State v. Bryan, 83 N.C. 611 (1880)

June 1880 · Supreme Court of North Carolina

83 N.C. 611

STATE v. CATO BRYAN.

Bastardy — Qosts—Discharge of Insolvents.

'1. Neither the judge nor solicitor has the right to allow a defendant in bastardy proceedings to take the insolvent’s oath and obtain his discharge without remaining in prison for twenty days.

3. It is a novel and untenable proposition that the allowance to the mother of a bastard should be paid by the county when the father takes the insolvent’s oath.

8. Proceedings in bastardy being altogether of n civil character-, when the defendant is discharged on taking the oath of insolvency, the law as to costs in civil actions prevails, whereby the county for whose benefit the proceedings ai-e instituted is liable for the costs of the states but not for the solicitor’s fees nor for the costs of the defendant.

(State v. Davis, 82 N, C., 610; State v. Pate, Busb., 244; State v. Higgins, 72 N. C., 226; State v. Hickerson, Ib., 421, cited and approved.)

PROCEEDING in Bastardy, heard at January Special Term, 1880, of Waice Superior Court, before Avery, J.

This proceeding was commenced before a justice of the peace to subject the defendant to the maintenance of an -illegitimate child, charged to have been begotten by him upon the body of one Jenny Green. The case was tried by a jury in a justice’s court, and the defendant was found by the verdict of the jury to be the father of the child, and he was fined ten dollars and adjudged to pay the mother of. the child fifty dollars and the costs of the proceeding, from which judgment he appealed to the superior court of Wake. And at said term he admitted the paternity of the child, and. with the consent of the solicitor, was -allowed to take the oath of insolvency and be discharged. The solicitor for the state then moved that the county of Wake be ordered to pay the mother the sum of fifty dollars allowed by the justice for the maintenance of the child, but'the motion ’was overruled and the county was ordered by the court to pay one-half of the costs of the clerk and sheriff and one-half of the solicitor’s1 fee, from' which ruKng- the state ap-; pealed.

Attorney-General, for the Stale.

No counsel in this court for defendant.-

Ashe, J.

There is error.- In the first place the defendant should, not have been allowed to take tire oath of insolvency without remaining in prison for the space of twenty days. The solicitor had no right to consent to his discharge,- and the judge n-o power to dispense with the imprisonment. See Bat. Rev., ch. 60; §§. 26-31; Acts 1875, ch. 11; State v. Davis, 82 N. C., 610.

The. motion of the solicitor to eharge'the county with the” fine of fifty dollars to-be paid to the mother of the child for - its maintenance, was a novel proposition. If the putative-father was unable to give the bond for the indemnification of the county against the maintenance of the child and the mother was unable to support' it, its condition was just the-same as that of the other poor of the county, to be supported like- them in the manner prescribed by law. Its being the illegitimate offspring of an insolvent father who-had escaped the responsibility of its support through the tender regard of the law for the personal liberty of the citizen, gave it no privileges over the other unfortunate paupers of the county..

In overruling this motion there was no error; but there-was error in the rilling of the court that the county of Wake-should pay one-half of the- costs of the clerk and sheriff and-one-half of the solicitor’s fees. The order seems to have-been made under a misconception of the nature of the proceeding. Proceedings in bastardy are not criminal nor even quasi criminal, but are civil proceedings; and the law as to-the costs therein is the same as in other civil actions or proceedings. State v. Pate, Busb, 244; State v. Higgins, 72 N.C., 226; State v. Hickerson, Ib., 421. This being a oivil proceeding instituted in the name of the state far the benefit of the county-of Wake ¡and the defendant hawing been allowed to take the oath of insol-vency ¡and be discharged, the county of Wake is liable for the eosts of the state,in this behalf expended, but not for the solicitor’s fees or any part thereof, nor for the costs of the defendant.

Let this be certified to the superior court of Waké county, (that further proceedings may he had in .conformity to .this (Opinion. ■

Error. ' Reversed.