Gallary v. Holland

Dewey, J.

1. The proceedings in this case were properly commenced before a justice of the peace in the county of Middlesex, the defendant at that time residing in that county, and the allegation in the complaint being that the child was begotten in the county of Middlesex. The case of Williams v. Campbell, 3 Met. 209, fully sustains the jurisdiction, and this at a time when the character of such a prosecution, as being a civil process, was questionable. By the St. of 1851, c. 96, it is enacted that the proceedings in such prosecutions shall be according to the course of proceedings in civil cases, and tried at the civil terms. Such being the present state of the law, the case comes clearly within the provisions of Rev. Sts. c. 90, § 14, and authorizes the action to be brought in the county where either of the parties ives.

2. The complaint before the magistrate is a sufficient compliance with the requisition of the statute in that respect, and well authorized the subsequent proceedings against the respondent.

3. This accusation thus made by the complainant, being her accusation and examination preliminary to issuing the warrant for the arrest of the respondent, is by the Rev. Sts. c. 49, § 1, made evidence on the trial of the issue before the higher court.

*524. The evidence of the attending physician as to her accusation in the time of her travail, was also in conformity to the provisions of the same statute, § 3.

5. The remarks of the presiding judge, in his charge to the jury, as to the omission of the respondent, when present, to offer himself as a witness, and deny the truth of the allegations of the complainant, and that this was a fact that might be considered by the jury in corroboration of the testimony of the complainant, furnish no ground for exceptions.

Exceptions overruled