On the 20th of November, 1854, Rebecca Cate swore the child, of which she was pregnant, to Joseph L. Turner, who made up an issue as to the child's paternity, and entered into bond, with sureties for his appearance at May term following. The cause was continued at that term, and Turner gave bond again for his appearance at August term following, with the defendants, Thompson and Wright, for his sureties. He appeared *Page 366 at August term, when the issue was tried, and the verdict of the jury was against him. He was not prayed into custody; but on the last day of that term was called and failed to appear, when judgment nisi was entered against him and his sureties. The sci. fa. was brought to enforce this judgment. Subsequently, to wit, at November term, 1855, the defendant Turner surrendered himself, in open Court, in discharge of his bail, and the same was entered to record by the Court, and the defendant not then being prayed into custody by the plaintiff's counsel, departed from the Court. These facts were agreed by counsel, and the case signed by them. The question was, whether this surrender discharged the sureties as bail in a civil suit, or were they liable as on a forfeited recognizance in a State case.
Upon consideration of the case agreed, the Court gave judgment in favor of the State, from which the defendant Thompson appealed. The case agreed states, that Joseph L. Turner, was charged on oath by Rebecca Cate, with being the father of a bastard child, with which she was then pregnant; and upon a warrant, duly issued, he entered into the usual recognizance to appear at the February term, 1855, of Orange County Court. He appeared, and at his instance, an issue was made up to try the question of paternity. The issue was not tried at that term, but was continued to May term of the Court following, and Turner entered into a recognizance, with James H. Cristie and George Wright, as his sureties, for his appearance at May term following. At May term, Turner appeared, and the trial of the issue being again continued, he was recognized in the sum of $200, with George Wright and William H. Thompson, the defendant, as his sureties, to appear on Thursday of August term succeeding. Turner appeared on the Thursday of August term, when the issue was *Page 367 submitted to a jury, and found against him. He was not prayed into custody; but on Saturday of the term, he was called, and failing to appear, judgment nisi for the amount of his recognizance, was rendered against him and his sureties. The sci. fa. in this case, was issued to enforce the judgment. It was returnable to November term, next ensuing, of said Court. Turner made his appearance and surrendered himself, in open Court, in discharge of his bail.
The only question submitted to this Court, is as to the effect of the surrender of Turner.
The mistake here seems to have been, in considering proceedings under the bastardy Act as criminal proceedings, whereas, they are civil in their nature. The true test of the difference between a criminal suit at the instance of the State, and a civil suit carried on in the name of the State, is whether the act complained of, will support an indictment. If it will, the proceeding must be by indictment; if it will not, but an action is required, it is a civil suit. State v. Pate, Busb. 244.
Being a civil suit, and his sureties being, in effect, his bail Turner had a right, at any time before the judgment, to surrender himself in discharge of his sureties. In the Superior Court, judgment was rendered against Joseph L. Turner, Geo. Wright and William H. Thompson. The latter alone appealed to this Court.
PER CURIAM. Judgment appealed from reversed, and judgment entered for the defendant, according to the case agreed.