The mother must charge the defendant in her travail, cand must be constant in her accusation. proceedings, that she did not thus charge the defendant, with being the father and that in fact she afterwards on oath charged another man, she has not brought herself within the statute, and the proceedings will be erroneous: nor will the reason of this conduct, as explained by herself on oath, cure the error. Ibid. tent witness, though interested. By what circumstances her credit must be forti fied, to render her an admissible witness. 2. The mother is to be admitted as a competent witness, although interested: but as a pre-requisite to her The mother a compe- admission, her credit must be fortified by her having charged the defendant in her travail, which is a time of distress and danger, when it may be supposed that she would speak the truth; she must have continued constant in her accusation, or at least it must not appear that she has been inconstant; and she must have been examined on oath before a justice on the several circumstances of her complaint necessary for the discovery of the truth. Although directly interested, yet if her credibility be supported by these facts, she may be sworn as a witness; but the evidence, introduced to entitle her to be sworn, may notwithstanding be impeached by the defendant before the jury. Ibid. 444. To what facts the 3. "Although the mother be made a competent witness by the statute, from necessity, yet her testimony ought mother cannot testify. not to be given to facts equally within the knowledge of other persons, who are disinterested. Hence, as to the examination before the justice, the justice's record is the best evidence. 4. In the complaint before the common pleas, it ought to be averred, not only that the mother has been delivered of a bastard child, of which the defendant is the father, but that she had accused him in the time of her travail, had been examined on oath before a justice, and had continued constant in her accusation. Upon a regular complaint, in this form, there can arise no difficulty as to the trial. 5. In a certiorari on certain proceedings upon the com, plaint of one Lydia Clark against one Joseph Cundell, as the putative father of a bastard child, of which she had the defendant is the been delivered; the record did not contain any adjudi- An adjudication that cation that Cundell was the putative father of the child. putative father of the child, is necessary, as the foundation for an It was decided that such adjudication was necessary, as order of maintenance. the only foundation for the subsequent order of maintenance for the statute expressly provides, that the party charged be adjudged the putative father, unless the jury find him not guilty. The necessity of this adjudication, as the foundation of an order for maintenance, results also from the principles of the common law. The proceedings were therefore quashed. IV. Of the rights and incapacities of bastards. 1. By the last statute of settlements, 1793, c. 34, s. 2, it is provided, that illegitimate children shall have and follow the settlement of their mother, at the time of their birth, if any she shall then have within the commonwealth; but neither legitimate nor illegitimate children shall gain a settlement by birth, in the places where they may be born, if neither of their parents shall then have any settlement there. 2. The incapacity of a bastard consists principally in 1 Bl. Com. 459. this, that he can inherit nothing; being looked upon as the son of nobody, and sometimes called filius nullius, sometimes filius populi. TITLE XXVI. 1 Bac. Abr. 325. 1804, e. 105, s. 5. In what cases excep BILL OF EXCEPTIONS. of a A BILL of exceptions is a proceeding which was un- If the exceptions be to some decision of a court of common pleas, the bill must be tendered to the chief justice for his allowance and signature thereto; if the exceptions be to some supposed error of the supreme judicial court, when holden by a single judge, the allowance and signature of such judge will, in such case, be necessary. With regard to exceptions alleged to the judgment of a justice of the supreme judicial court, at nisi prius, it tions may be alleged. is provided by statute, that whenever the said court shall be holden by any one of the justices thereof, it shall be lawful for any party, thinking himself aggrieved by any opinion, direction, or judgment of the said justice, in any action or process of a civil or criminal nature, to allege exceptions to the same, at the term of said court when true, to be allowed such opinion, direction or judgment shall be given or pronounced; and such exceptions, being reduced to Such exceptions, if writing, in a summary mode, and presented to the court, and signed by the judge. before the adjournment thereof without day, and found conformable to the truth of the case, shall be allowed and signed by the justice holding said court; and thereupon In such case, the ac all such action or process, in or upon which judgment shall not have been rendered at the time of allowing such exceptions, shall be continued to the next term of the said court, to be holden in the same county, (by any three or more of said justices) subject to the provisions hereinafter contained. tion to be continued, cess to be continued are filed to the final judgment, and exe cution to be stayed, No trial to be delayed by filing exceptions to a judgment on a dilatory plea, etc. And such action or process, wherein exceptions shall be The action or proalleged to the final judgment of the court thereon, shall wherein exceptions likewise be continued in the same manner, and execution thereon shall be stayed, but without prejudice to apy attachment made on the original writ in any civil action. Provided, however, that no trial by jury shall be delay ed or prevented, by the making or filing of exceptions to the opinion or judgment of the court, upon any dilatory plea, or upon any question of law arising during the trial; and whenever it shall appear to the court, that the exceptions made in or after the trial of any cause, are frivolous, immaterial, or intended for delay, judgment ed. may be entered, and execution awarded or stayed, on such conditions as the court may deem reasonable, notwithstanding the allowance of the proceedings; and the courts to which actions may be continued, upon exceptions filed and allowed, shall have cognizance thereof, and shall do therein what to law and justice shall appertain. In regard to the above provisions, it has been decided, 1. That a motion for a new trial, upon exceptions for the misdirection of the judge, pursuant to the statute, cannot be sustained, if the party making the exceptions be entitled to a review of the action; for it is not within the true intent of the statute, that the court should spend Where the exceptions are frivolous, judgment may be entered and execution award Mixer v. Dalrymple. 2 Mas. Rep. 116. Motion for a new trial not sustainable, to a review of the action. time in hearing and determining motions grounded on if the party has a right these exceptions, and, in the mean time to delay judg. ment, when the party filing the exceptions had a right, by a writ of review, to have a new trial, if the motion should be refused; the design of the legislature was to provide a remedy in a case where none existed, and not in a case where the party aggrieved had a remedy in the ordinary course of law. Haynes Ux. v. 3 Mas. Rep. 208. S. C. By the court, p. 209, 210. An order for amend ing a declaration is exceptions, pursuant to the statute. 2. An order for amending a declaration is not a cause for filing exceptions pursuant to the statute: for, taking the whole of the fifth section together, it is manifest, that exceptions may be made for causes arising during the trial, or from the rendition of judgment; and not for not a cause for filing causes arising from any order of the court made in a cause preparatory for trial. An order for amending a declaration, although it may happen to be moved for during the trial, yet, as it may be made at any time before the trial, is not a cause for filing exceptions. It is like a rule for bringing money into court, or to plead double. And if the rules for granting amendments are made absolutely against law, and the adverse party is entitled to relief, it must be obtained by writ of error. Brown v. Bull, 3. If a single judge receives and files exceptions to his opinion, and thereupon the action is continued to the next term, and the same judge, then deeming the exceptions frivolous, enters judgment and awards execution, the court will not set aside the judgment upon motion, but will put the party to his writ of error; for the error, if it is one, is matter of record. |