Hyde v. Chapin

¶1This case has twice been before this court at former terms. See Rice v. Chapin, 10 Met. 5; and Hyde v. Chapin, 2 Cush. 77. The old question, whether proceedings on the bastardy act were of a civil or criminal character, which was raised in the last of the above-reported cases, seemed to have been settled, and such proceedings to be assigned to the criminal jurisdiction of the court of common *67pleas, except when otherwise directed by statute, by the case of Cummings v. Hodgdon, 13 Met. 246.*

¶2The entry of this suit originally in the court of common pleas was right, the proceeding having been commenced before the criminal term in the county of Hampden was established, (St. 1845, c. 253,) and the case came rightly to this court by exceptions. The order remanding it to the court of common pleas, which should have been to the next criminal term, was equivocal, and did not direct at what term it should be entered. The entry of the case, at the next civil term of the court of common pleas, was irregular; and had there been no appearance, such entry might have worked a discontinuance. But there was a general appearance, and that, we think, saved the discontinuance. Jenkins’s Centuries, 57; 8 Petersdorff’s Ab. 392; 1 Lilly’s Ab. 475. The trial before that court was irregular, and the case was sent back and was rightly entered at the next criminal term of the court of common pleas. Hyde v. Chapin, 2 Cush. 77. The case came here properly by exceptions, and the court had jurisdiction and rightly remanded it. This court expressed no opinion, whether the court of common pleas would be bound to take jurisdiction, because the point was not argued. But the case itself indicated sufficiently, that if the court of common pleas could have jurisdiction at all, it must be exercised at the criminal term.

¶3As to the last point, whether the complaint filed in the court of common pleas, at the civil term, was rightly before the court of common pleas at the late criminal term, the record shows, that when the proceedings came here from the court of common pleas, the record contained the complaint and proceedings de facto, and these, with the whole record, were transmitted to the criminal court of common pleas. They were adopted and acted upon at the trial, and are therefore to be considered as if filed and allowed, under the order *68of the supreme judicial court, by which they were thus sent.

¶4Exceptions overruled, and case remanded to the court of common pleas to enter the proper order.