delivered the opinion of the Court, at the ensuing term in Lincoln.
It is objected that the complainant has not alleged in her complaint, that she accused the party charged in the time of her travail. This cannot be regarded as essential, inasmuch as the complaint may be made, and the party held to answer, before delivery.
In Commonwealth v. Cole, 5 Mass. 118, Parsons C. J. says that these prosecutions have usually been brought in the county where the child is born ; and that they may generally be there tried, with most convenience. But he adds, that the statute has not made them local, and that there has been no decision upon this point. If neither the statute, nor any judicial construction, which can be adverted to, has limited a complaint of this sort to the county where the complainant is delivered, we are not satisfied tha the objection taken on this ground can be sustained.
But we are all of opinion, as she did not accuse the respondent with being the father of the child, in the time of her travail, before delivery, that this is a defect fatal to her prosecution. After delivery, and before the removal of the after-birth, the mother may, and doubtless does, suffer much pain ; and the solemnity of the crisis, and a consciousness of danger, may continue to affect her mind and conscience ; although probably with less force, from renewed hopes, and apprehensions somewhat allayed. And the statute has made her a competent witness only if she accuse in the time of her travail, and before delivery. The statute of Massachusetts upon this subject, which is similar to our own, has there received a judicial eon-*462struction, to this effect, since the separation. Bacon v. Harrington, 5 Pick. 63.
It is however insisted that, independent of the statute, she is a competent witness from the necessity of the case. If the statute had authorized the complaint, without prescribing conditions, or the mode of proof, there would be weight in this argument. The necessity of receiving her as a witness, would be as strong as that under which the plaintiff is allowed to testify in England, in prosecutions under the statute of Winton; and under the statute made to prevent bribery at elections. But the right to prosecute is derived altogether from the statute, and the accusation in question is there made an essential preliminary to the adjudication, that the party charged is the putative father,
Proceedings quashed.