| Me. | Sep 15, 1821
In all indictments such facts must be stated as, if proved, will justify a conviction and sentence. In civil actions too, the declaration must state a good cause of action, and there must be an averment of all those facts which it is necessary should be proved to entitle the plaintiff to a verdict. In looking into the record produced to support this application, it appears to be grossly defective. Some of the most important facts necessary to justify a verdict against the original defendant are totally omitted. No declaration was ever filed in the cause; no plea given ; of course no issue joined; in fact, no foundation for the verdict and judgment is disclosed. There is nothing in the case but the examination taken before the magistrate ; and this was considered as the basis of the proceeding in the Court below, and as a sufficient complaint, or charge, or declaration, on which the cause should be tried ; and yet it appears that such complaint or examination was merely used as proof. Nor does it appear that any child has ever been born. In fact thé record is wholly defective and irregular. It is somewhat surprising that such loose practice should be continued by counsel or allowed by the Court below after the decision of the case of Drowne v. Stimpson, 2 Mass. 444.
In prosecutions under the act on which this complaint was founded, after the action is entered, and before the cause can be put to trial, the complainant must file a declaration, stating all the material facts which are necessary to be proved to support the prosecution. In this declaration she should state that she has been delivered of a bastard child ; that it was begotten upon her body by the person accused, and the time and place when and where the child was begotten, with as much precision as she can; that being put upon the discovery of the truth respecting the same accusation in the time of her travail, she did thereupon accuse the defendant of being the father of such child ; and that she has continued constant in such accusation,
Having thus stated the regular mode of proceeding in such cases, the question is, what order shall be taken on the present application. We have been furnished with proof that though no declaration was filed or issue joined, yet a fair and full trial was had ; and that the birth of the child as a bastard, the constancy of the complainant’s accusation, and her charging the petitioner with being the father of the child in the time of her travail, were all proved to the jury. No substantial injustice, then, has been done, though much irregularity appears in the record. It is in the discretion of the Court to grant the writ;— in which case the proceedings must be quashed, and all expenses incurred by the suffering complainant be wholly lost, and she turned round to a new prosecution;—or to deny the rvrit; leaving the proceedings undisturbed, and the rights of the parties as they were settled by the verdict and judgment. Considering that a fair trial has been had, and that there seems no reason to question the justice of the decision, we prefer the latter course ; but in future, similar indulgence will not be shewn by the Court, where such irregularities are allowed to occur» Accordingly the application is not sustained and the
Writ is denied.