#### THE STATE FOR WEBB *v.*HEATHMAN.

Bastardy act — order of commitment in court — poor debtor’s oath and discharge — record— admission — pleading.

The legislature had a constitutional light to subject persons committed under the bastardy act, within the provisions of the insolvent laws, and have done so in the act of J820.

Where the court, in session, order a commitment, the minute is the authority of the officer, and no writ or copy of the order is necessary for him.

Baities agreeing a fact at the trial, cannot object that the-admitted fact is not proven by record.

Títere is no law requiring the administration of the oath to a poor debtor and his discharge from prison, because the means of support aie not left, to be recorded.

But if there was such a law, and the debtor was duly sworn and dischaiged, the omission by the justice and sheriff to make the record would not depiive the debtor of his discharge.

The rule in pleading requires the pleader to disclose such a state of fact as constitutes a legal right or defence.

Leave will be given to amend after the opinion of the court is intimated.

Debt, on a recognizance under the act for the support of illegitimate children; plea, nil debet, with a notice of special matter, that the defendant appeared according to the recognizance, answered, and was discharged by due éóúrse of- law.

The case was submitted on the following agreed state of fact: that the defendant was brought before a justice on a complaint under the bastardy act of 1825, and duly recognized to appear in the *691Court of Common Pleas to answer the complaint and abide the order of the court thereon. He was found guilty, and the court amongst other things, ordered that he stand committed until the* order for payment and for security to maintain the child was complied with, as appears by the minutes of the court. Under this order he was imprisoned until he *swore out of jail,*but there was no" mittimus given to the sheriff nor any record of the swearing out, either on the justice’s or sheriff’s docket.

*Webb,*for the plaintiff,

insisted that none but record evidence was admissible to prove the commitment, the oath, and discharge; but if that were otherwise, it was incompetent for the legislature to provide for the discharge of a man thus committed, under the provisions of the insolvent law. . .

*Ford,*contra,

cited the act of 1820, 18 O. *Rep.*157, which places such prisoners within the operation of the insolvent laws.

Wright, J.

The record of the Common Pleas shows the *order to commit*made in open court. In such case a mittimus is not necessary — the order in court to the sheriff, is his authority, and the evidence of it being preserved of record, no writ or copy of the order was necessary. Could the accused be discharged except by complying with the order? The legislature has extended the operation of the insolvent provisions to prisoners under the bastardy act, (2 *Ch. O. L.*1424,) and we see no objection to the constitutionality of the law. Such prisoner could therefore be discharged from chstody altogether, or admitted to the prison bounds, under the insolvent laws. The fact of the *order*to commit is shown by the *record*— but the fact of the actual custody of the defendant, under that order, or of the oath taken, or of his discharge, does so appeal-. This is now objected to. These facts are admitted by the parties in their agreed case, and it would seem unnecessary to inquire, what kind of evidence exists to prove them? what is admitted in the case, the parties cannot deny afterwards. It is then a part of the case, that the defendant was committed and detained under the order until he swore out of jail. But if it were not so admitted, we are not advised of any law requiring records to be kept of the commitment, the administration of the oath for the prison bounds, or of the discharge for want of support. The insolvent laws require of the commissioner of insolvents to keep a record of his proceedings, and if the discharge was by his order, the record ought to be produced, instead of lesser proof; but the plaintiff cannot object that any fact which he has chosen to admit is not evidenced by record, the production of which he has waved by the admission. *692But if the law required, a record that the oath was administered, and the discharge given, we should not deprive the party oí the benefit of it, because the sheriff and justice neglected their duty in making the record. So far then as it regards the matters argued by counsel the causp is with the defendant: but we doubt if this defence is admissible under the general issue; and the *notice*discloses no matter warranting a judgment for the defendant. It asserts that the defendant was detained in custody until discharged by due course of law — this is not sufficient — it merely sets forth a legal proposition, without showing the facts upon which it claims to apply it. The rule requires the pleader to disclose facts which in law make a defence. You had better make up a more perfect issue by agreement.

The plaintiff objected to a change of the pleadings.

The defendant then asked and obtained leave to plead on the usual terms, and the cause was continued.