Keniston v. Rowe , 16 Me. 38 ( 1839 )

The opinion of the Court was subsequently drawn up by

Shepley J.

It was decided in the case of Wilbur v. Crane, 13 Pick. 284, that when the woman marries after the birth of her child, the husband should join in a prosecution of this description.

The statute in terms authorizes the prosecution to be commenced after the birth, and there is nothing in the other provisions so inconsistent as to authorize courts to deny the right. The process is one of a peculiar character, existing only by statute, and any attempt to class it with actions, or suits at common law of any description, will afford little light. It is not comprehended under any term used in the statutes of limitation, nor does it appear to have been designed to be limited by any of them. The facts disclosed in the case remove any legal presumption, if any could arise, on account of the length of time, which has elapsed.

The fact, that the child needs no assistance cannot operate as a bar to the prosecution, for it is not the present maintenance only, which is to be secured ; the party is required to give bond to secure the town against future liability. And it does not enter into the consideration of the case until after there has been a judgment respecting the reputed parentage, when it will become the proper subject of examination and of consideration.

It is said, that the testimony offered should have been admitted, because the color of the child might have been such as to prove conclusively, that the defendant was not the father of it. But it was not the color, or any peculiarity of conformation, or form of features, as matters of fact, that were proposed to be proved, it was to prove a resemblance, which is matter of opinion; and witnesses, if they could have .sight of the persons, might be indefinitely multiplied, without affording any satisfactory ground of judgment for a jury. Witnesses except in some art, trade, or profession, requiring peculiar skill or science, are not called to form comparisons and to testify to opinions arising from them.

The facts being proved, the jury were to be the judges of the effect of similarity or dissimilarity in form or complexion.

Exceptions overruled.