By the Court,
Savage, Ch. J.The first objection to the first count is, that the bond is void, because it is not taken in the form prescribed by the statute. This objection is not tenable. The bond, although not strictly in compliance with the statute, is not void as against the defendants. It is more favorable to the defendant than it should have been ; it ought regularly to have contained but one of the alternatives given by the statute. It should have containedbut one condition: either that the putative father would indemnify the county, or if he did not choose to do that, then the condition should have been to appear at the next general sessions, &c. The one operates as a submission to the order of filiation, except as to a weekly allowance to be made ; the other is an appeal from it.
The second objection is, that the justices had not jurisdiction to make an order of filiation. There seems to have been an *599omission in the statute as to the making an order of filiation when the bond is taken out of the county, and the condition is simply to indemnify; when the putative father is arrested in the county in which the warrant issued, he is to be brought before the justice who issued it, and proceedings are pointed out as to the making an order, 1 R. S. 644, Where the bond is taken out of the county, and the condition is to appear at the next general sessions, there the justice is directed how to proceed, and how the order shall be made; but where the condition in the last case is to indemnify merely, and not to appear, the statute is silent. That an order of filiation shall be made in such case, is evident from the section prescribing the form of the condition, 1 R. S. 643, § 8, That an order must be made is certain ; but how shall the justices proceed ? Where the putative father is brought before the justice upon the warrant, whether arrested in the county or out of it, the order is to be made upon an examination of the mother, in the presence of the person so charged, p. 644, § 11; but if he gives a bond in another county, he is discharged from the arrest, p. 643, § 9. In that case he does not appear before the justice. The examination may be made in his absence, § 18, 19 ; and though this provision embraces, in terms, the case where the condition is to appear, yet the reason is the same where the condition is to indemnify j and as no notice in such case is required, but the order must be made, it follows that the order may be made in the absence of the putative father. The justices therefore had jurisdiction to make the order. The next suggestion I have already answered. It is that the justices could make no order, unless the condition is absolutely to appear; and this bond is in the alternative. Unless the true construction is as I have supposed, it will be seen that no valid order of filiation can ever be made where the putative father is arrested in a foreign county, and gives a bond to indemnify, and not to appear.
The next difficulty suggested is as to the form of the judgment. For a breach of the first condition, damages are to be assessed; for a breach of the second, the penalty is forfeited. The answer is, that in both cases the penalty is technically forfeited ; and judgment in both cases is entered for the pen-*600It is true that in one case damages are to be assessed, and in the other, the whole penalty is to be recovered; but this, I apprehend, is no cause of demurrer to the declaration. ^ does not follow that the defendant is in any danger of being injured. There is but one penalty to the bond; that is the extent of the defendant’s liability. The plaintiff has averred that the defendant Tilton has broken both alternatives of his engagement; technically, therefore, he has forfeited the penalty ; and in order to show such forfeiture, it was necessary to aver the breach of both alternatives, as the bond is in the alternative. Whether the plaintiff must issue execution for the penalty, or proceed and assess damages, it is perhaps unnecessary to decide upon this demurrer; hut it cannot be improper to suggest that the latter is the proper course. The defendant failed to appear; but he may say that he did so because he preferred to take the other alternative of his bond, to wit, to indemnify the county ; and when he is proceeded against upon that alternative, he cannot say that he refuses to indemnify because he means to appear according to the condition of his bond. The admission by the demurrer is, that he has failed to perform that alternative; and he is therefore bound absolutely to the performance of the other. If these remarks are correct, it follows that theirs# count is good.
The second and third counts, however, are bad. The second avers a breach of the second alternative only of the condition of the bond. The answer is, that Tilton was not absolutely bound to its performance. He might choose to indemnify. The third count contains only a breach of the first alternative, to wit, that he has not indemnified; non constat, but what he appeared, and proceedings were had by which he was discharged.
Judgment must be rendered for the plaintiffs on the demurrer to the first count, and for the defendants on the demurrer to the second and third counts; with leave to both to amend on payment of costs. The plaintiff, however, needs no amendment, as he has one good count. It is suggested that as tife demurrers were special, if judgment is for plaintiff on either count, it should be final; but the answer is, that the objection is one which might have been raised on general demurrer.
Judgment as above.