Commonwealth v. Clark , 2 Mass. 156 ( 1806 )

Parsons, C. J.

This cause comes before the Court upon a certiorari, on which are certified the proceedings of the Court of Sessions upon an information preferred by Jjijdia Clark against Joseph Cundell, as the putative father of her bastard child, that he might stand charged towards the maintenance of the child. Cundell has taken several exceptions against the regularity of the proceedings, of which the Court do not think it necessary to give 'any opinion, because there appears another exception, which must be fatal There is not in the record any adjudication that Cundell was the putative father of the child. This adjudication is necessary, as the only foundation of the subsequent order for maintenance. The statute of March 15, 1786, which gives to the mother of the bastard child this remedy, 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 ; and the cases of Rex vs. Perkasse, 2 Sid. 363 ; Regina vs. Weston, Lord Raym, 1198, and The King vs. Pitts, Doug. 662, are express authorities.

Sprout and Holmes for the commonwealth. Padelford and Washburn for the respondent.

The Court,

therefore, for this exception, without giving any opinion as to the others, ordered

The proceedings quashed.