#### *Willard v. Overseers of the Poor of Wood County.

July Term, 1852,

Lewisburg.

1. Putative Father* — Liability — Case at Bar. — The County court makes an order against the putative father of a bastard child, that he shall pay to the overseers of the poor twenty dollars a year for seven years. Though the overseers of the poor may never have paid anything for the support of the child, they are entitled to recover these annual sums from the putative father.

2. Courts of Appeal — Practice—Case at Bar. — In such a case, the County court having decided in favor of the putative father, and the overseers of the poor having spread the fasts upon the record by an exception, and taken an appeal to the Circuit court, that court, upon reversing the judgment of the County court, should not send the cause back for anew trial, but should render a judgment in favor of the overseers of the poor for the amount appearing to be due, but without interest.

The case is stated in the opinion of the court.'

There was no counsel for the appellant.

Fry, for the appellees.

*

See monographic *note*on “Parent and Child” appended to Armstrong v. Stone, 9 Gratt. 102.

SAMUELS, J.,

delivered the opinion of the court.

The plaintiff in error, as security, was bound, jointly and severally, with his principal in a recognizance taken before the County court of Wood county", with condition that the principal should pay the sum of twenty dollars annually for seven years to the overseers of the poor of Wood - county, for the support of a bastard child, of which the principal was adjudged, to be the father. Five of these installments having fallen due, and being in arrear, the overseers, under the statute 2 Rev. Code, p. 273, § 31, gave notice to Willard alone of a motion *to be made in the County court of Wood county for the installments thus in arrear, with interest. After some delay the cause was tried before the County court, which overruled the motion, and gave Willard a judgment for his costs.

A bill of exceptions was taken by the overseers of the poor to the decision of the court: it sets forth the facts on which the County court acted. The facts, on the part of the plaintiff below, consisted of the notice above stated, and its service; the record of the County court, in the case in which the principal was adjudged to be the father of the bastard child, and the recognizance; the fact that the parties making the motion were the overseers of the poor of Wood county, and that the motion was made by their authority. After stating the facts, shewn on behalf of the plaintiffs below, the bill of exceptions states: “This being all the evidence offered by the plaintiff, the defendant then offered J. T., who proved that A. S. asked the witness to use his name, which was sanctioned, he recognizing said S. as acting attorney for the overseers of poor; does not know that any money has ever been paid by the overseers of the poor.”

The cause was carried by writ of supersedeas to the Circuit Superior court of law and chancery for Wood county, which reversed the judgment of the County court, and remanded the cause for a new trial. The cause is brought here by a writ of supersedeas to this judgment of the Circuit court.

It is objected by the plaintiff in error that the bill of exceptions is defective, in omitting to state that the facts therein set forth, as proven by Willard, were all the facts proven by him, and that, therefore, this court cannot determine whether the judgment of the County court was right upon the facts before it. This court has frequently decided that a bill of exceptions to the decision of a court, rendering a judgment, should set forth the facts appearing on the trial: this is necessary *to enable an appellate tribunal to determine whether the court below

decided the law correctly on the facts of the case. Bennet v. Hardaway, 6 Munf. 125; Carrington v. Bennett, 1 Leigh 340; Ewing v. Ewing, 2 Leigh 337. The bill of exceptions in this case, after stating the facts proven on the part of the plaintiffs, says the defendant then offered J. T., who-proved the facts set forth in the bill of exceptions, from which it must be inferred that he proved nothing else. Holding, therefore, that this court has all the facts before it, it seems that the county court erred in overruling the motion; although the overseers may never have paid anything for the support of the child, yet the child was chargeable to the county, and the plaintiff in error was bound to pay the amount secured by the recognizance in -relief of the county.

*71I an therefore of opinion there is no error in so much of the judgment of the Circuit Superior court of law and chancery for Wood county as reverses the judgment of the County court with costs. But I am further of opinion that there is error in so much thereof as remands the cause to the County court for a new trial. The court should have proceeded to render a judgment for one hundred dollars, the amount in arrear under the recognizance, with the costs expended in the County court: no interest should be allowed, for the reasons given by Judge Carr, in Jacobs v. Hill, 2 Leigh 393, 400.

The judgment of the Circuit court should be affirmed, so far as it reverses that of the County court with costs; but so far as it remands the cause to the County court for a new trial, it should be reversed; and this court, proceeding to give such judgment as the court below should have given, should render judgment in favor of defendants in error for 100 dollars, and the costs of the County court; and also the costs in this court, as being the parties substantially prevailing.