Howard vs. Brown, adm'r.

makers removed without the limits of the State before the three months expired, it was the risk of the holder, and the indorser was discharged if in the exercise of ordinary diligence the holder could have sued before the maker went away." Suppose the makers had become insolvent after the notice, and before the expiration of the three months, and the holder sued them on the last day of the time allowed by the statute, at whose risk was the solvency or insolvency of the makers, during the three months? If the indorser was bound for the debt to the holder until after the expiration of the time prescribed by the statute, then the solvency of the makers was at the risk of the indorser, although the holder might, perhaps, by the exercise of ordinary diligence in instituting suit at an earlier period, have collected the debt out of the makers.

But the record declares, that in this case the holder did not sue within the three months, for the reason that, before the expiration of the time, the makers removed beyond the jurisdiction of the State, so that the holder could not sue them; and the Court below ruled that such removal was at the risk of the holder. This is an important question to the holders of commercial paper.

The indorser was, in our judgment, bound to the holder for the payment of the money until the expiration of the three months, and the holder had the full time allowed him by the statute to institute the suit; and if, in the mean time, the makers removed beyond the limits of the State so that they could not be sued, it was at the risk of the indorser or security who was bound for them, and not at the risk of the holder, who refused to trust the makers without the security. If, before the statute, the removal of the makers would have been at the risk of the indorser or security, and not at the risk of the holder, upon what principle is it that, during the three months while the holder's rights are as perfect as under the old law, the risk of the removal of the maker beyond the jurisdiction of the court, is shifted from the indorser or security to the holder of the note where is the authority for declaring that the risk is so shifted? The statute does not so declare, nor do the principles of the commercial law, to which reference has been already made. The indorser, or security, derives no assistance from the statute for the purpose of restricting his liability to the holder, until after the expiration of the three months; the statute does not take from the holder any of his rights during the three months, which he had under the old law, nor does it dimin

Howard vs. Brown, adm'r.

ish in the least degree during that period, the responsibility of the security or indorser to the holder of the note. Nor does this view of the question impose any additional burden or hardship on the security or indorser, for he has the same right, if he wishes the makers sued at an earlier period, during the three months than the holder is willing to institute suit to take up the paper from the holder, and institute the suit himself against the makers, as he had before the passage of the statute.

If the indorser is unwilling to wait the time which the statute gives the holder to sue the makers, it is not only his right to take up the note from the holder and institute the suit himself against them, but his duty also, if he wishes to protect himself against the consequences of the removal of the makers beyond the jurisdiction of the Court within the three months; for it is the security who -trusts the principal debtor; the holder, by requiring security, clearly manifests that he is unwilling to trust the maker, and "he who trusts most shall lose most," is stated by Lord Hardwicke to be the rule, in Skip vs. Huey, 3 Atk. R. 93. Besides, there exists a practical difficulty in enforcing the rule, as stated by the Court below, that "the indorser is discharged, if, in the exercise of ordinary diligence, the holder could have sued before the maker went away." What is to be considered "ordinary diligence" on the part of the holder? Shall he be required to sue in one, three, or six weeks after the notice? The rights of the holders of commercial paper would, in our judgment, be subjected to great inconvenience and uncertainty with regard to their rights, when made to depend on judicial discretion and caprice as to what should be considered ordinary diligence in commencing suit against the maker, instead of the definite and fixed period prescribed by the statute, The statute regulates the time within which the suit shall be instituted, after the notice to proceed to collect is given by the security or indorser, and we have no desire to introduce any exceptions to the uniform operation of that rule, which must necessarily be made to depend upon judicial discretion as to what shall constitute "ordinary diligence;" when the legislature have definitely declared the rule as to what shall constitute ordinary diligence, in commencing suit against the maker by the holder of the note, in order to discharge the security or indorser. We are therefore of the opinion, for the reasons already stated, that the security or indorser is bound to the holder for the payment of the debt, until the expiration of the three months from the time of the notice; and if the VOL. III.

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Locke vs. The State.

makers remove without the jurisdiction of the court within that time, so as to prevent the holder from suing them, such removal is at the risk of the security or indorser who became bound for the makers, and not at the risk of the holder.

Let the judgment of the Court below be reversed, and a new trial granted.

Judgment reversed.

No. 70.-WILLIAM LOCKE, plaintiff in error vs. THE STATE OF GEORGIA, defendant in error.

[1] In an indictment under the 26th section, 11th division of the penal code, for bastardy, it is necessary to charge distinctly that the defendant is the father of the bastard child.

[2.] The facts that the defendant is the father, and that he has failed or refused to give the bond in pursuance of law for the education and maintenance of the child, constitute the offence.

Indictment for bastardy. Tried before Judge HOLT. Washington Superior Court. September Term, 1847. Verdict guilty.

It was not averred in the indictment that the plaintiff in error was the father of the alleged bastard child. For a copy of the charging part of the indictment, see the opinion delivered by the Supreme Court.

Several grounds of error were taken by counsel for the plaintiff in error. The only one considered by the Supreme Court was that predicated upon the refusal of the Court below to arrest the judgment, to wit, that it was not charged that the plaintiff in error was the father of the alleged bastard child.

The other grounds of error not having been considered by the Supreme Court, are omitted.

JOHNSTON & THOMAS, for the plaintiff in error.

FLOURNOY & MCCONNELL, for the State.

Locke vs. The State.

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

The bill of indictment in this case charges the defendant with a misdemeanor, "for that the said William Locke, (the defendant) of the county of Washington aforesaid, on the sixteenth day of June, in the year of our Lord one thousand eight hundred and forty-seven, with force and arms, in the county of Washington aforesaid, was arrested, by virtue of a warrant issued by one Green Andrews, a justice of the peace in and for the county aforesaid, having lawful and competent authority in the premises; which was issued upon the affidavit of one Nancy, alias Ann Wells, (a free single white woman,) charging the said William with being the father of a child with which she was pregnant, and, which was likely to be born a bastard and to become chargeable to the county; and that the said William was taken by virtue of said warrant before the said Green Andrews, justice of the peace aforesaid, and by him required to give bond and security in terms of the law, for the maintenance and education of the said child, which the said William then and there, to wit, in the county and State aforesaid, refused and failed to do, and so the jurors aforesaid &c."

Upon the trial of this indictment the defendant was found [1.] guilty. A motion was made to arrest the judgment upon several grounds, which was refused by the presiding judge. Error is assigned upon the grounds taken in the motion to arrest. As we are of opinion that the motion ought to have been granted upon one of the grounds taken, it will not be necessary to express any opinion as to the others. It is urged that the bill of indictment does not charge the defendant with being the father of the child; that therefore no issue was made before the jury as to that fact; that he is found guilty only of the facts charged in the indictment, and that those charges not amounting to any offence known to the laws of Georgia, he is guilty of and can be punished for no offence, and therefore the judgment ought to be arrested. In other form, it is contended that the indictment is fatally defective in this, that it does not charge the defendant with being the father of the child. We think it is fatally defective in that particular, and as it stands, charges the defendant with no offence known to our laws. Whether it be or not necessary to charge the defendant with being the father of the child, depends upon what constitutes this

Locke vs. The State.

misdemeanor; it is an offence created by our penal code; it will be necessary therefore to refer to the statutes.

The act "respecting bastardy and other immoralities," passed in 1793, (Prince 140,) provides, that any justice of the peace, upon his own knowledge or upon information, of any free white woman having a bastard child, or being pregnant with one which it is probable will become chargeable to the county, may cause the offender to be brought before him by warrant, and require her to give bond and security for the support and education of the child until it arrives at the age of fourteen, or to discover on oath the father. If the mother discovers on oath the father, it is then made the duty of the magistrate to cause such reputed father to be brought before him upon warrant, and upon his refusal to give bond and security for the maintenance and education of the child until the age of fourteen years, for the lying-in expenses and the board, nursing and maintenance of the mother whilst she is confined, to bind him over in a sufficient recognisance, to be and appear at the next Superior court of the county. It further makes it the duty of the prosecuting officer at that court, to prefer a bill of indictment against the reputed father, to answer such complaint as may be then and there alleged against him. The character of the complaint is not prescribed in this act, that is, the offence is not defined; but it is defined in the penal code subsequently adopted, in these words, to wit: "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, such putative father shall be indicted for a misdemeanor, and upon 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 of $700 for each child;" and if he is unable to pay the fine, the penal code declares that he shall be punished by confinement in the county jail for the space of three months. Under this clause of the penal code the defendant was indicted. The act of 1793 is referred to as a clue to the meaning of the code, although without it, its meaning would not be difficult of ascertainment. The primary object of the act of 1793, was to protect the county from the charge of bastard children; this it seeks to accomplish by requiring the mother, at her option, to give bond and security for the education and maintenance of the child, or disclose its father on oath. If the former is done, then there is an end to the whole matter; if the latter,