State v. Such

The opinion of the court was delivered by Reed, J.

The only ground upon which the first of these special pleas has any claim to consideration is, that the bond in suit is a statutory bond containing a condition more onerous than the one required by the statute.

The statute (Rev., p. 72, § 12) requires a bond to indemnify the townships against costs and expenses incurred for the support of the child.

The point made is, that the costs of education, against ' which the condition of the present bond contains an indemnity, is not included in the expenses for supporting the child.

I cannot concur in this view of the relation of the two . words. The word “ support,” like most words, has a variety of meanings. One of the illustrative examples of its use, given by Webster, is to support a student at college.

The use of the word “ support,” in the present Bastardy act, was meant to include the performance of all those duties which are due from a father to a child, and which the public may be called upon to execute in case of the father’s default.

It includes those services on behalf of the infant, against the expenses for which, in the entire history of the bastardy statutes, the father has been compelled to indemnify the parish or the township. Education is one of the duties owing to the child. In all the indemnity bonds under the English statute, as well as under ours, the condition is in the? form used in the present bond. It appears in 1 Burn’s Justice, p. 223, and in the form books in use in this state, from Griffith’s Justice down. It would háve been more orderly to -have couched the condition in the language'of the statute, but it is not void although in other words, unless the duty imposed is aside from the statutory duty. The duty to support includes a degree of instruction suitable to the" age and condition of the child. This view is strengthened by reference to section 28 of the act (Rev., p. 75), where the purposes for *355 •which money, arising from the sale of the property of absconding fathers, may be used, are specified.

Such was the view of the Supreme Court of Pennsylvania, •as expressed in the case of Helling’s Exrs. v. Directors of Poor, 15 Penna. St. 409. The bond required by their act was to perform the order of the court for the maintenance of the ■child. The bond given contained a condition to save harmless from expenses which might happen by reason of the •birth, maintenance or education. The last subject was held to be within the terms of the statute. But aside from this view of the meaning of the word “support,” I think the plea, is defective. For if we should concede that the condition is -void, so far as it indemnifies against any expenses incurred in the education of the child, yet that circumstance would fur■nish no answer to that part of the condition relating to the maintenance of the infant.

The former is clearly a separable part of the condition, and ■no principle is established on firmer ground than this, that the bond, although containing extra-statutory conditions, is, nevertheless, good as to those separable conditions which are within the statute. Pigott’s Case, 11 Rep. 27; Newman v. Newman, 4 Mau. & Sel. 70; Erlinger v. People, 36 Ill. 458 .

I do not perceive that the statement that the bond was given for ease and favor of Carpenter has any significance. 'The bond was not made to the- sheriff, nor to any one for his benefit, nor as an indemnity for an abuse of his official duty in favor of the prisoner.

The second special plea is framed in substantially the same language as the preceding. It contains an additional statement that the Court of Quarter Sessions did not order or direct in what amount the bond should he given, and it omits the statement that the bond was given for ease and favor of Carpenter.

The force of the statement that the court did not fix the amount of the penalty of the bond is discovered on referring do the Bastardy act. The statute requires that the person ■charged, if the. decision is against him, pay all the costs and *356 expenses which the court shall adjudge to be paid by him-forthwith, and that he shall enter into a bond to the 'State of New Jersey in such amount as the court shall order, with, approved surety dr sureties. In default, he is committed: until he pays the expenses and executes the bond aforesaid.

The gist of this plea is, that the sheriff compelled Carpenter to give a bond, the amount of the penalty in which was not fixed by the court.

Now, the most favorable view which can be taken of the-situation of defendant at the time he executed this bond iSj. that Carpenter was illegally imprisoned, and so, by the duress of such imprisonment, the defendant was compelled to execute this bond. But this is no answer. Wallace v. Bordentown, 21 Vroom 13 .

There was, however, no duress. If Carpenter chose to-execute the bond without asking the court to fix the amount, of the penalty, its execution was a voluntary act. In the-language of Mr. Justice Parker, in Davis v. State, 18 Vroom 341 , “ the prosecution was not required to ask the court to fix the amount of the penalty of the new bond, or to apply to-have the bond approved by the court. It was the duty of the defendants to have that done.”

The counsel for the defendant insisted that the facts pleaded! did not show duress, but did show a species of extortion contrary to public policy, distinguishable from duress, and which’ avoided the bond, both in respect of the surety as well- as the-principal.

There is a class of cases cited by Mr. Brandt in his work on Suretyship, under section 443, which holds that a bond extorted from an appointed or elected officer, with a. condition’ in excess of the statutory requirements, as a condition precedent to his being permitted to enter upon the duties of the-office, is void as to all the obligors.

Nottingham v. Giles, 1 Penn. 120 , is a specimen of this-class of cases.

Then there is a class of cases which includes bonds givem to an officer, or to some one for his benefit, as an indemnity *357 against the consequences of his breach of some official duty, or of his execution of some illegal act.

Of this class are Purple v. Purple, 5 Pick. 226 ; Churchhill v. Perkins, 5 Mass. 54 1; Winter v. Kinney, 1 N. Y. 365 .

The present bond is not brought within either of these classes by anything set forth in these pleas. There is no duress or extortion shown by coercing a bond with an excessive penalty. Nor was its execution in any way subversive of any rule of public policy.

The bond was given to the state to indemnify a township in respect of a matter within the letter and spirit of the Bastardy acts.

The third plea is framed upon the assumption that the order of filiation was spent upon the death of Carpenter. The view of the pleader is, that while that portion of the condition which is for indemnity survives, the other part of the condition for the performance of the order of filiation is performed if the weekly sum fixed by such order was paid up to the time of Carpenter’s death.

The form of the plea is based obviously upon a remark in 1 Burn’s Justice, p. 188, to the effect, that while a mere order by the justices is more easily enforceable than a bond, on the other hand a bond will bind a man’s executors, but the order of the justices being obligatory only upon the man himself, when he dies the order dieth with him.

This only means that the order, as such, becomes unenforceable upon the death of the father, because there is no one to punish for its disobedience.

A bond, however, by the father, with or without sureties, with condition to perform the order, stands upon quite different ground.

If the order is to do some act, or series of acts, which may reach beyond the life of the obligor, his death does not terminate the obligation.

The death of Carpenter did not relieve, the defendant from an obligation to see that the money was paid according to the terms of the order.

*358 . I am of opinion that each of the three special pleas should be struck out.