M'Managil v. Ross

• Shaw C. J. delivered the opinion of the Court. A preliminary objection was taken, that a bill of exceptions is not the proper mode of bringing questions before this Court, from the Municipal Court, but that it must be done by certiorari. However this was before the Revised Statutes, of which some authorities were adduced, we think the case is made clear of doubt, by the Revised Statutes, which provide (c. 86, § 11,) that exceptions may be taken to any decision or direction of the Municipal Court in matter of law, in the same manner and with the same limitations as to those of the'Court of Common Pleas. Rev. Stat. c. 138, §11. The Revised Statutes went into operation on May 1, 1836, and this trial took place afterwards, in the course of the same month. By the provision in c. 146, § 5, it is directed, that the repeal- of the preceding acts, shall not affect any suit commenced before the repeal, but the proceedings, when necessary, shall be conformed to the Revised Statutes. This provision being prospective, as to all acts to be done under it, and saving all existing rights, applies properly to the proceedings upon this trial, and affords the rule by which they were to be governed, without being-obnoxious to the charge of being retrospective in their operation. The exceptions therefore were well taken, and are now properly before this Court. Upon the merits, although the exceptions assume two or three different forms, they resolve themselves substantially into one question, namely, whether the complainant did accuse the. respondent, in the time of her travail, as being the father of her child. The first exception is, that she ought not to have been received as a competent witness, because she had not so accused him, and that this is a condition precedent. This statute, as we have had occasion before to remark, is obscurely ex [103] pressed, and it" is not easy to understand all its provisions. There is no doubt, however, that it was intended to admit the complainant as a competent witness, leaving her credibility the jury, being a person directly interested, on condition that she shall have accused the respondent as tbe father of her child, in the time of her travail. The legislature obviously ntended to seize upon this circumstance of danger, suffering, and the fear of immediate death, for the sake of securing evidence to a fact usually of so private a character, that it would be likely to be known only to the parties, by compelling the interested party, as a condition precedent, to make the accusation, under such circumstances of pain, and fear of death, as to overcome the influence of interest, and induce the complainant to declare the truth. One point taken for the respondent, was founded upon the words of the statute, “being put upon the discovery of the. truth respecting the same accusation in the time of her travail,” and it was objected, that no accusation would answer the statute, unless she was interrogated, and called upon to declare the truth. But we think this not requisite. Whether she made the accusation in answer to any inquiry of others, or from the impulse of her own mind, it is sufficient ; she may have been previously instructed in the necessity of such an accusation, and those about her may know nothing of the necessity or propriety of making any such inquiry, or may be interested to prevent it. 'Nor is it necessary, that any express declaration should be made. If in any form she intelligibly mentioned tbe fact, as a fact, it is an accusation within the meaning of the statute. Upon the evidence set forth in the bill of exceptions, the Court perceive no ground to dissent from the opinion and decision of the judge of the Municipal Court upon this point. [After stating the evidence :] On the whole view of the evidence, we are of opinion, that the condition had been complied with, and the complainant was rightfully admitted as a witness. It was contended, that upon this question of competency, it is not open to this Court, especially when there was conflicting evidence, to reconsider the conclusions of fact, to which [104] the judge of the Municipal Court arrived, and that his decísion upon the fact must be considered final. This point may deserve consideration when it is distinctly made and insisted on ; but in this case, as the same question was made, upon the same evidence, in regard to the legality of the judgment, and the evidence having been minutely detailed in the bill of exceptions, it may perhaps be considered, that it was the intent of the judge to reserve that question for the consideration of this Court upon the evidence. 1^ may be remarked, in passing, that we cannot perceive upon what principle of law or practice, the competency of the complainant, as a witness, could be left to the jury. It seems not to be distinguishable from the common case, where the competency of a witness is decided by the court, and the evidence is submitted to the consideration of the court for that purpose. As the jury affirmed the decision of the judge, it cannot affect the present case. It was argued in behalf of the complainant, that by the statute it was not a necessary condition to the admissibility of the complainant, as a witness, that she should have accused the defendant in the time of her travail, in the cases where she has not made her complaint to a magistrate before the birth of the child. To this purpose the counsel cited Wormstead's case, 2 Dane’s Abr. 517. This was a manuscript case, cited by Mr. Dane, as having occurred before the' publication of reports ; and it probably occurred before the court of sessions. It cannot be deemed a case of any authority, and it is opposed to a series of decisions, upon the construction of the statute. The complainant is directly interested in the event of the suit, and is strongly tempted. to give false testimony on a subject, in regard to which it would be usually difficult, if not impossible, to bring opposing evidence. This evidence is made admissible by the statute, only on condition that she shall have made the same declaration, when the condition of suffering and the fear of death may afford some security against falsehood. The condition therefore is to be strictly complied with, to give this great privilege, and justify this obvious departure from the salutary restraint of the common law rule. This construction of the statute is supported [105] by the current of authorities, several of which are to be found cited in the same page of Mr. Dane’s work already quoted. Browne v. Stimpson, 2 Mass. R. 441 ; Commonwealth v Cole, 5 Mass. R. 517 ; Bacon v. Harrington, 5 Pick. 63 ; Dennett v. Kneeland, 6 Greenl. 460. The Court are of opinion, that in this respect, there is no distinction between the cases where the complainant makes her complaint after the birth of the child and before. In either case, to make her a competent witness under the statute, it must appear by evidence aliunde, that she did accuse the defendant as the father of her child, whilst her mind was impressed and solemnized by the pains of child-birth, and the fear of death. Exceptions overruled, the decisions of the judge of the Municipal Court affirmed, and the proceedings remitted to that court for judgment.