¶1The court are of opinion that the husband was properly admitted to prosecute this complaint, with his wife; Wilbur v. Crane, 13 Pick. 284, and Keniston v. Rowe, 4 Shepley, 38 ; and that the wife was not thereby rendered incompetent to testify at the trial. The exceptions were therefore not well taken.
¶2But no judgment can be rendered on the verdict. The trial was before the court of common pleas for the county of Hampden, at February term, 1848, at which, by St. 1845, c. 253, the court was restricted to the transaction of civil business exclusively. By the same statute, a term in May and a term in December are required to be held “ for the disposition of the criminal business of said county.” This case, as was decided in Cummings v. Hodgdon, 13 Met. 246, is one of criminal business, and therefore the court had no jurisdiction of it, at the term when it was tried. For this cause judgment must be arrested.
¶3If, however, the complainants move that the case be remanded to the court of common pleas, the motion will be *80granted; and that court will take such further action in the premises as they may find to be warranted by law. We give no opinion upon the question, whether that court can cause this case to be entered on their docket of criminal business, and proceed with it. This question has not been argued.