delivered the opinion of the court.
This is a proceeding under the bastardy acts, in which questions of parties, of evidence, and the right of appeal are presented.
On the 28th of January, 1853, Mary Sharp, then a single woman, appeared before G. F. Neely, a justice of the peace for Bedford county, and made oath that the defеndant was the father of a bastard child, of which she had been delivered, on the 28th day of the preceding August. Upon this information, a warrant was issued and the defеndant brought before the said justice of the peace, and entered into recognizance to appear before the next term of the сounty court to answer the charge. He there appeared, and made an issue, by filing his affidavit, denying the accusation. The issue was tried by the court, and dеcided in his favor,
The main ground relied upon for a new trial, is, that an appeal could not be taken by the woman from the decision in the county court, but only by the State, if at all.
The legislates of 1851, which made so many changes in the law for the furtherance and promotion of justice by the removal of all formal and technical obstructions which lay in the way, without regard to the veneration due to their age and аntiquity, did not omit to provide for cases of bastardy. In chap. 18?, after providing for the enforcement of recognizances taken by justices, for the appearance of persons charged in the county court, in case of failure to attend, it is provided in case they do attend, and make an issue by denying the paternity of the child on oath, as prescribed by the-act of 1822, ch. 29, and the same is tided and decided by the county court, “that either party shall hаve the right to appeal to the circuit court, where the case shall be tried by a jury, as in other cases of issues of
But the controversy here Is, what is meant by “either party.” It is insisted that the mоther of the bastard is not the party referred to, but it is the State on one side, and the accused on the other. It is true, that the proceeding is in the name of the State, for the use, either expressly or impliedly of the mother, and upon her information, and she is in fact the actor. The public have an interest in the proceeding, so far as to have a bond given to indemnify the county against the child ever becoming a public charge, but' the main and principal intеrest is, that of the mother, under the act of 1822, which provides for an allowance to be made for her, to aid in the support of herself and child for three years, out of the property of him, who is often the wicked instrument of her ruin. She is mainly interested, and acts for her own benefit, having a right in her weakness and degradation, to the great name and strong arm of the State, in her demands for justice. Although the suit is in the name of the State, yet these contests are in their nature,
There is certainly nothing more common in our practice than suits in the name of the State for the use and benefit and under the control of others. Such is the case in all bonds taken to the State in penalties for the performance of duties in which individuals аre interested. It was held by this court, at Knoxville, that a prosecutor in a peace warrant, which is in the name of the State, and properly a Statе proceeding, if ■the defendant is improperly discharged by the justice of the peace before whom the case is to be tried, may have redrеss or re-examination by petition in the name
These analagous cases go strongly to sustain the principle on which we place the case under consideration. We have no doubt of its correctness in its present application.
The second objection is, to the effect given to the affidavit, by the charge of the court. He charged that the accusatory affidavit оf the woman, as well as that of the defendant, denying the charge, were both evidence to be weighed and considered by the jury. This is unquestionably correct. Until the late act to which reference has been made, the affidavit of the mother of the bastard was conclusive, even against the affidavit of the rеputed father, which served no other purpose but to entitle him to an issue, unless he could exonerate himself by proof. But now, his affidavit by the 3rd section of sаid act, is to be received as evidence for him on the trial of the issue. They are both interested in the result, but this can only go to their credit under these statutes.
The court gave the proper judgment on the verdict, which was, that the defendant should be regarded as the father of the bastard child, pay the cost, and enter into a recognizance to appear at the county court to abide by and perform such judgments and orders as that tribunal might render, acсording to the act of 1822.
The judgment will be affirmed, and the defendant re