#### Mary Ann Adams *versus*Joseph B. Whiting *et al.*

If a bond taken by a justice of the peace, of one accused as the father of a bastard child, is duly returned to the next Court of Common Pleas, and the complaint is entered on the clerk’s docket at the same term, and the child not being then born, a continuance is entered on the docket, the bond is thereby well continued, within the meaning of *St.*1785, *c.*66, $ 2, and it is not necessary that the continuance should be entered on the bond itself.

This was an action upon a bond executed by the defendants, conditioned that Whiting should appear before the Court of Common Pleas, at April term, 1829, to answer to the complaint of the plaintiff, charging him with being the father of a *201bastard child with which she was then pregnant, and to abide the order of the court relative to such complaint. The bond was duly returned to the Court of Common Pleas at April term, 1829, by the justice of the peace who took the examination of the plaintiff, and the complaint was entered in usual form on the clerk’s docket; and at the same term Whiting appeared, pursuant to the condition of the bond; and as the child was not then born, the process was continued by order of the court, and the continuance entered on the docket in usual form, neither of the defendants objecting. No continuance was separately and specially entered on the bond ; which was on file, enclosed with other papers. At the ensuing term Whiting appeared, and upon the trial of the issue a verdict was returned against him, and he was thereupon adjudged the reputed father of the child, and an oi der of maintenance was passed ; but before the return of the verdict, Whiting avoided, and though called, did not appear nor abide the judgment and order of the court.

The parties agreed, that if this Court should be of opinion that the process and proceedings had been so conducted as that the plaintiff was entitled to recover on the bond, then the defendants (or either of them) were to be defaulted; otherwise the plaintiff was to become nonsuit.

*Richardson*and Lovering, for the plaintiff,

cited *Merrill*v. Prince, 7 Mass. R. 396.

*Metcalf*and *Mann*for the defendants.

*Nov. 2d*

The opinion of the Court was afterwards drawn up by

Shaw C. J.

The principal in the bond having avoided and failed to comply with the order of the court, there was a breach of the condition, if the bond was then in force. But it is contended for the defendants, that the effect of the condition was to appear at the April term, and abide the order of the court, (to be then made, and that thenceforth the obligation of this bond ceased.

This question depends upon the construction of the statute upon this subject. *St.*1785, c. 66, § 2.

This statute provides, that every justice of the peace, to whom complaint is made by any woman, &c., may at his discretion nind the accused to the next court, with sufficient surety or *202sureties, to answer such accusation and abide the order of court thereon. And if the woman be not then delivered, or be unable to attend, the court may order the continuance or renewal of his and her bond, &c., and the continuance of such bonds to the next court entered thereon by order of the court, (unless the surety or sureties shall object thereto,) shall have the same forcé and effect as a recognizance taken in court, for the next term.

Does it appear that the court ordered a continuance of this bond, within the meaning of the statute ? We are of opinion that it does so appear, that the bond was well continued, and had force and effect as such at the next term of the court. We think it is not necessarv that the continuance should be written on the bond itself; but if it appears by the records and proceedings of the court, that the bond was ordered to be continued, it is a compliance with the requisitions of the statute. This is strongly implied, though not expressly ruled, in a former case in this Court, *(Merrill*v. Prince, 7 Mass. R. 396,) in which Chief Justice Parsons, speaking of such a bond, and the authority of the court to order a continuance of it, adds, “ which order entered on record, shall have the same effect as a recognizance to appear at the next term.” We think that the entry of a continuance on the docket, necessarily intends a continuance of all the acts and proceedings belonging to the case, entered under the name of *JLdams*v. Whiting, which were necessary to give effect to the prosecution pending before the Common Pleas, under that name. The facts show that the complaint and bond were filed together, with other papers connected with that prosecution and designated by that title.

In order to give legal effect to such continuance, it is not necessary that the sureties should assent; it is sufficient that they do not object. Such being the legal effect of their obli-r gation, which they are presumed to know, if they would object they must appear and make their objection known. Aftér the entry of a continuance, and no notice of any objection appearing, it will be presumed that none was made. But here it appears by the facts, that the continuance was entered, “neither of the defendants objecting.” Being of opinion that *203this bond was duly continued, and by virtue of the statute, was in force as a bond at the September term of the court, the default and avoidance of Whiting at that term were a breach for which the plaintiff is entitled to recover.1

*Penalty of the bond adjudged forfeited.*

1

 See Rev. Stat. *c,*49, § 2.