Chapel v. White , 57 Mass. 537 ( 1849 )

Shaw, C. J.

As to the complaint, the question is, whether it is so informal and defective, in the statement of the case, that the judgment must be arrested. This question arises on a motion after verdict, and not on a demurrer, in a quasi civil action. Wilbur v. Crane, 13 Pick. 284.

The proceedings in bastardy under the statute are peculiar. The complaint in the court of common pleas is not the foundation of the proceedings, as in the case of a writ, petition, complaint for flowing, indictment, or the like ; the case may be entered, and the court have jurisdiction, before the complaint is filed; it is rather a mode of stating the facts, and framing an issue thereon, with a view to a convenient and orderly trial of the true matter of controversy. Drowne v. Stimpson, 2 Mass. 441; Rice v. Chapin, 10 Met. 5.

Treating the case, then, in this respect, as the trial of a civil action, we must presume, after a verdict for the complainant, that it was proved on the trial, that the child born was a bastard. If, therefore, there be any defect in the complaint, it seems to come clearly within the rule, that a case defectively stated is cured or made good by the verdict; though it would be otherwise if no legal title or cause of action were stated. The complaint refers to the proceedings before the magistrate, and makes profert of them; then, reading them in connection with the complaint, it avers, that the child was expected to be born a bastard, and was born, &c., and thus states a case within the statute.

On the other point, the court are of opinion, that the witness was rightly rejected. He was the surety on the defendant’s bond, and was of course interested, and the offer of another bond did not remove that interest. It is not within the cases of Allen v. Hawks, 13 Pick. 79, and Hall v. Baylies, 15 Pick. 51, in which a sum of money was deposited with the witness, sufficient to meet his largest liability. Money is not only the standard and measure of values, but itself affords the means of securing to the witness a direct and complete indemnity, without impairing or even changing the rights of the party entitled to the benefit of the bond; whereas the sufficiency of other securities must depend upon estimate and opinion, and the substitution of them, without the consent of the obligee, might impair his rights.

Exceptions overruled