#### STATE and FANNIE TERRY v. BUD CURRIE.

(Filed 14 December, 1912.)

1. Bastardy — Civil Action — Purpose.

Bastardy is a civil proceeding for the enforcement of a police regulation as far as it is necessary for the purpose of securing an allowance to the woman, and to relieve the county from the necessity of supporting the child.

*2762. Bastardy — Denial Under Oath — Justice’s Court — Proceedings— Presumptions — Appeal and Error.

In bastardy proceedings it is necessary for the defendant to deny under oath the paternity of the child (Revisal, sec. 254), though not necessarily in writing, and when it appears that the case had been tried before the justice as if the denial had been made and verdict rendered for the defendant, it will be assumed in the Superior Courts on appeal that the trial proceeded regularly, and the justice failed to make the required entry.

3. Bastardy — Denial Under Oath — Justice's Court — Appeal—Incomplete Return — Docket—Practice.

In bastardy proceedings the justice of the peace before whom the trial is had should take the denial of the defendant under oath, before trying the case, so as to make up the issue, and should regularly note it on his docket and in his return; and if the docket is incomplete in. this respect the Superior Court judge on appeal should allow the denial to be entered nunc pro tunc.

4. Same — Motions—Interpretation of Statutes — Substantial Compliance.

In the Superior Court on appeal in bastardy proceedings it is not necessary that the return of the justice, before whom, the case was originally tried, technically comply with the direction of the statute; and if a more perfect return is desired, and it is substantially sufficient for the court to act upon, the court has statutory power to have one sent up. Revisal, secs. 1467, 1494.

5. Same — Practice.

A motion to dismiss, in the Superior Court, an appeal from, a justice of the peace, based upon the defectiveness of the justice’s return, should not be allowed when it sufficiently appears therefrom to inform the court of the course of the proceedings before the justice and to enable it to proceed to the trial of the cause. If the return is incomplete, the proper motion is to require a better one from the justice.

Appeal by defendant from Peebles, at September Term, 1912, of RICHMOND.

This is a proceeding against defendant for bastardy. The prosecutrix, Fannie Terry, made an affidavit before the justice of the peace, charging the defendant with the paternity of her child. There was a jury trial before the justice on 12 July, 1912, and a verdict of acquittal rendered. Judgment was entered upon the verdict, discharging the defendant and taxing *277tbe prosecutrix with, the costs, from which she appealed to the Superior Court. The following are the entries on the docket of the latter court:

“Number 92. State v. Bud Currie. Bastardy. Appeal by plaintiff from jury verdict. Docketed to September Term, 1912. Transferred to civil-issue docket. Set for trial second case at next civil term.

“Number 240.' Fannie Terry v. Bud Currie. Transferred from State docket and docketed to September Term, 1912.”

Defendant moved at September term to dismiss the appeal, and the judge found as facts upon the motion that the judgment of the justice was rendered on 15 July, 1912,'and that the next regular term of the Superior Court' (a criminal term) was held on 2 September, 1912. The justice did not make any return other than what appears on the docket in No. 92 at the criminal term, and in No. 240 at the civil term. No recordari was asked for by either party. Prior to the September criminal term, the justice delivered to the clerk of the Superior Court the warrant of arrest, containing the affidavit of the prosecu-trix aud other indorsements thereon, including the statement that the prosecutrix had appealed to the Superior Court, and the clerk docketed the case and made the entries as appears. The appeal from the justice’s decision was taken in open court at the trial. The judge ordered the action to be transferred to the civil-issue docket, and set it for trial at the next term, which convened on 23 September, 1912. Upon these facts and the papers in the cause, the court denied the motion to dismiss, and defendant excepted.

Upon an intimation by the court that, as defendant had failed • to deny the accusation in writing and under oath, there was no issue raised by the pléadings, the defendant, before being called upon to plead and before the jury were impaneled, asked for permission to make denial under oath, and upon the request being refused,' he tendered himself and others as witnesses, after being duly sworn by the court, to disprove the charge, and moved that they be heard. Both motions and the tender were refused, and defendant excepted.

*278The court thereupon instructed the jury peremptorily to convict the defendant, holding that the affidavit of the prosecutrix was presumptive evidence of guilt. The jury returned a verdict of guilty, according to the judge’s charge. Judgment that the defendant pay the prosecutrix the sum of $50 in monthly installments, as an allowance, and $1 as a fine, was entered. Defendant excepted and appealed.

Attorney-General Biolcett and Assistant Attorney-General Calvert for the State.

Gox ’& Dunn for defendant.

WalkeR, J.,

after stating the case: We said in S. v. Addington, 143 N. C., 683, that our decisions had finally determined this to be a civil proceeding for the enforcement of a police regulation, so far as it is necessary for the purpose of securing an allowance to the woman and to relieve the county from the burden of supporting the child. S. v. Liles, 134 N. C., 735; S. v. McDonald, 152 N. C., 802. The procedure in such cases is clearly prescribed by the statute. The warrant is issued by a justice of the peace, “upon the voluntary affidavit and complaint of the mother of the bastard,” and the defendant, or putative father, is served and brought before him to answer the charge. If he denies the accusation under oath, the justice proceeds to try the issue of paternity; and if he is found to be the father of the child, or if he fails to deny the accusation under oath, “he shall stand charged with the maintenance of the child, as the court may order.” Revisal, secs. .252-254. By section 255, the “examination of the woman” is made “presumptive evidence against the person accused, subject to be rebutted by other testimony which may be introduced by the defendant.” We find nothing in the statute (sec. 254) requiring that the defendant shall make his denial in writing, though it must be under his oath. Pleadings before justices may be oral, except when specially provided that they shall be in writing. In this case the record entries show that an issue was made up and tried'before the justice, with the result that the defendant was acquitted. The case was tried before the justice as if the denial had been made. There could have been' no issue to try *279unless it bad been, and after verdict we must assume tbat tbe trial proceeded regularly and tbe justice failed to make tbe required entry. S. v. Farrar, 104 N. C., 702. It appears inferentially tbat defendant was examined before tbe justice on oatb. It is true tbat tbe justice should bave taken tbe denial of defendant under oatb before proceeding- to try tbe case, so as to make up tbe issue, and should regularly note it on bis docket and in bis return. Under tbe facts and circumstances of this case, if tbe record was not complete in this respect, tbe judge should bave allowed tbe denial to be entered nunc pro tunc. But while tbe return of tbe justice does not technically comply with tbe directions of tbe statute and is not in tbe regular form, it was substantially sufficient for tbe court to act upon, and if a more perfect return was desired, there was ample power to bave one sent up. Eevisal, sees. 1467 and 1494. “No process or proceeding begun before a justice of the peace, whether in a civil or a criminal action, shall be quashed or Bet aside for tbe want of form, if tbe essential matters are set forth therein; and the court in which any such action shall be pending shall bave power to amend any warrant, process, pleading, or proceeding in such action, either in form or substance, for tbe furtherance of justice, on such terms as shall be deemed just, at any time either before or after judgment.” Eevisal, sec. 1467. “If tbe return be defective, tbe judge or clerk of tbe appellate court may direct a further or amended return as often as may be necessary, and may compel a compliance with tbe order by attachment.” Eevisal, sec. 1494. It would not be fair or just to tbe defendant, when tbe case was beard in tbe justice’s court, either upon a proper denial, not noted in the return, or as if one bad been made, without objection from tbe State or tbe prosecutrix, and after an acquittal, to summarily convict him upon tbe mere affidavit of tbe woman, and without giving him an opportunity to defend himself.

Tbe appeal was docketed at tbe first term succeeding tbe date of tbe trial before tbe justice, and was prosecuted in due time. We infer from tbe nature of tbe findings of fact, in connection with tbe motion of defendant to dismiss tbe appeal, tbat it was *280based upon tbe defectiveness of the return. It was not in proper form, as we have said, but enough' appeared therefrom to inform the court of the course of the |>roceedings before the justice and to enable it to proceed to the trial of the case. If it was incomplete, the motion should have been to require a better return from the justice. The judge was right in refusing the'motion to dismiss, but he erred in not having the case tried upon the general issue, or the denial by defendant of the paternity of the child as alleged by its mother.

The judgment will be vacated and a new trial is ordered.

New trial.