#### DEVINNEY *v.*THE STATE.

Bastardy prosecution — complaint—prosecuting attorney — verdict—reputed father — order of maintenance.

The bastardy act requires the complaint of an unmarried-woman to be in writing, and if thejüry find the defendant guiUyythe court may judge him the reputed father of the* child,, make an order for its maintenance and security, and commit for *non*compliance.

A* bastardy prosecution is only quasi criminal, and if im-the name of- the state, should be on-the complaint of, &c.

The prosecuting attorney is not bound to attend to^suclv suits, and a service of a citation os? order on him is insufficient.

The complaint^&noukl show on its face that it is made by an *unmarried*woman.

If the jury otfTy find the defendant the reputed father of the child, they leave the- fact where* they found it*

After a- verdict of guilty, the court must adjudge him- the reputed father.

A simple order to pay a gross-sum without such verdict and judgment, is-erroneous.

If the citation in error is not served, the writ will be quashed or continued for service.

■Error, to the Common- Pleas. The notice and citation was served- on- the prosecuting attorney for Hamilton- county, who declines'*565to appeal’ for the state in this case. The record shows that a complaint, under the statute providing for the support and maintenance of illegitimate children, (29 O. *L.*433) was made by Sarah Knox, ‘that she was delivered of an illegitimate child in July last, [1829] and that Madison Devinney is father of said child.’ Upon a plea of *not*guilty, the jury found ‘the said Madison Devinney to be *the reputed father of said*child, *as set forth in the*accusation,’ &c. The court then ordered Devinney to ‘pay to said Sarah $100, viz. $20 in three months, and $20 every six months thereafter, till all paid, and that execution issue for the same at any time said defendant shall be in default.’

Strait, for the plaintiff in error,

claimed to reverse the judgment for the following errors, to wit:

1. That it don’t appear in what county, the proceedings before the justice were had.

2. That it is not alleged that the complainant was an unmarried woman resident in Ohio.

3. That the verdict does not find the defendant *guilty*of being *the father of the child.*

Wright, J.

The law, under which these proceedings were had, authorizes unmarried women residing in Ohio, who shall be pregnant with, or have been delivered of an illegitimate child, to institute proceedings against the father, for its maintenance and support, not for damages to the prosecutor. The law provides, that if the jury find him guilty, he shall be judged the reputed father of such child, and stand charged with the maintenance thereof, in such sum as the court shall order, &c. and the court shall require of him security to perform the order, and if he refuse to give it, he must be committed, &c.

This prosecution is quasi criminal, but not strictly so, and if conducted in the name of the'state at all, it should appear to be on the relation or complaint of the real party. We think it would be more proper to carry on the suit in the name of the party complaining. As none but an unmarried woman resident in the state, can commence and carry on this prosecution, the fact of the prosecutor being unmarried should be set forth, to show the jurisdiction or authority of the court to proceed, and we hold the omission fatal.

The finding of the jury here does not conform to the statute. It is not that the defendant is guilty of being the father- of the child, but that he is the *reputed*father, the fact is left where the jury found it, though they say reputation has fixed the child upon him. *566There is no judgment of the court on the finding, but only a simple order to pay a gross, sum, for what purpose is left to conjecture; nor is there an order for security, or of commitment, but an award of execution. There are abundant errors here to reverse the order, if we have the case.

There is no citation served on the party in interest. The state is no ways interested in the order, or privy to it. Its attorney declines to appear. We must quash the writ, unless the plaintiff prefer a continuance, in order for a new citation. The cause was then continued.