Kennedy v. Palmer

72 Mass. 316

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1856
• Status: Published

Opinion

Dewey, J.

It is conceded that the justice of the peace had jurisdiction of this case, unless it was taken away by St. 1855, c. 312. The case is destitute of all evidence as to the precise hour of the day at which the writ was made, or the act received the approbation of the governor, and thus became a law.

To sustain the jurisdiction of the justice of the peace, as it seems to us, it is not necessary to hold that this act took effect only after the day of its passage, thus excluding the entire 7th of May. Such a construction it might be very difficult to sustain against the express provision that it was “to take effect from and after its passage.”

It being conceded that the justice had jurisdiction until the precise point of time when the act was approved by the governor, the justice had jurisdiction during a portion at least of the 7th of May. His jurisdiction previously acquired was in full force in the early part of that day, and, for aught that appears, for many hours of that day. To sustain this motion to dismiss, it must be made apparent that this writ was issued after the passage of this act. Showing merely that it was issued on the 7th of May fails to establish that fact, and there is nothing else in the case to show it. It does not appear, therefore, that this suit was instituted after the passage of the act creating a police court and transferring the jurisdiction of all civil actions between persons living in Lee to that court. As presented, the case does not raise the question, whether, upon proof that in fact the suit was commenced at an hour of the day later than that of the passage of the act, the action should be dismissed.

Exceptions sustained.