
    * James Drowne, Plaintiff in Error, versus Lydia Stimpson.
    Upon a complaint against one as the father of a bastard child, it must appear that the mother charged him in the time of her travail, and continued constant in her accusation; and these facts must be proved by other testimony than her own, before she is to be received as a witness. Distinction between a writ of certiorari and a writ of error.
    This was a writ of error brought upon a judgment of the Court of Common Pleas for this county, rendered upon the following complaint, viz.: —
    “ York, ss., April Term, 1805.
    “ Be it remembered that, on the 4th Monday of April, A. D. 1805, personally came before the justices of the Court of Common Pleas, begun and held at York, in and for the county of York, Lydia Stimpson, of Lyman, in said county, single woman, and complains against James Drowne, of said Lyman, husbandman, and informs the Court that she, the said Lydia, on the 28th day of July past, was delivered of a bastard child ; and that the said James is the father of said child; and the said child is chargeable to the said town of Lyman. She therefore prays that the said James may be adjudged the father of said child, and that he may be compelled to comply with the provision of the statute in such cases made and provided.”
    To this complaint the respondent pleaded not guilty, and tendered an issue to the country, which was joined by the complainant, and a verdict thereupon found against the respondent. A bill of exceptions was tendered, allowed-, and signed and sealed, by the first justice of the Court of Common Pleas, which makes a part of the record, and from which it appears that the complainant did not charge the respondent with being the father of her child in the time of her travail, but declared that she did not know who was the father; and that, a short time after her delivery, she made oath before a justice of the peace that Droione was not the father, but another man These facts were not denied by the complainant who was admitted a witness upon the trial; but she endeavored to explain them by swearing in court that this conduct of hers arose from the menaces of Drowne, who had threatened to kill her if she charged him as the father. It was insisted by the ref * 442 ] spondent that, under * these circumstances, the complainant ought not to be sworn as a witness, but she was admitted, and the court directed the jury to find a verdict for the complainant if they believed her testimony.
    Several errors were assigned, of which the foregoing is the substance. The defendant pleaded in nullo est erratum. The cause was argued at the last May term in this county.
    The counsel for the plaintiff in error
    being stopped by the Court, the counsel on the other side contended that.the statute  in this case does not absolutely require that the woman should be put upon the discovery of the truth in the time of her travail; the expression is “ being put,” &c. If she is not thus put on the discovery of the truth, she is not thereby disqualified as a witness. If she is so put upon her examination, and does not accuse any one, it is conceded that she could not be afterwards received. That she did say during her travail, wfithout examination, that she did not know who the father of the child was, might be an objection to her credibility, of which the jury were the judges, but was no legal objection to her competency. By the statute, she cannot be a witness on the trial until after her examination and accusation before a justice of the peace ; but there is no such provision respecting her accusation in the time of her travail. Indeed, such a provision could not, in all cases, be complied with ; the woman may be delivered alone, or her distress and danger may be so extreme as that those present will have their feelings too much engaged to recollect the duty which belongs to them in this regard, and it would even savor of inhumanity to put questions to her on such a subject.
    
      (Parsons, C. J. At the common law she is an incompetent wit ness. The statute has taken off this objection only under certain preexisting facts; and, to be received as a witness, must she not first show that those facts have taken place ?)
    It appears, by her own testimony, that she was put upon the discovery of the truth during her travail, and the reason also appears why she did not then accuse the plaintiff in error, a [*443] reason * which shows that he ought not to be allowed to take advantage of her omission. If this objection goes only to her credibility, then her testimony, with all the other evidence in the case, was properly submitted to the jury, who had an unquestionable right to believe her, and to reject the testimony of the other witnesses.
    The Chief Justice observed that different practices had obtained in different counties; and the process was continued for advisement.
    
      
       Passed March 15, 1786.
    
   And now, at this term, the opinion of the Court was delivered by

Parsons, C. J.

The complaint, in the case which is brought before the Court by this writ of error, is given by the statute passed March 16, 1786, entitled, “ An Act for the' punishment of fornication, and for the maintenance of bastard children,” and, to support the proceedings, the statute must be substantially pursued. To entitle the complainant to an adjudication, the statute requires that she charge the defendant with being the father in her travail, and that she afterwards continue constant in her accusation, It appears from the proceedings that she did not thus charge the defendant, and that, in fact, she afterwards, on oath, charged another man. She has not, therefore, brought herself within the statute; and the reason of this conduct, as explained by herself on oath, will not cure these errors in the proceedings. She is to be admitted as a competent witness, although interested ; but, as a prerequisite to her 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, — as, in an action upon [ * 444 ] a promissory note, the signature to which is denied, before the Court will suffer it to be read to the jury there must first be some evidence whence the jury may reasonably presume the signature. The note may then be read, but the defendant may afterwards impeach this evidence if he can.

There has been some question whether the complainant may not be sworn, and if, by her testimony, she prove that these prerequisites have been complied with, she is not within the statute. We are satisfied that she is not, for several reasons. One is, ".hat the prerequisites thus testified to by her have no tendency to support her credit. Another is that, although made a competent witness by the statute, from necessity, yet her testimony ought not to be given tc facts equally within the knowledge of other persons, who are disinterested. As in debt on the statute of hue and cry, the party robbed is a competent witness, from necessity, and he is sworn in chief: he is examined as to all facts which, from the nature of the transaction, must be within his own knowledge ; but to the other facts necessary to support the action, and which, from their nature, are within the knowledge of disinterested persons, he is not examined. As .to the examination before the justice, another reason may be given, for the justice’s record is the best evidence.

Mellen and Wallingford for the plaintiff in error.

Thomas and Holmes for defendant in error.

We cannot avoid remarking on the great informality, not to say insufficiency, of the complaint in "this case. It is a uniform rule of law that, when a statute gives a remedy under particular circumstances, the party seeking this remedy should, in his plaint or information, allege all the facts necessary to bring him within the statute. In this complaint it ought to have been averred, not only that she had been delivered of a bastard child, of which the defendant was 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. We are sensible that this informality has been of long standing; but when it is productive of uncertainty in the law in these cases, it should be removed.

[*445] * We doubt whether the proceedings in this case were removed by the proper writ. Error lies when the proceedings are according to the course of the common law, so that the Court above may, if there be error, render the right judgment. In this case, if the defendant be found guilty, and adjudged the putative father, the court have to assess the weekly maintenance, and to order indemnity to the town ; and bonds are to be given, accordingly, on penalty of imprisonment. The court may after-wards diminish the weekly allowance, if it should appear reasonable. These are powers not given to this Court. But the record and the parties being before us by writ of error, we can proceed to quash the proceedings. But if a record is removed by certiorari, when it ought to have been by writ of error, the reverse is not true. A certiorari may remove the record in any stage of the proceedings at the discretion of the court; error is of right, and lies only after judgment.

Let the proceedings be quashed. 
      
      
         Commonwealth vs. Coley 5 Mass. Rep. 517. — Bacon vs. Harrington, 5 Pick 63
     
      
      
        Soper vs. Harvard College, 1 Pick. 177.
     