The defendant claimed that as the result of some disease or injury of his genital organs, or of surgical operations had for his relief, he was not capable of begetting the plaintiff’s child. It was of course the position of the plaintiff that no disease or injury had been shown that could justify the conclusion that this incapacity existed. In this situation, the comment and query of plaintiff’s counsel to which exception was taken, although possibly suggestive of prior misconduct on the part of defendant, cannot be treated as legal error.
The defendant excepted to the order for the support of the child “being made payable to the town of Bethel.” It is now urged in support of the exception that there was no evidence tending to show that the child was chargeable or likely to become chargeable to the town. No question having been made prior to the judgment as to the overseer’s right to prosecute, the exception taken will not enable the defendant to question the town’s right to the payment. Nor was the éxeeption sufficiently specific to save the questions now argued as to the want of terms limiting the successive payments to the life of the child and its need of support.
Judgment affirmed.
The defendant’s case for a new trial consists in part of the affidavit of his son. The plaintiff came to live in her father’s family, where the defendant and his men boarded, late in December, 1905, and remained there, with occasional brief absences, until the very last of January, when she left town and remained away several weeks. The child was born October 23. These facts, which must have been known to the defendant, were sufficient to charge him with the preparation of a defence having reference to the month of January. The defence put in, other than evidence as to defendant’s condition, was confined to his *504own testimony in denial of the several acts of intercourse testified to by the plaintiff. If the defendant’s son slept with him every night during the month, and was with him continuously every week day, and spent every Sunday at the house, the defendant knew all this before the trial as well as after, and the commonest prudence required that he have his son in attendance. If his son was sick and unable to attend, he should have moved for a continuance. The defendant is not entitled to have this affidavit considered.
It appears from other affidavits that the plaintiff was in Pittsfield several weeks in March and April, and that her board was paid by one Boutwell; that Boutwell frequently visited her and finally gave her money to procure á license for their marriage; that after this was procured and shown to Boutwell he left Pittsfield, sending the plaintiff word that he would return in a day or two, but not returning; that in subsequent conversations about her expected marriage and Boutwell’s absence, the plaintiff referred to her condition and to Boutwell as the father of her child. It is alleged in the petition that the defendant had no knowledge of these matters until after the trial. The knowledge of his counsel is not negatived in any manner. The cross-examination of the plaintiff indicates that defendant’s counsel knew of Boutwell and of the existence of some relation between the two. The general rule requires that a petition ol this nature be' supported by the affidavit of the attorney, and this case discloses no ground of exception, but rather a special reason for its application.
Petition dismissed with costs.