
    SIMMONS vs. BULL.
    1. In the absence of statutory regulations the father is under no legal obligation to support his illegitimate child; the statute prescribes the only legal mode by 'which this support can be obtained.
    2. A bill filed by an infant bastard by its uext friend, alleging that the defendant was its father, and that he, to avoid the statutory liability for its support, had removed beyond the jurisdiction of the State, leaving property, out of which the bill prays that provision may be made for complainant’s support, is without equity.
    Error to the Chancery Court of St. Clair.
    Heard before the Hon. E. D. TowNes.
    This bill was filed by the plaintiff in ■ error, by his next friend, against the defendant. It alleges, that the complainant, an infant, is a bastard, begotten by the defendant, and that he had removed beyond the limits of this State, in order to avoid the statutory liability for its support, leaving property of value in this State, out of which the bill prays that provision may be made for the complainant’s support. The Chancellor dismissed the bill for want of equity, and his decree is now assigned for error.
    Bice & Morgak, for plaintiff in error:
    The proceeding in bastardy, authorized by our statute, is not strictly of a criminal character. The bond in such case assimilates itself, in its legal effect, quite as much to a bail bond in a civil case, as to a recognizance in a State case. 8 Metcalf 210; 13 Pick. 289; 26 Maine 382; 16 Ala. 600; ib. 804. Tbe appearance of tbe defendant was not indispensable, to authorize tbe County Court to determine tbe question of filiation. He could not at pleasure arrest tbe course of tbe court. 4 Ala. 328. Tbe act of 1811 bas been so far modified by the act of 1816, as only to make it necessary to submit tbe case to a jury when tbe reputed father demands it. 4 Ala. 331; lo ib. 556.
    Tbe statute law of Alabama makes it tbe duty of tbe court, if tbe issue is found against tbe reputed father, to condemn him to pay not exceeding $50 a year for ten years, “towards tbe maintenance and education of such child,” * * * “so that tbe same be not paid to tbe mother of such child.” Clay’s Dig. 134, § 4. A plea of guilty, or a confession of tbe act by tbe reputed father, is equivalent to finding tbe issue against him. Pruitt v. Judge, 16 Ala. 707. A decree pro confesso against a non-resident defendant is equivalent to a confession of tbe matter as charged. Arnold v. Sheppard, 6 Ala. 299. Even if it be admitted that tbe mother may make a compromise before tbe issue is tried, that fact would only prove that the proceeding is not a criminal, but only a civil suit.
    Tbe right of the child to a sum of money “for maintenance and education” is given by statute, subject only to be compromised before judgment by tbe mother, who is expected to support and maintain tbe child- Eobinson v. Crenshaw, 2 S. & P. 276. But if there was any such compromise, it must be set up as a defence. The court cannot presume, as against tbe child, that its mother bas compromised away its rights, when tbe defendant does not say so.
    Can tbe defendant, by his flight alone, defeat tbe operation of tbe statute, and tbe right thereby given to tbe child? Is tbe statute to be confined only to that class of persons who are willing to remain here, to answer tbe violated law ? Shall tbe absconding offender gain tbe mastery over tbe law, while bis property is here in tbe power of a court of chancery ? Shall no order or decree be made to subject this property to-“tbe maintenance and education” of tbe child, when all tbe defendant’s rights will be protected by tbe usual bond in favor of non-resident defendants? Clay’s Dig. 353 § 45; 9 Yer. 134. Whenever the law gives a right to any propertjr, or to its enjoyment in future, and all remedy at law is destroyed by the voluntary act of a wrong-doer; and when there will be a failure of justice, and irreparable injury, without the aid of a court of equity, that court will exercise its transcendant powers. Eeavis’s Dig. 247- §§ 153 et seq.
    
    Where a wife had filed a bill for alimony, &c., against her husband, and it appeared that he had abandoned her without any support, and threatened to leave the State, the court, on the petition of the wife, granted a writ of ne exeat against him. 1 Johns. Chan. E. 264. The Court of Chancery has power to aid a judgment and execution creditor, to discover and reach the property of his debtor, whenever it has been put out of the reach of an execution at law. 20 Johns. 554; 5 Johns. Chan. E. 280; 4 ib. 687. A complainant who, by accident, is prevented from obtaining relief at law where he has it complete, may be relieved in chancery. 2 Hen. & Mun. 10. As to what is meant by “ accident” in a court of chance^, see Story’s Eq. Juris. § 78; Jeremy’s Equity, B. 3, Part 2, 358.
    WALKER & MARTIN, contra:
    
    The father is under no legal obligation, at common law, to maintain his illegitimate offspring. His liability is only of statutory creation, which prescribes the remedy to be pursued; and none other can be. 16 En. Com. Law E. 302; 19 Wend. 405; Kent’s Com. vol. 2, 215. The statutory remedy is strictly penal, and must be literally pursued. 22 Yer. 543.
    The obligation of the father to maintain his legitimate children results from his right to their custody and services; while he can exercise no authority or control over his illegitimate children. Kent’s Com. 2 vol. 215; 8 N. Hamp. 417 ; 6 Ala. 501; 17 ib. 14.
   CHILTON, J.

— This was a bill filed by an infant by its next friend, charging that it was a bastard, begotten by the defendant, who, to avoid the statutory liability for its support, has removed beyond the jurisdiction of this State, leaving property belonging to him in the county of St. Clair. The bill prays that publication may be made, and tlqit provision may be made for the support of the infant ont of tbe property of the defendant. The Chancellor dismissed the bill for want of equity.

At the common law, a bastard was said to be filius nullius. His natural father may die 'never so rich, and he may be upon the parish, yet he took none of his estate, unless left to him by will. In the absence of a statute, the father is under no legal obligation to support him; and the statute prescribes the mode, and the only mode, by which this support can be obtained. The case before us shows the necessity for further legislation on the subject. Our duty, however, is plain; as we have no power to make, but only to administer the law, and there is no provision of either the common or statute law authorizing this proceeding, the Chancellor properly dismissed the bill, and his decree must consequently be affirmed. See 16 Eng. Com. Law R. 302 ; 19 Wend. 405; 2 Kent 215.

Decree accordingly.  