Richardson, C. J.
delivered the opinion of the court.
It is objected, that it does not appear by the record in this case, that the child, with whose maintenance the respondent has been found by the jury chargeable, was born alive ; and that, by reason of that defect, there is no legal ground, on which he can be ordered by the court, to give security, to save the town of C. harmless from its maintenance. To ascertain if this objection have any foundation in fact, it is necessary to examine the record, Upon looking into [140] the proceedings, it appears that, previous to the birth of the child,, the mother went before a justice of the peace, and made her complaint, that she was pregnant, and that the child had been begotten by the respondent. It also appears, that he, being held to answer the said complaint, came into court ; and that the issue, “whether chargeable or not,” as prescribed by the statute, was joined between the parties to the prosecution. The joining of this issue is an allegation on the part of those who prosecute, that the respondent is chargeable with the maintenance of the child ; and that allegation necessarily implies, and cannot be proved without evidence of the birth of a living child. And the jury could not have found the respondent chargeable, had they not found, that the child was born alive. That fact then appears by necessary implication, not only from the allegation of those, who prosecute, but from the finding of the jury. If then, we apply to this case the most rigid rules of law, this is an instance not of a defective title, but of a title defectively stated, and is cured by the verdict. 2 N. H. Rep. 385, Walpole vs. Marlow.
It is also contended, that the proceedings in this case are defective, because it does not appear, that the complainant declared, in the time of her travail, that the respondent was the father of the child, nor that she has continued constant in her declarations; and the remarks of Parsons, C. J. in the case of Drowne vs. Stimpson, (2 Mass. Rep. 441,) seem to give some countenance to this exception. But upon the most mature consideration, we are of opinion, that it must be overruled. It is true, that to entitle the mother of the child to be a witness in a prosecution, which she carries on to compel him to contribuí e to its support, it must be shewn, that previous to her delivery she voluntarily, on oath before a justice of the peace, charged the respondent with being the father of the child, and declared, as near as might be, the time when, and the place where, it was begotten. It must also be shewn, that she, in the time of her travail, declared the respondent to be the father of the child, and that she has continued constant in her declarations. All this must be shewn, before she can be permitted, while she has an inter[141] est in the cause, to be a witness. Her credit must be fortified bj proof of these circumstances, before she is entitled to testify in her own cause. But it has never been understood in this state, that the liability of the respondent, in these cases, depended upon the proof of these circumstances, It has always been supposed, that the respondent was to be charged, because he wras in fact the father of the child, and not because the complainant had, in the time of her travail, declared him to be the father, nor because she had continued constant in her declarations. In the case of Locke, complainant, vs. Smiley, in the county of Hillsborough, April term, 1823, the complainant was rejected as a witness, because she had not, in the time of her travail, declared the respondent to be the father of her child ; but the prosecution was permitted to proceed, and the respondent was found by the jury and adjudged by the court to be chargeable. In the case of Colby, complainant, vs. Stores, in the county of Grafton, November term, 1822, the complainant died at the time the child was born. But the town, in which the child had its settlement, was permitted to come into court and prosecute ; and upon proof of the dying declarations of the mother, and other circumstances, the respondent was found chargeable, and so adjudged by the court. In the case of Clogston, complainant, vs. Lund, in the county of Hillsborough, October term, 1824, the complainant, having neglected to declare in her complaint before the justice of the peace the time when the child was begotten, abandoned the prosecution. But the town, in which the child was settled, came into court and prosecuted ; and the respondent was found by the jury chargeable, and was ordered by the court to give security, to save the town harmless from the maintenance of the child.
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Richardson, C. J.
delivered the opinion of the court.
It is objected, that it does not appear by the record in this case, that the child, with whose maintenance the respondent has been found by the jury chargeable, was born alive ; and that, by reason of that defect, there is no legal ground, on which he can be ordered by the court, to give security, to save the town of C. harmless from its maintenance. To ascertain if this objection have any foundation in fact, it is necessary to examine the record, Upon looking into [140] the proceedings, it appears that, previous to the birth of the child,, the mother went before a justice of the peace, and made her complaint, that she was pregnant, and that the child had been begotten by the respondent. It also appears, that he, being held to answer the said complaint, came into court ; and that the issue, “whether chargeable or not,” as prescribed by the statute, was joined between the parties to the prosecution. The joining of this issue is an allegation on the part of those who prosecute, that the respondent is chargeable with the maintenance of the child ; and that allegation necessarily implies, and cannot be proved without evidence of the birth of a living child. And the jury could not have found the respondent chargeable, had they not found, that the child was born alive. That fact then appears by necessary implication, not only from the allegation of those, who prosecute, but from the finding of the jury. If then, we apply to this case the most rigid rules of law, this is an instance not of a defective title, but of a title defectively stated, and is cured by the verdict. 2 N. H. Rep. 385, Walpole vs. Marlow.
It is also contended, that the proceedings in this case are defective, because it does not appear, that the complainant declared, in the time of her travail, that the respondent was the father of the child, nor that she has continued constant in her declarations; and the remarks of Parsons, C. J. in the case of Drowne vs. Stimpson, (2 Mass. Rep. 441,) seem to give some countenance to this exception. But upon the most mature consideration, we are of opinion, that it must be overruled. It is true, that to entitle the mother of the child to be a witness in a prosecution, which she carries on to compel him to contribuí e to its support, it must be shewn, that previous to her delivery she voluntarily, on oath before a justice of the peace, charged the respondent with being the father of the child, and declared, as near as might be, the time when, and the place where, it was begotten. It must also be shewn, that she, in the time of her travail, declared the respondent to be the father of the child, and that she has continued constant in her declarations. All this must be shewn, before she can be permitted, while she has an inter[141] est in the cause, to be a witness. Her credit must be fortified bj proof of these circumstances, before she is entitled to testify in her own cause. But it has never been understood in this state, that the liability of the respondent, in these cases, depended upon the proof of these circumstances, It has always been supposed, that the respondent was to be charged, because he wras in fact the father of the child, and not because the complainant had, in the time of her travail, declared him to be the father, nor because she had continued constant in her declarations. In the case of Locke, complainant, vs. Smiley, in the county of Hillsborough, April term, 1823, the complainant was rejected as a witness, because she had not, in the time of her travail, declared the respondent to be the father of her child ; but the prosecution was permitted to proceed, and the respondent was found by the jury and adjudged by the court to be chargeable. In the case of Colby, complainant, vs. Stores, in the county of Grafton, November term, 1822, the complainant died at the time the child was born. But the town, in which the child had its settlement, was permitted to come into court and prosecute ; and upon proof of the dying declarations of the mother, and other circumstances, the respondent was found chargeable, and so adjudged by the court. In the case of Clogston, complainant, vs. Lund, in the county of Hillsborough, October term, 1824, the complainant, having neglected to declare in her complaint before the justice of the peace the time when the child was begotten, abandoned the prosecution. But the town, in which the child was settled, came into court and prosecuted ; and the respondent was found by the jury chargeable, and was ordered by the court to give security, to save the town harmless from the maintenance of the child.
It seems, from the case of Drowne vs. Stimpson, to which we have before referred, that in Massachusetts, where the provisions of their statute are, in this respect, substantially the same as the provisions of our statute, their court, following the letter of the statute, have held, that the respondent was not chargeable within the intent of the statute, unless the mother of the child charged him in the time of her travail with being the father, and continued constant in her de[142] claration. Rut in this state, a much more liberal construction has been always given to the statute. No complaint is known to have existed, containing an allegation of those facts. Indeed, as the respondent has always been tried upon the complaint made to the justice of the peace previous to the birth of the child, there could be no such allegations. It has never been the practice in this state, to file a new complaint, « after the birth of the child. It appears by the remarks of Parsons, C. J., in the case just mentioned, which was decided in the year 1807, that up to that time it had not been the practice in Massachusetts, to insert, in the complaint, those allegations; and we have felt no small degree of curiosity to learn the grounds, on which that eminent judge was induced to call in question the accuracy of the forms then in general use. In delivering his opinion, he refers to the English statutes of hue and cry ; and there is some reason to conjecture, that he drew from the form of the declaration upon those statutes the principles, he seems to have been disposed to apply to the statute relating to the support of illegitimate children, We have looked into the statutes of hue and cry, and find that by the statute of White®, which was enacted in the 13th year of Edward I., the hundreds, where robberies were committed, were made liable for the robberies done, provided- the inhabitants of the hundred did not take the robbers within 40 days. 2 Saund. 374, note I. The statute of the 21 Eliz. cap. 13, sec. 11, enacted, that the party robbed should not have any action, except he first, within 20 days before such action is brought, be examined upon oath before some justice of the peace, whether lie knew the parties that committed the robberies, or any of them.— Since the passing of this last statute, it has been usual to allege in the declaration, that the party robbed was thus examined, Pinkney vs. East hundred, in the county of Rutland, 2 Saund. 174.—Lilly’s Entries 295, But it has long been settled, that this is not necessary ; because the action is founded on the statute of Wintoa, which does not require it ; and the statute of 27 Eliz. is only directory ; and its directions need not be inserted in the declaration. 2 Saund. 276, note. 5.—2 Salk. 614, Dawley vs. The hundred of [143] Odium. It is, however, probable, that it would have been held necessary to allege in the declaration, that the party robbed was examined upon oath, had the statute of Winton contained the same provisions, as the statute of the 27 EKz. contained. But even in that case, there would have been a very slight analogy between the statute of Winton and our statute relating to illegitimate children ; because our statute does not, in express terms, declare that the respondent shall not be liable, unless the complainant charge him in the time of her travail. It therefore seems to Us, that the English decisions upon the statute of hue and cry, when attentively examined, have a very slight bearing upon the question now before us.
The real inquiry in this case is, what is the true intent and meaning of the statute ? and in this enquiry the common sense and the common understanding of men is a safe guide. We cannot assent to the construction of the statute, for which the respondent contends ; because it is not consonant, in our belief, with the general and Uniform understanding of the community upon the subject ; because it makes the liability of the respondent in these cases depend not on the fact of his being the father of the child, but upon the particular manner of proving the fact ; and because, in our opinion, the circumstances, which it is contended are essential to bé alleged, in order to charge the respondent, were intended by the legislature merely as prerequisites to the competency of the complainant as a witness in the cause. • We think it was the intention of the legislature, that the father of the chili should be charged, simply because he was the father.
A construction very similar tó the one, we are disposed to give this statute, has been put upon the act to restrain th@ taking of unlawful interest. That act declares, that if the debtor shall come into court and offer to make oath, and if required, actually swear, that more than six per cent, has been received or secured, the court shall deduct, from the sum lawfully due, three times the amount of the unlawful interest ; unless the creditor will swear, that no more than lawful interest has been received or secured. Upon this statute, it has never been supposed, that the power of the court [144] to make the deduction depended upon the mode of proof ; but it has been repeatedly decided, that, when the usury was found by the verdict of a jury, the deduction might be made.
This being the opinion of the court, in relation to the motion now before us, it is ordered, that the respondent give security to save the town cf C. harmless, and that he pay the -costs of this prosecution.