By the Court,
Savage, Ch. J.The defendant insists, 1. That it is not' averred in the declaration that the default oí Finck was entered of record, nor that he was called, and did not appear, and cites The People v. Van Eps, 4 Wendell, 393. The answer is that in that case there was a demurrer to the *479declaration. Here, then, is no demurrer; nor is there any plea which calls upon the plaintiffs to prove such facts. The plea of non estfactum admits all material averments, except the execution of the instrument. There is an averment that Finck did not appear and perform the order. 2. It is said that the court of sessions did not direct their clerk to prosecute this suit. To that I answer, that was not a question upon the record. The proper mode of taking advantage of such an omission would have been by motion. The court, at the circuit, are to look at the record to see whatfacts are material to be proved. If the clerk had directed this prosecution by order of the sessions, these facts would not necessarily appear on the record; and whether the suit was brought or not, is not a proper inquiry on the trial, particularly under these pleadings. 3. The issue on the fourth plea was found for the defendant, and he insists, that decides the merits of the cause in his favor. That finding decides. the fact, that on the day mentioned the distinction between town and county poor in Herkimer ceased, but the question of law remains, whether that discharged the defendant from his liability. The legal consequence of that proceeding probably is, that the child remains a pauper, not technically of the town, but of the county. But is this the contingency contemplated by the condition of the recognizance 1 The obligation imposed by the recognizance was, that Fink, the putative father, should pay the weekly allowance, so long as the child required that assistance, towards its support. It was decided in The People v. Corbett, 8 Wendell, 527, that the mother’s ability to support the child did not relieve the father ■from his liability : the child did not cease to be chargeable to the town on that account. To here the child continues chargeable, not indeed technically to the town, but it is not able to support itself, nor has it ceased to be a charge upon the public. Is it not an equitable argument, at least, to say, thát as the law cast the child upon the county, the county should have the benefit of the security which the town had ? and it is not presuming unreasonably to suppose that this action is brought for the benefit of the county, as the county is now liable for the support of the pauper. 4. As to the repeal of the act of 26th February, 1813, I do not see how that affects *480the casef or releases the defendant from his liability. The recognizance is a contract, entered into according to ¡aw"; and is such as the law declared proper at the time. That law is repealed, and a different security is directed for future cases ; but that does not invalidate a security ta.ken according to the law which was in force when it was taken. Such contract continues in force.
I am of opinion that a new trial be denied, and that the plaintiffs are entitled to judgment on the whole record, notwithstanding the verdict for the defendant, on the issue found on the fourth plea.