74, 213 S. W. 883; Di Lorenzo v. Di Lorenzo, 174 N. Y. 467, 63 L.R.A. 92, 95 Am. St. Rep. 609, 67 N. E. 63; Gard v. Gard, 204 Mich. 255, 11 A.L.R. 923, 169 N. W. 908; Winner v. Winner, 171 Wis. 413, 11 A.L.R. 919, 177 N. W. 680.

The reason for the former rule is stated by the Massachusetts court in Foss v. Foss, supra, thus: "We have, therefore, a case in which a man intermarried with a woman whom he knew to be unchaste, whom he had himself debauched, and of whose condition of pregnancy he was well aware. He took no steps to ascertain the truth of her statements concerning the paternity of the child, but, relying solely on her assurances on that subject, he entered into the contract of marriage. It seems to us that on these facts he was guilty of a blind credulity, from the consequences of which the law will not relieve him. His knowledge of the respondent's unchastity and of her actual pregnancy was sufficient to put a reasonable man on his inquiry. It does not appear that he could not have readily ascertained her previous intimacy with another man. Certainly by a resort to a medical examination, or by a delay of the execution of the marriage contract for a brief period, he could have easily put the truth of her statements to a decisive test. Whatever may have been the motives which led him to forbear all inquiry, it is a sufficient answer to his claim to be relieved from his. contract that the deceit, if any, which was practised upon him, was submitted to voluntarily and wilfully, and that he cannot be allowed to escape from his obligations by proof of facts the knowledge of which he might have obtained by the exercise of a proper and reasonable prudence and discretion."

For the contrary view the supreme court of Wisconsin, in Winner v. Winner, supra, states the ground as follows: "To say that, under such circumstances, the man

has no right to rely upon the woman's statements that he is the father of the child she is bearing, and that he must make inquiry elsewhere as to her chastity, is to negative all virtue, all truthfulness, and all decency in every woman that may have been imprudent enough to anticipate with her lover the rights of the marriage relation. Such a lapse from good morals should not be held destructive of every ethical instinct of the woman and render her unworthy of belief as to assertions fraught with such serious import, and whose truth she alone knows. No right-minded man guilty of having wronged a woman or sharing a wrong with her would so act. He would do as plaintiff did in this case, marry her. That is the only honorable reparation possible, -the only method of legitimatizing the offspring which he believes to be his, and of saving the honor of the woman he has promised to marry. The act of marriage in such a case is not the result of negligent credulity, but of honorable motives to repair as far as possible wrongs inflicted or shared by him. Such conduct should be encouraged to the end that lesser wrongs be remedied instead of being followed by greater ones."