
    Swett, complainant, versus Stubbs.
    In a bastardy process, in order to authorize the admission of the complainant as a witness, it is not indispensable that she make her complaint before a magistrate prior to the birth of the child.
    On Exceptions from Nisi Prius, Wells, J. presiding.
    This was a process under the bastardy Act, transferred to this Court, the Judge of the District Court having been of counsel in the case.
    The complaint and accusation were made three days after the birth of the child.
    A witness testified that, while in travail, about one hour before the birth of the child, the complainant said the child was the respondent’s.
    The complainant was then offered as a witness. She was objected to as not competent, or if so, not admissible in the present stage of the case. She was, however, admitted.
    A verdict was found against the respondent, and be excepted.
   Wells, J., orally.

— The question is whether the complainant was properly admitted as a witness.

It is contended, not that the process is irregular, but that the complainant, in such a case, cannot be admitted to testify, unless, prior to the birth of the child, she make her complaint before the magistrate.

In R. S. chap. 13, sect. 8, there is some appearance of support for such an argument. It is there provided that, “ when the complainant, having made said accusation and been examined on oath, as before mentioned, and being put upon the discovery of the truth respecting the same accusation, at the time of her travail, shall thereupon accuse the same man with being the father of the child of which she is about to be delivered, and shall continue constant in such accusation, and shall prosecute, &c., she shall be a witness in the trial of the cause.”

Peters, for the respondent.

Woodman, for the complainant.

In marshaling the acts to be performed, in order to render the complainant competent to testify, the complaint is, in the order of language, laid as an anterior act. The statute does not itself expressly provide that it shall be an antecedent act.

The argument is based merely on the collocation of the words, which specify the steps necessary to be taken. But that section is to be construed in connection with the other parts of the statute.

In sect. 1, it is provided in what manner any woman, being pregnant with a child, which if born alive may be a bastard, or who “ has been delivered” of a bastard child, may proceed to complain before a magistrate.

Section 7 provides that, before trial, the complainant shall file a declaration. The statute points out what her declaration must contain, what facts are necessary to set forth particularly, and it nowhere provides that she shall allege that the accusation was made prior to the birth. She is not bound to prove any thing that it is not necessary to allege.

Exceptions overruled.  