#### THE JUSTICES, &c. to the use of LUCY SHEW v. DAVID C. STEWART, et al.

The act of 1799, {Rev. ch. 531, sec. 3,) which authorises! a] summary-remedy against the reputed father of a bastard child, is not a repeal of the common law right of suing all or either of the obligors on the bastardy bond; and in suits on such bond, the notice required by that act need not be shown.

The summary remedy prescribed by this act is only cumulative, and applies only as against the reputed father, and not as against his securities on the bastardy bond.

This was an action of debt brought on a bastardy bond, the condition of which was as follows; “The condition of the above obligation is such, that, whereas a certain Samuel Stewart is charged with having a certain illegitimate child begotten on the body of Lucy Show ; now if the same Samuel Stewart, his heirs, executors, &c. shall provide for the support and maintenance of the said child to the indemnification of the parish of the county aforesaid, and shall perform such orders as the court shall from time to time make in the premises, then this obligation to be void, otherwise to remain in full force and virtue.” The breaches of the condition assigned were, that the said Samuel Stewart did not provide for the support and maintenance of the said child to the indemnification of the said county; and that he did not perform such orders of the court as were made in the premises. The defendants-pleaded the general issue, conditions performed and conditions not broken. The writ was issued the 24th day of August, 1832. The plaintiff in support of his case offered in evidence the record of the county court which contained the following entry and orders: “ August Term, 1831, State v. Samuel Stewart. Bastardy. Lucy Shew, Pros. The defendant, Samuel Stewart, came into open court and entered into bond in the sum of five hundred dollars with David C. Stewart and Robert Stewart, securities. Ordered by the court that Samuel Stewart pay to Lucy Shew, the pros, the sum of four dollars instanter; sixteen dollars at August Term, 1832,” &c. No further *413evidence of the breaches were offered. No evidence was offered that any express notice, or any other notice, except what might be inferred from the record of the County Court, was ever given to the defendants or either of them, of the orders of the court, before the filing of the plaintiff’s declaration in this case.

Upon these facts appearing to his Honor Judge Martin, on the last Spring Circuit at Guilford, he directed the plaintiff to be non-suited, on the ground that no notice had been served on Samuel Stewart, according to the act of 1799, Rev. ch. 531, s. 3. A motion was made to set aside the non-suit, which being refused, the plaintiff appealed.

Nash for the plaintiff.

TV. A. Graham for the defendants.

Daniel, J udge,

after stating the case, proceeded : — It is conceded that, were it not for the act passed in the year 1799 {Rev. ch. 531, sec. 3) the plaintiff might have sustained this action without giving any notice or making any demand for the money due on the orders made by the court, and have recovered for the breach of the condition of the bond, the amount due on such orders at the date of the writ. But it is contended that a different remedy is provided by that act, and that it must be pursued before any action can be had on the bond for the non-payment of the money-orders made by the court. It seems not so to us. The third section of the act of 1799 declares, that when the court shall charge the reputed father of a bastard child with the maintenance as prescribed by the act of 1741, {Rev. ch. 30, sec. 10,) and the reputed father shall refuse or neglect to pay the same, then the County Court shall have power (on notice being served ten days before the sitting of the court, or returned by the sheriff that the defendant is not to be found) to order an execution against the goods and chattels, lands and tenements, of the said reputed father, sufficient to satisfy and discharge such sum as the county court shall adjudge for the maintenance of the bastard child. This summary way of proceeding against the reputed father (for it does not extend to the *414securities) is but a cumulative remed}*", and by no means a repeal of the common law right to sue all or either of the defendants on the bond when a breach of any of the conditions may happen. If the reputed father has property in the,county sufficient to satisfy the money-orders made by the court, the summary remedy is to be recommended, but we cannot say that it is the only remedy. The non-suit must be set aside, and a new trial granted.

Per Curiam. Judgmen t reversed.