[2 R. S. 1852, p. 485. In force May 6, 1853.]

990. (978.) Verified complaint-Warrant.-1. When any woman who has been delivered of or is pregnant with a bastard child shall make a complaint thereof in writing, under oath, before any justice of the peace, charging any person with being the father of such child, such justice shall, by his warrant, cause such person to be arrested and brought before him.

No one but the mother can institute the suit. Harter v. The suit may be instituted as soon as pregnancy occurs. Ind. 168.

Johnson, 16 Ind. 271.
Canfield v. State, ex rel., 56

The suit should be brought in the county where the defendant resides if he resides in this state. Hawley v. State, ex rel., 69 Ind. 98.

The suit may be brought in any township of the county where the defendant resides. Morris v. State, ex rel., 115 Ind. 282.

As to the form and sufficiency of the complaint, see Dibble v. State, ex rel., 48 Ind. 470; Kinder v. State, ex rel., 68 Ind. 454; Kinder v. State, ex rel., 70 Ind. 284; De Priest v. State, ex rel., 68 Ind. 569.

The complaint need not be sworn to before the justice. Sample v. State, ex rel., 53 Ind. 28.

A married woman may prosecute the suit against a man not her husband. Cuppy v. State, ex rel., 24 Ind. 389; Dean v. State, 29 Ind. 483.

Marriage of the parties during pregnancy prevents the prosecution. Doyle v. State, ex rel., 61 Ind. 324; Brock v. State, ex rel., 85 Ind. 397; Moran v. State, ex rel., 73 Ind. 208.

If the papers are lost they may be substituted. Burt v. State, ex rel., 79 Ind. 359.

991. (979.) Trial.-2. Upon the arrest of such person, or the return of the warrant that he can not be found, such justice shall proceed to hear and determine such complaint.

The cause can not be tried on Sunday. Chapman v. State, ex rel., 5 Blkf. 111.

992. (980.) Style of suit-Evidence-Woman a witness.-3. The prosecution shall be in the name of the state of Indiana, on the relation of the prosecuting witness; but the rules of evidence shall be the same as in civil cases, and the mother of the child, if of sound mind, shall be a competent witness.

The prosecuting witness is not the plaintiff in the suit. Ex parte Haase, 50 Ind. 149. It is sufficient if the case is docketed and carried on in the name of the state on the relation of the mother. Kinder v. State, ex rel., 68 Ind. 454.

The relatrix has an interest in the suit which may be considered in weighing her testimony. McCullough v. State, ex rel., 14 Ind. 391; Rawles v. State, ex rel., 56 Ind. 433; Keating v. State, ex rel., 44 Ind. 449; Decker v. State, ex rel., 53 Ind. 552.

The relatrix may be impeached as other witnesses. Meyncke v. State, ex rel., 68 Ind. 401; Thompson v. State, ex rel., 15 Ind. 473.

The mother is a competent witness when the suit is against the estate of the father of the child. State, ex rel., v. Haw, 23 Ind. 539.

The evidence of a married woman is competent, in such proceeding, to prove nonaccess by the husband and the illegitimacy of a child born during marriage. Cuppy v. State, 24 Ind. 389; Dean v. State, 29 Ind. 483.

993. (981.) Bond to appear in circuit court-Commitment.-4. If the justice, on hearing, adjudge the defendant to be the father of such child, he shall, if such defendant is in custody, require him to give bond in a sum not less than two hundred nor more than ten hundred dollars, with sufficient sureties, payable to the state of Indiana, and conditioned that he will appear at the next term of the circuit court of such county to answer such complaint, not depart without leave, and abide the judgment and orders of such court; or, failing therein, that he will pay such sums of money and to such person as may be adjudged by such court; and shall transmit such bond, together with a transcript of his proceedings and the other papers in the cause, without delay, to the clerk of the circuit court of the proper county. And if such defendant shall fail to give such bond, such justice shall commit him to jail until discharged by law. Such bond, or any bond given by such defendant on any continuance or arrest may be put in suit by any person in whose favor the court may adjudge any sum of money in such prosecution.

A discharge of the defendant is no bar to a further prosecution. State v. Allen, 4 3lkf. 269; Davis v. State, 6 Blkf. 494; State v. Barbour, 17 Ind. 526.

If a justice enters a judgment discharging the defendant, the state may appeal therefrom. Risk v. State, ex rel., 19 Ind. 152; Glenn v. State, ex rel., 46 Ind. 368; Galvin v. State, ex rel., 56 Ind. 51; Morris v. State, ex rel., 115 Ind. 282; McCoy v. State, ex rel., 121 Ind. 160.

There must be a judgment of discharge before an appeal will lie. State, ex rel., v. Brown, 44 Ind. 329.

An appeal must be taken within thirty days after judgment. Reed v. State, ex rel., 66 Ind. 70.

The bond for the appearance of the defendant should be for the next term after the hearing. Parlan v. State, ex rel., 19 Ind. 455.

The sureties on the bond are only liable for the appearance of the defendant at the next term after the execution of the bond, and on a continuance a new bond should be taken. Burr v. Wilson, 50 Ind. 587.

If the defendant fails to comply with the order and judgment, an action accrues upon the bond without a demand or judgment of forfeiture. Clark v. State, ex rel., 125 Ind. 1. If the defendant appears in the circuit court without being under bond, the court will have jurisdiction. Holderman v. Thompson, 105 Ind. 112.

The sureties on the bond may arrest the defendant and surrender him to the proper officer. Turner v. Wilson, 49 Ind. 581.

The failure of the defendant to comply with the terms of a judgment entered upon a compromise by the parties, is not a breach of the bond. Fry v. State, ex rel., 81 Ind. 465. If the defendant is committed to jail in accordance with the terms of judgment the sureties on his bond are not liable for the judgment. State, ex rel., v. Fletcher, 1 App. 581.

994. (982.) Bond after commitment.-5. Any person committed to jail for failure to give such bond may be discharged from custody, by filing, at any time after his commitment, with the clerk such bond to the satisfaction of such clerk; and a certificate of the clerk to the sheriff shall be sufficient to authorize him to discharge said defendant from custody.

995. (983.) Trial as in civil cases.-6. The trial and continuance thereof of such prosecution, both before the justice and in the circuit court, shall, in all respects not herein otherwise provided for, be governed by the law regulating civil suits.

The defendant may appear by attorney in the circuit court, introduce evidence, crossexamine witnesses and have a jury trial without being present in person. Stone v. State, ex rel., 33 Ind. 538.

A defendant constructively summoned can not, after a default, appear and make a defense. Davidson v. State, ex rel., 62 Ind. 276.

Prosecutions for bastardy are civil actions. State, ex rel., v. Evans, 19 Ind. 92; Powell v. State, ex rel., 96 Ind. 108; Reynolds v. State, ex rel., 115 Ind. 421.

Changes of venue may be taken in such actions. State, ex rel., v. Smith, 55 Ind. 385. New trials may be granted as in other civil cases. Saint v. State, ex rel., 68 Ind. 128.

996. (984.) Justice must write woman's evidence.-7. The testimony of the mother shall be by such justice reduced to writing, read carefully to such witness, and by her be signed; and shall, by such justice, be returned to the circuit court with the other papers in such case, to be used by either party to sustain or impeach the testimony of such witness. The failure of the justice so to do shall not be ground of dismissal in the circuit court; but such justice shall recover no fees in such case.

If the written examination of the mother be offered in evidence, all of it must be read together. Wolf v. State, 11 Ind. 231.

If the defendant consents to give bond for his appearance in the circuit court he waives his right to have the testimony of the mother written down. Smith v. State, ex rel., 67 Ind. 61.

When the testimony of the mother is written down and transmitted by the justice to the circuit court it may be read in evidence in such court if the mother be dead. Broyles v. State, ex rel., 47 Ind. 251; Hicks v. State, ex rel., 83 Ind. 483.

An offer made to read the written examination of the mother in evidence may be refused if the purpose of the offer is not stated. Rannells v. State, ex rel., 18 Ind. 255.

997. (985.) Bond upon continuance.-8. Upon any continuance granted either party, the court or justice granting the same shall require of the defendant a like bond as is required in the fourth section [§ 981], or commit him to jail for failure to give such bond, and such

defendant may be discharged from custody in the same manner as in the fifth section of this act [§ 982] provided.

If a defendant fails to comply with the order of the justice, the sureties on the bond given on a continuance before the justice, will be liable for the judgment rendered in the circuit court. Turner v. State, ex rel., 66 Ind. 210; Rooksby v. State, ex rel., 92 Ind. 71.

998. (986.) Trial in absence of defendant-Transcript.-9. If the defendant shall not have been arrested, or has escaped after arrest, such trial shall proceed in his absence; and if he be adjudged the father of such child, the justice shall transmit the papers and a transcript of such judgment, without delay, to the clerk of the circuit court of the proper county, who shall file and docket the same for trial; and such cause shall be heard and determined by such court in the same manner as if such defendant were present.

The defendant must have been arrested or have notice of the action in some manner before a judgment can be entered against him. Melton v. State, ex rel., 9 Ind. 452. If the defendant escapes after arrest, the case may be tried in his absence and an order made for his arrest and commitment to jail. Lucas v. Hawkins, 102 Ind. 64; State, ex rel., v. Caldwell, 115 Ind. 6.

Where a defendant escapes after arrest, he may be arrested on a warrant from the circuit court without regard to the time that has elapsed since his first arrest. Patterson v. State, ex rel., 91 Ind. 364.

A personal judgment can not be rendered upon a notice by publication. Moyer v. Bucks, 2 App. 571; Beckett v. State, ex rel., 4 App. 136.

999. (987.) Filing is lien on realty.-10. The filing of such transcript, as in the preceding section of this act provided, shall operate, from the time of such filing, as a lien upon the real estate of the defendant to the extent of the judgment which may afterward be rendered against him in such prosecution; and such judgment shall have the same effect and lien as if rendered at the time of such filing; and such lien shall be declared in such judgment.

1000. (988.) No abatement if mother dies-Proceedings-Evidence.-11. The death of the mother shall not abate such suit, if the child be living; but a suggestion of record of the fact shall be made, and the name of the child substituted in the proceedings for that of the mother, and a guardian ad litem shall be appointed for that purpose, who shall not be liable for costs; and in such case, the testimony of the mother, taken in writing before the justice, may be read in evidence, and shall have the same force as if she were living, and had testified to the same in court.

On the death of the mother her written testimony taken before the justice is admissible in evidence, but the complaint is not admissible as evidence. Broyles v. State, er rel., 47 Ind. 251; Broyles v. State, ex rel., 64 Ind. 460; Hicks v. State, ex rel., 83 Ind. 483.

1001. (989.) When clerk to issue warrant-Bond-Commitment.— 12. When the defendant is not in custody, or under bond, and a transcript has been filed, as in the ninth section [§ 986] required, the clerk of the circuit court shall issue to the sheriff of any county where

such defendant may be alleged to be, a warrant for his apprehension; and such sheriff, if he arrest such defendant, shall require of him such bond as in the fourth section [§ 981] required; and on his failure to give the same to the satisfaction of such sheriff, he shall commit him to the jail of the county where such trial is pending.

1002. (990.) Trial in circuit court.-13. If the defendant, in the circuit court, deny the charge, the issue shall be tried by the court or a jury.

Bastardy suits are civil actions, and are governed by the civil code where different provisions are not made by statute. State, ex rel., v. Evans, 19 Ind. 92; State, ex rel., Brown, 44 Ind. 329; Powell v. State, ex rel., 96 Ind. 108; Reynolds v. State, ex rel., 115 Ind. 421.

If the defendant does not deny the charge he will not be entitled to a trial by jury. Wolf v. State, ex rel., 11 Ind. 231.

The defendant need not file an answer in the circuit court. Reynolds v. State, ex rel., 52 Ind. 391; De Priest v. State, ex rel., 68 Ind. 569.

The child can not be submitted for inspection to a jury to determine, by comparison, its paternity. Risk v. State, 19 Ind. 152; Reitz v. State, ex rel., 33 Ind. 187; La Matt v. State, ex rel., 128 Ind. 123.

A verdict that finds that the relatrix has been delivered of a bastard child, and that the defendant is the father thereof, is sufficient. Hull v. Conover, 35 Ind. 372.

As to intercourse by the mother with others than the defendant, and testimony concerning same, see Walker v. State, 6 Blkf. 1; Townsend v. State, 13 Ind. 357; O'Brian v. State, 14 Ind. 469; Thompson v. State, 15 Ind. 473; Whitman v. State, 34 Ind. 360; Keating v. State, 44 Ind. 449; Kintner v. State, 45 Ind. 175; Cunningham v. State, 65 Ind. 377; Hill v. State, ex rel., 4 Ind. 112; Ford v. State, ex rel., 29 Ind. 541; Kintner *. State, ex rel., 45 Ind. 175.

1003. (991.) Judgment against defendant.-14. If such jury find that the defendant is the father of such child, or such defendant, in court, shall confess the same, he shall be adjudged the father of such child, and stand charged with the maintenance and education thereof.

[1877, p. 5. In force July 2, 1877.]

1004. (992.) Order to pay-Commitment-How released.-15. Such court shall, on such verdict and judgment, make such order as may seem just for securing such maintenance and education to such child, by the annual payment to such mother (or if she be dead or an improper person to receive the same, to such other person as the court may direct) of such sums of money as may be adjudged proper, and shall render judgment for the same, specifying the terms of payment; and shall require of such defendant, if he be in custody, to replevy such judgment by good freehold surety, or, in default thereof, shall commit such defendant to jail. And should the defendant fail to replevy or pay said judgment, and in default thereof be committed to jail, and upon proof thereof being made to the court, that the defendant has been imprisoned in the jail of the county for a period of twelve months from the date of his imprisonment, and that he is unable to pay or replevy the same, he may be released from imprisonment by an order of the court, made at any regular term of said court; which order of release shall be entered upon the records of said court.