Opinion
(December Term, 1859.)
Proceedings in bastardy cannot be instituted against the personal representative of the putative father in order to subject his estate to the maintenance of the child.
THIS was a proceeding in bastardy, before Dick, J., at the last Fall Term of ORANGE.
No counsel for the plaintiff.
S. F. Phillips for defendants.
The action was commenced in the county court upon notice to the defendants, who are the administrators of the putative father, to show cause why they should not be charged with the maintenance of a bastard child. It was proved that at the time of the examination of the mother, defendants' intestate, the person charged with being the father was dead. This cause being shown, the court ordered the defendants, as administrators of B.L. Durham, deceased, to be charged with the maintenance of the child. From this order the defendants appealed.
The proceedings against the putative father of a bastard child, for the purpose of compelling him to maintain such a child, are founded altogether upon our statute law, and must in every respect be regulated by it. This law is now contained in the first seven sections of chapter 12, Revised Code. The proceedings which it authorizes are not in the nature of a criminal prosecution, but are police regulations, having for their object indemnity for the county against the burden of maintaining the bastard child. They do not lose their character of being civil proceedings, even when an issue is made up, under section 4 of the act to try the question of the paternity of the child. See Ward v. Bell, ante, 79, where all the prior cases on the subject are referred to. Being, then, civil, in contradistinction to criminal proceedings, it is contended that they may be commenced and prosecuted (101) against the personal representative of the reputed father after his death; and it is said that the first chapter of the Revised Code authorizes it in the following words of the first section: "No action, suit, bill in equity, or information in the nature of a bill in equity, or other proceedings of whatever nature, brought to recover or obtain money, property or damages, or to have relief of any kind whatever, whether the same be at law or in equity, except suits for penalties and for damages merely vindictive, shall abate by reason of the death of either party," etc. It is manifest that proceedings in bastardy cannot properly be called an action, suit, or other proceeding to recover or obtain money, property, or damages, but are, as we have said before, only police regulations, adopted for the purpose of relieving the public from the support of bastard children, by imposing it upon the putative fathers of such children. Viewed in that light, they cannot come within the rule laid down in Butner v. Keehln, 51 N.C. 60, where it is held that wherever an action could have been revived against an executor or administrator, it may be originally commenced against him. If, then, the proceedings in bastardy against the personal representatives of the reputed father, can not be sustained under the first chapter of the Revised Code, it is very certain they can derive no aid from chapter 12 of that Code. There every provision is predicated upon the supposition that the reputed father himself is alone the person against whom the proceedings are to be had. He is to be taken, and he is to enter into recognizance for his appearance upon pain, in case of failure, of being committed to prison. It is upon him that the order of filiation is to be made, and he is required to give a bond for the indemnity of the county. No execution can be issued against his property until he has failed to pay the necessary maintenance ordered by the court for the child, and notice has been served upon him ten days before the county court from which such final process is to issue. In all this not a word is said about the executor or administrator of the reputed father; and the mode of proceeding prescribed by the act seems to be entirely (102) inapplicable to any person but the reputed father himself, hence, we conclude that no proceedings can be properly constituted in the county court unless the reputed father himself has entered into a recognizance for his appearance there, or has been taken upon a capias or attachment.
The order made in the Superior Court must, therefore, be reversed and the proceedings dismissed.
PER CURIAM. Reversed.