Blake v. Junkins , 35 Me. 433 ( 1853 )

Appleton, J.

— The right on the part of a complainant in a bastardy process to testify in her own cause is derived entirely from R. S. c. 131, and unless a compliance with its provisions is clearly shown,-she cannot be a witness. The eighth section among other things provides that if “ at the time of her travail” she shall “accuse the same man with being the father of the child, of which she is about to be delivered,” &c. “ she shall be a witness in the trial of the cause, unless she would be an incompetent witness in the trial of any other cause, by reason of conviction of some crime.” In this case after the child had been expelled from the womb of the mother but before the connection between them had been severed, certain inquiries were made of and answers given by the mother in relation to the paternity of the child. The answers then given were offered in evidence and were excluded. The accusation of the putative father must be made by the mother at the time of her travail with the child “ of which she is about to be delivered.” Now were the answers given when the mother was about to be delivered of her child ? In drdinary language or in the most strictly scientific use of terms, could the mother be said to be about to be delivered of a child, after that child had left the womb ? The word delivery was used in its ordinary and accustomed acceptation. The best writers on medical jurisprudence as well as the decisions of our Courts concur in this, that after the child has passed from the body of the mother a delivery of the child has taken place. The language of the R. S. is similar to that of the bastardy Act of 1821 and the judicial construction given the latter must be considered as affirmed by the legislative reenactment of its provisions. Dennett v. Kneeland, 6 Green. 460; Bacon v. Harrington, 5 Pick. 63. The cases are decisive'of the question raised in this cause. The testimony offered was rightly excluded.

Nonsuit ordered.

Shepley, C. J., and Tenney, Wells and Howard, J. J., concurred.