Tacey v. Noyes

• Decision Date: 21 January 1887
• Citation: 143 Mass. 449,9 N.E. 830
• Parties: TACEY v. NOYES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

143 Mass. 449

9 N.E. 830

TACEY v. NOYES.

Supreme Judicial Court of Massachusetts, Middlesex.

January 21, 1887

COUNSEL

J. Crowley, G.A.A. Pevy, and C.S. Lilley, for respondent.

OPINION

The motion to dismiss ought to have been allowed. The police court of Lowell was established by St. 1833, c. 64, continued by Rev.St. c. 87, Gen.St. c. 116, and Pub.St. c. 154, §§ 4 5. The justices have, in general, like authority and powers. In every sense they are all judges of the court. Com. v Hawkes, 123 Mass. 525. See Pub.St. c. 85, § 1. It will be observed that the term court, as distinguished from justice or trial justice, is used throughout this section. Pub.St. c. 154, § 22. A complaint of this character may be made to the police court of Lowell, or when the court is not in session, to any one of the justices thereof. Com. v Hawkes, supra; Ex parte Gladhill, 8 Metc. 168; Pub.St. c. 87, § 11; Id. c. 162, §§ 1, 27; Id. c. 161, § 122. If the complaint had been made during the session of the court, it would then have been the duty of the clerk to make the certificate, but not otherwise. Richardson v. Burleigh, 3 Allen, 479. As to the testimony of Bartlett, see Pub.St. c. 85, § 16, consulting the entire section above quoted, the time of travail must be deemed to cease with the birth of the child, and an accusation made thereafter cannot be put in evidence. Bacon v. Harrington, 5 Pick. 63; McManagil v. Ross, 20 Pick. 105. The evidence tended to establish a proposition, in fact an allegation, in the complaint, which, if proved to the satisfaction of the jury, must have been decidedly prejudicial to the respondent.

N.D. Pratt and E.B. Quinn, for complainant.

The motion to dismiss the complaint was properly overruled. There is nothing in the case to warrant the implication that the complaint was not properly sworn to before the police court, during a session thereof. It is to be presumed that the court was in session, and the proceedings in all respects regular. Richardson v. Burleigh, 3 Allen, 479; Hyde v. Malley, 121 Mass. 388; Sabins v. Jones, 119 Mass. 167. Even if irregular, the appearance of the respondent before the court which issued the warrant, and his giving bond for his appearance before the superior court, without raising objections to the intermediate proceedings, cured any defect in such proceedings. Collins v. Conners, 15 Gray, 49. The evidence of Bartlett was properly admitted. We submit that it cannot be held that the respondent had been "delivered" of the child until the umbilical cord had been severed. It is worthy of note that in Bacon v. Harrington, 5 Pick. 63, presumably relied on by the respondent, while it there appears that the accusation was made before the removal of the after-birth, still it does not appear but that the child had before then been separated from the mother by severing the umbilical cord. No exception lies to the ruling permitting testimony, on cross-examination, as to the character of the business at respondent's hotel.

C. ALLEN, J.

The defendant introduced no evidence to show that, in point of fact, the complaint was sworn to before the justice of the police court when the court was not in session, but contends that this must be assumed from the language of the complaint itself, the words being: "The voluntary complaint, etc taken on oath before the justice of the police court of...