#### TIMOTHY WARD v. J. N. BELL.

An issue in bastardy is not a “ criminal prosecution,” or a “ plea of the State,’ ’ so as to subject a defaulting witness to the fine of eighty dollars, prescribed in the Rev. Code, chap. 31, sec. 60.

This was a scire facias against a defaulting witness, tried upon the plea of mol tiel record before Shepherd, J., at the last Fall Term of Pitt Superior Court.

The plaintiff, Ward, was charged, under the statute, as the father of a bastard child, in Pitt County Court, and made up an issue to try the paternity. The defendant, Bell, was summoned as a witness for him and failed to answer, whereupon he was fined eighty dollars, nisi, and upon this, the plaintiff sued out a scire facias. The only question that arose in the Court below, was as to the nature of proceedings in bastardy; whether it was a criminal suit or plea of the State, so as to subject a defaulting witness to the penalty of eighty dollars prescribed in such cases; or only a civil suit, wherein the witness is only liable to the lighter fine of forty dollars. Upon this, the Court was of opinion with the defendant, and from this ruling, the plaintiff appealed.

Winston, Jr., and Warren, for the plaintiff.

Shew and Fowle, for the defendant.

*80Battle, J.

The only question presented in this case isr whether the issue made up to- try the paternity of a bastard child, under the 4th section- of the 12th chapter of the Revised. Code, is a ‘•‘•criminal prosecution or plea of the State,” so-as to subject a witness summoned to attend the trial thereof, and failing to do so, to a forfeiture of $80, as prescribed in the 31st chapter, section 60, of the same Code ; or is it a “ civil suit,” so as to subject him to the lighter forfeiture of $40, as provided in the same chapter and section. The counsel for the plaintiff,, admits that such an- issue is not a criminal! prosecution, but contends that it is a pl'ea of the State, and not a “ civil suit,” or a “ civil case.” The counsel insists that there is a well-settled distinction between a criminal prosecution and a plea of the State ; for which, he has referred' us- to Hale’s Pleas of the Grown-, page 1st, of the Proemium;. Jacob’s Law Dictionary; Tit. Pleas of the Crown; 3 Blac. Com. 40. Without enquiring what the- alleged distinction is, and whether it is well-founded, we consider that it is settled in this State, by judicial authority, that an issue in bastardy, is in every respect, a civil suit, case, or proceeding.

The first ease in which a question arose as to the nature of proceedings in bastardy was, State v. Carson, 2 Dev. and Bat. Rep. 370, where it was said, “ that there is some difference of construction by the courts in cases of orders of j nstices in bastardy, and convictions of justices under penal statutes and for petty offenees. Orders of justices in bastardy cases are police regulations, having for their object, solely,, an indemnity of the county from money liabilities. They do not partake of the nature of criminal proceedings. Therefore, every intendment will be made to support the order of justices in bastardy; 3 T. Rep. 496 ; 3 East’s Rep. 58.” The question arose again in the State v. Pate, Busbee’s Rep. 244, in which the distinction between a criminal and a civil suit is pointed out, and it was decided that an issue in bastardy was a civil suit, so as to entitle the State to challenge four jurors, peremptorily, under the Revised Statutes, chap. 31, sec. 37, which gave to “ each party, in all civil suits,” such right. (See also Rev. *81Code, chap. 31, sec. 35.) In the case of the State v. Brown, 1 Jones’ Rep. 129, it was said that it was not the object of the statute upon the subject of bastardy, “ to punish the father of a bastard child for having begotten it, but the purpose was solely to prevent its support and maintenance from becoming a county charge. The proceedings, under the act, are not, therefore, criminal in their nature, but are mere police regulations, adopted for the purpose above indicated.” The last case upon this subject, which has come before the Court, is that of the State v. Thompson, 3 Jones’ Rep. 365. In that case, it was held that the recognizance for his appearance, entered into by a defendant and his sureties in a bastardy proceeding, was in the nature of a bail-bond in a civil action, and that the defendant had a right, after having been called out, to surrender himself in discharge of his bail, at any time, before a final judgment against him on the scire facias.

These cases show, clearly, that the proceedings against the reputed father of a bastard child, instituted under our statute, to subject him to its maintenance, are civil and not criminal in their nature, and that they have been so regarded, both in their direct and collateral consequences. If they are so considered, in relation to the sureties or bail for the appearance of the putative father, and to the jurors who may sit on his trial, we cannot imagine any good reason why they should be taken to be otherwise in relation to the witnesses whom he may have summoned to attend that trial.

Per Curiam,

Judgment affirmed..