
    *Henry Sheffer, junior, plaintiff in error, against Rempublicam.
    On a conviction of bastardy, the uniform practice has been to make an allowance for lying-in expences, and a gross sum for the support of the child from its birth to the time of judgment. And where the person who has borne these expences is dead, the money may well be awarded to his representatives.
    A writ of error or certiorari will not remove an indictment without a special al-locatur, or the consent of the attorney general.
    Ti-ie plaintiff in error was convicted on the 17th April 1800, in the Court of Quarter Sessions of Northampton county, of having begot a bastard child on the body of Mary Sterner, on the 10th April 1785.
    The court thereupon rendered judgment, that the said Henry should pay a fine of iol. and give security himself in 200I. and two good sureties in iool. each, that the child shall not become any expence to the township of Lower Saucon, where it was born.
    It then proceeded as follows : — “ And whereas the said Mary “ Sterner has deceased, since the birth of the child, and the ex- “ pence accruing by reason of her lying-in, and also in the main- “ tenance and support of the child for seven years, has been paid “ and borne by George Sterner, father of the said Mary, which “ said George is also since deceased, it is further ordered and adjudged, by the court here, that the said Henry pay to Casimer “ Hempt, surviving executor of the will of the said George Ster “ ner 5I. for the lying-in expences of the said Mary Sterner, and “also 45I. for the support of the child for seven years from the “ 1st June 1786, until its arrival at seven years of age, pay the “costs of prosecution, and stand committed until this judgment “be complied with.”
    A writ of error being brought hereupon, without any special allocatur, or consent of the attorney general, the following special erorrs were assigned.
    1. That it is adjudged, that the said Henry pay to Casimer Hempt, surviving executor of the will of George Sterner deceased, the sum of 5I. for the lying-in expences of the said Mary Sterner, and also the further sum of 45I. for the support of the said child for seven years from the 1st June 1786, until its arrival at the age of seven years; whereas the only sentence or punishment to be inflicted on the reputed father of a bastard child, upon conviction, by the laws of this commonwealth, is a fine of iol. to the state, and security to the county, town or place, where such child is born, to perform such order for the maintenance of such child, as the justices of the peace in their sessions shall direct and appoint.
    2. That the said judgment should have awarded a weekly sum or allowance to be paid for the maintenance of the said child, and not a gross sum.
    3. That the order for the maintenance of the said child ought *not to have retrospect, but should take place only from p the time of conviction. L 4
    4. That if the said George Sterner or his executors have any legal claim upon the said Henry Sheffer, for money he is supposed to have expended for the maintenance of the child named in the indictment, the claim should have been sued and prosecuted in the proper action, by the said George or his executors, in which case the said Henry would have been allowed every legal defence and set-off against such demand, which is denied him by this summary mode of decision.
    5. That by the said judgment, a debt is declared to be due from the said Henry Sheffer to the said George Sterner or his executor, and judgment awarded therefor, whereas a civil claim can in no case be covered or inforced under a criminal sentence, unless by law specially provided.
    6. That the jury never decided on the claim now set up for the executor of the said George Sterner, nor had it in charge, and therefore the sentence of the court is given on matter not found by the jury.
    7. That the debt from the said Henry Sheffer to the said George Sterner, or his executor, if it really exists, is altogether a distinct thing from the offence charged in the indictment, and therefore the defendant had no opportunity to defend himself against it, or to shew that in fact the child was not maintained by the said George Sterner, or was maintained by the said Henry, during the seven years mentioned in the judgment.
    8. That in no case of a suit between any two persons, or of a prosecution between the commonwealth and a citizen, can the court render a judgment in favour of a third person, not a party to the suit or prosecution.
    9. That there is nothing in the record, pleadings or proceedings, to shew that the said Casimer Hempt is truly and lawfully the executor of the said George Sterner, nor had the said Henry Sheffer any opportunity to controvert or inquire into the fact, and he may therefore, under this judgment,’ pay the money to a person not authorized to receive it.
    Mr. Hopkinson, for the plaintiff in error,
    proceeded to insist that the judgment was erroneous, because it included lying-in expences, awarded a sum in gross, and had a retrospective view; but he was stopped by the court, who said it had been the uniform practice under the law to make an allowance for lying-in expences, and to direct the payment of a gross sum, for such time as had elapsed from the birth of the child until the day of rendering judgment, and a future weekly allowance until it * -> *became seven years old. Were it otherwise, the father 4 J of a bastard child flying into another state, would escape the payment of the sums necessarily expended for the maintenance of the child during its minority. And on this head, Mr. M'Kcan, attorney general, cited 2 Show. 258. An order of bastardy was moved to be quashed, because the gross sum of 40s. was ordered, besides the weekly payments; but the court held it well enough, and that it has been ruled often and often, and the reputed father ought to pay the extraordinary charges.
    Mr. Hopkinson then confined his objections to two grounds; 1st, That it did not appear on the proceedings who maintained the child, or 2dly, that Casimer Hempt was the executor of George Sterner, except by the sentence itself; he may not be the true executor, and yet Henry Sheffer had it not in his power to controvert it.
    The very right must appear to the court in the body of the record : an executor or administrator must produce his probate or administration. Hob. 233. A plaintiff executor must plead the probate of a will with a proferí. Cro. Jac. 299.
    The attorney general insisted, that the writ of error improvidé emanavit: a certiorari or writ of error must be specially allowed by the Supreme Court, or one of the justices thereof, or sued out with the consent of the attorney general, before it shall be available to remove any indictment, or proceedings thereon, by the act of 3d April 1791. 3 Dali. St. Laws, 94. But if the indictment was properly before the court, the two exceptions have no weight. If the plaintiff in error had paid any monies for the support of the child, he had it in his power and would have shewn such payments to the sessions below. They were the legal judges of the fact, at whose expence the child had been brought up, and a payment under their order would completely have indemnified Sheffer. The mother of the bastard being dead, and her father also, who appeared to the sessions to have been at the expence of her lying-in and maintaining the child, they were necessarily obliged to direct the payment of the money to the representatives of George Sterner, unless the defendant below could be legally exonerated of those sums by their eventual deaths, and it must be intended that they made the necessary examination into all facts on which their sentence was founded.
    Cited in 18 Pa. 265, cited in support of the proposition that the sentence to pay lying-in expenses, &c., should specify the person to whom they are to be paid; but that omitting it is not a fatal defect.
   By the Coukt.

The writ of error has issued improperly, without a special allocatur, or the consent of the attorney general. But admitting that the proceedings were regularly before *us, could we say that the judgment was erroneous ? Under the circumstances of the case, could any other judgment [*42 with propriety have been rendered ? Are we not bound to believe that the court below has correctly determined on the facts, by whom the child was supported, and if such person is dead, who are his proper representatives ? The payment of the sums advanced is equally a necessary consequence of the conviction of bastardy, as the making restitution of stolen goods to the owner, on a conviction of larceny. If in the latter case, the owner died before conviction, the goods would be awarded by the court to his representatives. A common instance will suffice to shew, that money may be awarded to persons not named in the indictment or proceedings. Put the case of Overseers of the Poor advancing money for lying-in expences and support of a bastard child, and that those overseers had been removed from office before judgment had on the indictment, those monies would be directed to be repaid to their successors.

On the whole, we see no error in the judgment, and therefore it must be affirmed.  