
    [Chambersburg,
    October 17, 1827.]
    EBY against BURKHOLDER.
    IN ERROR,
    An action does not lie upon the sentence of the Court of Quarter Sessions on a conviction of fornication and bastardy, ordering a weekly allowance for the maintenance of the bastard child: the only means of enforcing the sentence is by a commitment in execution.
    On a writ of error to the Court of Common Pleas of Franklin county, the case appeared to be an action of debt brought by Matty Burkholder, the plaintiff below and defendant in .error, against Benjamin Eby, the plaintiff in error and defendant below, in which a verdict and judgment were rendered in favour of the plaintiff below for one hundred and thirty-seven dollars and twenty-seven cents.
    At Jlpril sessions, 1820, the defendant, Benjamin Eby, was indicted and convicted in the Court of Quarter Sessions of Franklin county, for fornication and begetting a bastard child on the body of the plaintiff,. Matty Burkholder, and the court passed the following sentence:—
    “Whereupon the court do adjudge the defendant to pay .a fine to the commonwealth of one dollar, to pay twenty dollars to Matty Burkholder for lying-in expenses, to pay nine dollars, which will be one dollar per weék until to-morrow, from the birth of the child; from that time to pay at the rate of one dollar per week until the child arrives at seven years of age; to be bound himself in one thousand dollars and one good security in one thousand dollars to indemnify thq county; money to be paid quarterly — pay the costs of prosecution, and stand committed until the sentence be complied with.”
    The defendant excepted to the opinion of the court, admitting in evidence the record of this conviction and sentence: and, also, requested the court to charge the jury,—
    1. That the present action of debt, having been brought on a sentence and judgment of the Court of General Quarter Sessions of the peace of Franklin county, on an indictment against Benjamin Eby for fornication and bastardy with Matty Burkholder, the plaintiff, cannot be supported.
    2. That the said indictment, and the trial, sentence, judgment and all other the proceedings thereon, being in the name of the commonwealth, this action cannot be sustained.
    3. That the sentence and judgment of the court is that Benjamin Eby pay so much for the support of a bastard child, and not generally so much to Matty Burkholder, and therefore the present action does not lie.
    4. That thé sentences and judgments of the Court of Quarter Sessions are enforced by imprisonment of the defendant until complied with; or by his entering into recognizances conditioned for their performance, which may be suéd, and that no other modes of enforcing obedience are known to the law; and that, consequently, this action cannot be supported.
    On the above points the court charged the jury as follows — that it is the opinion of the majority of the court that on the proceedings of the Court of Quarter Sessions, sentence, &c., as above, this action can legally be sustained.
    
      Crawford, for the plaintiff in error.
    The mode .of enforcing obedience is by imprisonment. In criminal cases the court are bound, to pursue the mode pointed out by the act of assembly. By the act of 1705, the security is not to be given to the mother. Com. Dig. 250, says not paying is a contempt. She had no vested interest. The overseers were to pay the person who should take care of the child. The defendant, in a case of this kind, may be discharged as an insolvent only by a special act which shows the sentence does not create a debt. He cited 2 Dall. 123, that to maintain an action it must be a civil judgment between the parties.
    
      Dunlop, contra,
    
    cited 1 Chitt. 102. 3 Com. Dig. 363. Debt, A. 2. Bull. N. P. 163.
   The opinion of the court was delivered by

Gibson, C. J.

All the exceptions are resolvable into one — that debt does, not lie on the sentence of the Court of Quarter Sessions. It is said this action lies for money due only on a contract express or implied. It clearly lies on a judgment in *ati action, because such a judgment binds the right arid establishes the claim of the party to the thing recovered; from which, it may be said, the law implies a contract to pay. But whether debt lies on a decree in equity, which acts not on the right but the person of the suitor, may still be thought doubtful in those states where there is a Court of Chancery; as it would in general seem to be the regular course to carry, a foreign decree into execution by a chancellor, who would, if it were needful, inquire into the demand on original grounds. In this state, however, an action must be sustained to prevent the failure of justice. In Evans v. Tatem, (9 Serg. & Rawle, 252,) we refused to enter into the merits; but I confess it weighed much with me, that the decree so far partook of the nature of a judgment, that in the state where it was pronounced, it might have been enforced by an execution. But the sentence of a Court of Quarter Sessions is quite another thing. In establishing the right of the party to the thing recovered, a judgment in an action operates as an estoppel, and, consequently, only between the parties. What was the judgment here? The court sentenced the defendant to pay a fine of one dollar to the commonwealth,, and made an order that he should pay the mother twenty dollars for lying-in expenses, and a dollar a week for the maintenance of the' child from its birth until it should be seven years old, and give security in one thousand dollars to indemnify the county. The 8th section of the act of 1705, directs, “That every person being legally convicted to be the reputed father of a bastard child, shall give security to the court, town or place where such child was born, to perform such order for the_ maintenance of such child as the justices of the peace in their .sessions shall direct or appoint.” This is the onlyaet which authorizes an order for the maintenance of the bastard; and it will be perceived that the mother is .not necessarily to be a party. Here the court thought proper to appoint her as the hand to receive; but'any one else might just as well have been put in her place. But the order was not merely to pay a sum presently due, but also a weekly allowance as it should be earned thereafter; for the mother would undoubtedly be entitled only for the time during which she actually maintained the child; consequently, in addition to the order, evidence of actual maintenance would be necessary to make out her case. But in an action on a judgment the record is always sufficient in the first instance; and, beside, a judgment can be, the subject of only one action, whereas to do complete justice in a case like the present, would require a separate remedy for the1 maintenance of each week as the price of it should be earned. In a conviction of larceny, where restoration of the-thing stolen is a part of the sentence, the legislarme has thought proper to provide a particular remedy for the owner by execution against the convict’s property; which would seem to indicate that such a remedy was deemed necessary to prevent the failure of justice. In the absence of an analogous provision, I am of opinion that the plaintiff had no other means of en~ forcing the order than the common law means of enforcing every sentence — a commitment in execution.

Huston, J., dissented.

Judgment reversed.  