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That portion of the act which provides that the defendant, if he be in custody, shall be required to secure the payment of the judgment rendered against him by good and sufficient securities, and, in case of default, that he shall be committed to jail until the security is given, is not in conflict with section 16 of article 2 of the constitution.

A. R. May, C. W. Johnson, and W. D. Webb, for petitioner.

S. B. Bradford, Atty. Gen., James Falloon, R. F'. Buckley, and Ira J. Lacock, for the State.

JOHNSTON, J. This is an application for a writ of habeas corpus by George H. Wheeler, in which he alleges that he is illegally deprived of his liberty by the sheriff of Brown county. The petitioner was charged by Ida E. Robbins, an unmarried woman, with being the father of a bastard child of which she was pregnant, and at a trial in the district court a jury found him to be the father of such child, and he was adjudged by the court to pay to the relator, Ida E. Robbins, for the support of the child, the sum of $1,000 in 20 equal installments of $50 each. It was also adjudged that he should secure the payment of the $1,000 by good and sufficient sureties to be approved by the clerk of the court, and in default thereof that he should be committed to the jail of Brown county, Kansas. The return made by the sheriff shows that the petitioner has failed to comply with the judgment of the court, and that he is now held by virtue of a commitment issued upon such judgment. The petitioner alleges that his restraint is illegal, for the reason that the several provisions of the bastardy act which provide for imprisonment are in violation of section 16 of the bill of rights in the constitution, which is that "no person shall be imprisoned for debt except in cases of fraud." That part of the bastardy act which provides for the enforcement of the judgment of the court reads as follows:

"Sec. 13. Such court shall, on finding or confession, render such judg ment and make such order as may seem just for securing the maintenance and education to such child, by the ann al payment to the mother, or, if she be dead, or an improper person to receive the same, to such other person as the court may direct, and of such sum or sums of money as the court may order, payable at such time or times as may be adjudged proper. The judgment shall specify the terms of payment, and shall require of such defendant, if he be in custody, to secure the payment of such judgment by good and sufficient sureties; or, in default thereof, he shall be committed to jail until such security be given."


It is urged in behalf of the petitioner that this and other sections of the act that provide for commitment to the county jail come within the prohibition of the constitution above quoted. We think There are many forms of liability that do not constitute a debt in the technical and legal sense of that term. Imprisonment for debt as here used has a well-defined meaning, and, as has been repeatedly decided, applies only to liabilities arising upon contracts. McCool v. State, 23 Ind. 129; Ex rel Brennan v. Cotton, 14 Ill. 414; Lower v. Wallick, 25 Ind. 68; Dixon v. State, 2 Tex. 481; Musser v.

Stewart, 21 Ohio St. 353; Hawes v. Cooksey, 13 Ohio, 242; Moore v. Green, 73 N. C. 394; Ex parte Cottrell, 13 Neb. 193; S. C. 13 N. W. Rep. 174. The charge of maintenance and education, while it is in the nature of a civil obligation and imposed in a proceeding which is essentially civil, though criminal in form, is not based upon contract, either express or implied. It is the duty of the father to make provision for the support of his illegitimate offspring. To compel him to assist in the maintenance of the fruit of his immoral act, and to indemnify the public against the burden of supporting the child, is the purpose of the proceeding in bastardy.

In Musser v. Stewart, supra, it is decided that a proceeding in bastardy "is not a suit to recover a sum of money owed from the defendant to the complaining party. The liability sought to be enforced is not founded upon contract, express or implied, but originates in the wrongful act of the defendant, against the consequences of which the statute is designed to protect the public." In Ex parte Cottrell, 13 Neb. 193, S. C. 13 N. W. Rep. 174, it is said that the proceeding "is properly a police regulation requiring the putative father to furnish maintenance for the support of his child, and to indemnify the public against liability for its support. The sum charged against the petitioner is not a debt in the sense in which that word is used in the constitution." In Lower v. Wallick, 25 Ind. 68, it was expressly ruled that the payment of money compelled by the statute for the support of an illegitimate child was not in the nature of a debt due upon contract, and that the provision in the constitution forbidding imprisonment for debt except in cases of fraud applies only to debts arising

ex contractu.

The only cases brought to our notice holding a contrary doctrine are Byers v. State, 20 Ind. 47, and Holmes v. State, 2 G. Greene, 501. In Lower v. Wallick, 25 Ind. 68, the supreme court of Indiana expressly overruled the first of these cases, and the second has been referred to and disapproved in Ex parte Cottrell, 13 Neb. 193, S. C. 13 N. W. Rep. 174, and in Lower v. Wallick, supra. The statute does

not assume that the relation of debtor and creditor exists between the father and mother of the illegitimate child. As has been seen, the charge of maintenance and education is not a debt due to the mother, nor is the money secured to be paid intended directly for her benefit, but is rather for the benefit of the child, and to save the public from the burden of its support.

The further objection is made to the validity of the statute that where the father is unable to comply with the order of the court, as the petitioner here claims to be, the period of imprisonment might continue an unreasonable length of time. This objection is answered by the limitation found in section 14 of the act in question, where the legislature has determined what is a reasonable time, and has provided that "no person adjudged to be the father of a bastard child shall be imprisoned for any failure to comply with any order, direc

tion, or judgment of a court or justice for a term exceeding one year." If the testimony did not warrant the judgment that was rendered by the court against the petitioner, he should have prosecuted a proceeding in error instead of in habeas corpus.

It is next suggested rather than urged that the act is in conflict with section 16 of article 2 of the constitution; that the title of the act is not sufficiently comprehensive to embrace a punishment by imprisonment for failure to provide for the maintenance of the child in accordance with the judgment of the court. The title of the act is broad and comprehensive, and fairly includes the provisions objected to. It reads as follows: "An act providing for the maintenance and support of illegitimate children." The commitment of the prisoner to the jail of the county prescribed in the act is only a means of making and enforcing a provision for the maintenance of the child. The naked judgment, without stringent means of enforcement, would, in many cases, afford no relief whatever.

When the application for a writ of habeas corpus was first made, it appears that there was no formal mittimus in the hands of the sheriff, and, technically, the sheriff had no authority for his restraint; but since that time the clerk of the court has issued a proper warrant of commitment, upon which he is now held. From the return made by the sheriff, it appears that the judgment and order of the court is valid, and has not been complied with by the petitioner; and even if the officer was without a warrant, or if the process in his hands was void, the petitioner could not be discharged, but should be held until valid process was obtained.

The question of who shall pay for the board, care, and custody of the petitioner during his commitment, raised by the sheriff, cannot be decided in this proceeding. The petitioner will be remanded. (All the justices concurring.)

(11 Or. 333)


BAKER and others v. EGLIN.1
March Term, 1884.


As against the garnishee, the attaching creditors acquire the rights of the attachment debtor.


Where one person, for a valuable consideration, agrees with another to pay a debt owing from such other to a third person, the latter can enforce the contract.

Appeal from Benton county.

John Kelsay and R. S. Strahan, for appellants.

W. S. McFadden, for respondent.

WALDO, J. The garnishee in this case was surety on several promissory notes made by his brother, James M. Eglin, as principal, and remaining unpaid, when, on the twenty-first day of June, 1880, Thomas purchased James' interest in the livery-stable which they were carrying on as partners in Corvallis. The consideration for such purchase was the payment of said promissory notes and the partnership indebtedness. Three of said notes remained unpaid when, on the third day of July, 1880, Thomas was served with process of garnishment by creditors of James. The question is whether Thomas is liable to James' creditors to the extent the contract between him and James for the payment of the said notes remained unexecuted at the date of the attachment.

Counsel for the attaching creditors argue, substantially, that Thomas appears on the face of the notes to be a principal; that he cannot show by parol that he was a surety merely, and consequently that the consideration for the contract fails. They also argue that the holders of the notes cannot sue Thomas on his contract with James; that Thomas' legal liability is to James and not to the holders of the notes, and therefore that he is liable here.

The rule is that the attaching creditors, as against the garnishee, acquire the rights of the attachment debtor, and no more. Curtis v. Alvord, 45 Conn. 571; Carpenter v. Gay, 12 R, I. 307; St. Louis v. Regenfuss, 28 Wis. 144; Drake, Attachm. § 672; Railway Co. v. Gates, 10 Or. 515. Thomas, as between himself and his principal, can show by parol that he was surety merely. Daniels, Neg. Inst. § 1336. Hence he can show it as against the attaching creditors.

On the second point the authorities with us are quite decisive that when A., for a valuable consideration, agrees with B. to pay his debt to C., the latter can enforce the contract against A. Campbell v.

1 See note at end of case.

Smith, 71 N. Y. 26; Ellwood v. Monk, 5 Wend. 235; Putney v. Farnham, 27 Wis. 187; Bassett v. Hughes, 43 Wis. 319; Joslin v. New Jersey Car-spring Co., 36 N. J. Law, 141; Stariha v. Greenwood, 28 Minn. 521; S. C. 11 N. W. Rep. 76; 23 Amer. Law Reg. 1.

The assent of the third person, for whose benefit the contract is made, will be presumed. Rogers v. Gosnell, 58 Mo. 589. It follows that a legal liability on the part of Thomas in favor of the holders of the notes existed at the date of the attachment, and therefore Thomas was not liable to garnishment. The judgment must be affirmed.


Right of Third Party for Whose Benefit Contract is Made to Sue Thereon.

At one time in England it was held that on an agreement between A. and B. for the benefit of C., the daughter of B., suit could be brought by C., Dutton v. Pool, Vent. 318, but it is now firmly settled in that country that the only parties who can sue on a contract are the parties between whom the contract is made. Tweddle v. Atkinson, 1 Best & S. 393; Price v. Easton, 4 Barn. & Adol. 433; Gurrin v. Kopera, 3 Hurl. & C. 694; Storer v. Gordon, 3 Maule & S. 308; Gresty v. Gibson, 4 Hurl. & C. 28; Chesterfield & M. S. C. Co. v. Hawkins, 3 Hurl. & C. 677; Hybart v. Parker, 4 C. B. (N. S.) 209; Reeves v. Watts, L. R. 1 Q. B. 412; Gray v. Pearson, L. R. 5 C. P. 568; Evans v. Hooper, 1 Q. B. Div. 45; Eley v. Assurance Co., 1 Exch. Div. 88; In re Empress E. Co., 16 Ch. Div. 125. In this country the English rule has been adopted and followed in many of the states. Segars v. Segars, 71 Me. 530; Butterfield v. Hartshorn, 7 N. H. 345; Lapham v. Green, 9 Vt. 407; Hall v. Huntoon, 17 Vt. 244; Mellen v. Whipple, 1 Gray, 321; Exchange Bank v. Rice, 107 Mass. 39; Pettee v. Peppard, 120 Mass. 522; Cottage Street M. E. Church v. Kendall, 121 Mass. 528; Moore v. Moore, 127 Mass. 22; Stoddard v. Ham, 129 Mass. 383; Treat v. Stanton, 14 Conn. 445; Colt v. Ives, 31 Conn. 25; Burnett v. Jersey City, 31 N. J. Eq. 341; Owings' Ex'rs v. Owings, 1 Har. & G. 484; Ross v. Milne, 12 Leigh, 204; Weathers v. Ray, 4 Dana, 474; Litchfield v. Garratt, 10 Mich. 426; but see Tookey v. Comstock, 8 N. W. Rep. 564; Monaghan v. Agricultural Fire Ins. Co., 18 N. W Rep. 800; Anderson v. Fitzgerald, 21 Fed. Rep. 294. But in other states there are many decided cases in which the right of beneficiaries to sue on contracts to which they were not parties is sustained, where the intention of the contract was that they should reap its fruits. Norwood v. De Hart, 39 N. J. Eq. 472; Ramsdale v. Horton, 3 Pa. St. 330; Beers v. Robinson, 9 Pa. St. 229; Justice v. Tallman, 86 Pa. St. 147; Merriman v. Moore, 90 Pa. St. 80; Thompson v. Thompson, 4 Ohio St. 333; Helms v. Kearns, 40 Ind. 124; Beasley v. Webster, 64 Ill. 458; Snell v. Ives, 85 Ill. 279; Mize v. Barnes, 78 Ky. 506; Green v. Morrison, 5 Colo. 18; Follansbe v. Menage, (Minn.) 9 N. W. Rep. 882; Stariha v. Greenwood, (Minn.) 11 N. W. Rep. 76; Green wood v. Sheldon, (Minn.) 17 N. W. Rep. 479; Hendrick v. Lindsay, 93 U. S. 143; National Bank v. Grand Lodge, 98 U. S. 123; Austin v. Seligman, 18 Fed. Rep. 519; Lake Ontario S. R. Co. v. Curtiss, 80 N. Y. 223; Vrooman v. Turner, 69 N. Y. 280; Garnsey v. Rogers, 47 N. Y. 233; Lawrence v. Fox, 20 N. Y. 268; Miliani v. Tognini, (Nev.) 7 Pac. Rep. 279; Winninghoff v. Wittig, (Wis.) 24 N. W. Rep. 912.

(11 Or. 327)

COOLIDGE and another v. HENEKY and another.

March Term, 1884.


Where a purchaser pays a valuable consideration, actual notice of fraudulent intent on part of vendor must be shown to make the sale void.

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Actual notice need not be established by direct proof; it may be inferred from the circumstances.

N. B. Knight and John Kelsay, for appellants.

Tilmon Ford and Shaw & Burnett, for respondents.

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