(Seventh Circuit — Noble Co., O., Circuit Court

June Term, 1898.)

Before Laubie and Burrows, JJ.

(Frazier, J., not sitting. 1

#### EMILINE LAW v. GEORGE ALBERT.

*Bastardy*— That *defendant has become the husband of the complainant pending the*suit, *is no bar now of itself to its further prosecution by*her—

The defendant in this case answered alleging that since the beginning of this action he and complainant were married and are now husband and wife, A demurrer to the answer was overruled. The complainant, by reply, admitted the marriage, but alleged that the defendant refused to acknowledge that he was the father of the child, and denied that he was its father, and that he had abandoned the mother and child immediately upon marriage and gone to another state.where he now resides. A demurrer to the reply was sustained. The complaint comes >nto this court alleging error in the court below in sustaining the demurrer to the reply and in overruling the demurrer to the answer.

Laubie, J.

In this case the court below erred in overruling the demurrer to the answer filed by the defendant, and in sus*160taining the demurrer to the reply, and in dismissing the ease, for the reasons following:

A prosecution for bastardy, after the accused has been bound over to the court of common pleas, cannot, under the provisions of the statute, be comprised by the complainant; and hence she cannot by her act dismiss the case, or cause it to be dismissed.

This case is unlike the case of Miller v. Anderson, 43 Ohio St., 473, (which is directly opposed to, and in which the court did not undertake to overrule, but only to distinguish from, Roth v. Jacobs, 21 Ohio St., 646). In that case the child was born in lawful wedlock, the complainant having married a man other than the defendant, pending the prosecution and before the child was born, he knowing that she was pregnant; and it was held, whether rightly or wrongly is immaterial here, that the child must be conclusively presumed, so far at least as the bastardy act was concerned, to be legitimate,and not a bastard,

Here, the child was born before wedlock, and was a bastard, and the marriage could not legitimize it. It would require, to do that, not only marriage, but an acknowledgment upon the part of the man after the marriage that he was the father of the child.

There was no admission of paternity in the answer of the defendant in this case, and the demurrer to the reply admitted the allegations in it that he not only never admitted, but that he denied that he was the father of the child, and had abandoned both mother and child immediately upon the marriage, and had gone to another state where he still resided.

Not having acknowledged the child as his, the defendant is not bound to support it, although he did marry its mother. It is still a bastard, and the question remains: “who is the father?1’ That must be determined under the provisions of the statute, so far-as the defendant is con*161-cerned, and in its determination the public is interested, as well as the child and the parties.

A prosecution for bastardy does not abate by the death ¡of the mother, nor because she fails to carry it on. The public, through its proper officers, may take up and carry •on her suit if she fails to do so, or may institute suit if she ■does not. The suit is not for the benefit of the mother, ¡according to the statute, but for the benefit of the child, ¡and to protect the public against the expense of its maintenance. The putative father is charged with the maintenance of the child in a sum to be named by the court, to be paid, it is true, to the mother, if alive, but no personal judgment is to be rendered in favor of the mother against ¡the defendant, as in case of recovery of a debt. Indeed, it is a quasi criminal proceeding, and may be instituted,in the name of the state on relation of the mother.

We know of no legal reason why the marriage should be a bar to‘the further prosecution of this case, nor why the defendant should be relieved from the penalties attached ¡to his offense. It is purely a statutory offense or question, •and if the defendant acknowledges the child to be his, it is ■a plea of guilty under the statute, and he should be adjudged the putative father, and stand charged with its •maintenance, as therein provided. On the other hand, if 'he denies its paternity, the question should be submitted to a jury, as in other cases, as in no other way can he be ■charged with its paternity and support.

That the complainant and defendant are now husband •and wife, has nothing to do with this question, under the "facts of this case and the provisions of the statute. Indeed,in this state a wife may contract with her husband the same as if no relation existed between them; and consequently she may maintain suits against him as if she were ¡a feme sole.- That the defendant has become the husband ■of the complainant, pending the suit, is no bar now, of *162itself, to its further prosecution by her; and we believe' never was.

*John L. Locke,*(Cambridge, O.), for Complainant.

*McGinnis & Leland,*for Defendant.

Reversed and remanded for trial.