20 S.E. 511 | N.C. | 1894
The judgment in the original bastardy proceeding was that the defendant pay a fine of ten dollars, an allowance to the mother of the bastard child, and costs, in accordance with the provisions of section 35 of The Code. Prior to the enactment of section 2, chapter 92, Laws 1879, which was brought forward in the section of The Code referred to, the law (Bat. Rev., ch. 9, sec. 4; Rev. Code, ch. 12, sec. 4) had provided *509
that on the finding of an issue of bastardy against him, the putative father should "stand charged with the maintenance thereof, as the court may order." In S. v. Cannady,
In a later case, S. v. Burton,
On the other hand, a creditor is "one to whom money is due" (Webster's Dictionary), and a mother to whom an allowance has already been declared due and payable is not taken out of the definition because the money must pass into her hands with a moral trust or obligation to apply it for the maintenance of the bastard. If she was a creditor and he was her debtor, then unquestionably she had the right to file an affidavit suggesting fraud, under section 2948 of The Code, in answer to his petition, and to demand that an issue of fraud should be framed for trial in the Superior Court, under section 2947. The subsequent section 2967, in which the putative father of a bastard, and "every person committed for fine and costs of any criminal prosecution," are declared entitled to be discharged from prison "upon complying with this chapter," was manifestly intended to be construed as permitting a defendant convicted in a criminal proceeding, or found to be the father of a bastard child (the proceeding in bastardy being, when that act was *510
passed, Laws 1868-69, ch. 162, sec. 26, one entered on the civil instead of the criminal side of the docket), to file a petition before the clerk designating the time when he wished to apply for discharge. The petitioner under that section, prior to the passage of the act of 1879, owed the duty to the State to pay fine, costs and allowance, but was not a debtor, and, therefore, was entitled, as a matter of right, to be discharged upon filing his petition and showing himself to be an insolvent, within the legal import of the term, from all obligation to pay the allowance, as well as fine and cost. When, however, the act of 1879 gave rise (734) to the relation of creditor and debtor between the convicted father and the mother of the bastard, the result was that, as to the fine and costs in the newly created criminal action, the petitioner could claim his discharge without question or interference on the part of any person not representing the State in an official capacity, but as to the allowance, which became a debt eo instanti, that the order of the court declared it due and payable to the mother, the defendant like any other debtor, might be compelled to meet a suggestion of fraud preliminary to the granting of an order releasing him. The defendant here was entitled to an order of discharge as to the fine and costs, with which the mother had no concern, but not as to the allowance due her, except in the way provided for all other debtors. Upon the filing of her affidavit an issue was raised — The Code, sec. 2949 — which should have been entered upon the "trial docket of the Superior Court" and allowed to "stand for trial as other causes." Obviously, the judge could not order his discharge as to the allowance to the mother when the issue was still pending, and the defendant's right to demand release as to that debt to her was dependent upon the finding of the jury thereon; nor, if the law recognized the mother of the bastard as a party, was he empowered, without her assent to his hearing the motion then and there, to make at chambers, and in a county other than that where the issue was awaiting trial, any order prejudicial to her rights or interest. Bynum v. Powe,
It will be conceded that the fine and imprisonment do not constitute a debt, and that it is competent for the Legislature to fix the limit of exemption when prisoners are held in default of payment of the (735) one or the other, either at $500, or a smaller sum. S. v. Davis,
Reversed.
Cited: S. v. Crook, post, 765; S. v. Wynne,
(737)