Phillips v. Hoyle

70 Mass. 568

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1855
• Status: Published

Opinion

By the Court.

The object of this application is to show that a judge of the court of common pleas has refused to allow exceptions according to the truth of the case. It is a case of very strict right—strictissimi juris. We consider ourselves bound by the rule

* which we have established on this subject, under the power conferred upon us by St. 1851, c. 261, § 2; and the applicant not having brought himself strictly within it, the application must be dismissed.†

By the Court.

The statute only authorizes the party to allege exceptions in addition to those allowed by the judge. It does not affect his right to prosecute those exceptions, but expressly provides that “ the same proceedings shall be had, in removing the case in which the exceptions are refused to the supreme judicial court, as are now provided by law in cases where exceptions are allowed and signed by the judge presiding in the court below.” If for any 'cause the application to establish the truth of exceptions fails, the exceptions allowed stand as if no such application had been made.

The exceptions allowed were then argued.

Upon the question of affiliation, the character of the complainant for chastity was not in issue. Nor had the evidence of particular acts of unchastity six months before the child was begotten any tendency to show that the defendant was not the father of the child. And the evidence upon these points had no legal tendency to discredit the complainant as a witness. Being offered for both cases, it was rightly rejected.

The defendant’s inquiry about a nurse was proper evidence to be considered by the jury. It was neither a negotiation or offer of compromise, nor a narrative of any such offer or negotiation.

In an action for seduction, injury to the plaintiff’s feelings is an element in computing the damages, as being a natural consequence of the principal injury; and need not be separately averred in the declaration.

Exceptions overruled.

Ordered, that, whenever a party shall seek to establish before this court the truth of any allegations in a bill of exceptions which a judge of the court of common pleas shall have refused to allow and sign, in pursuance of the pro visions of St. 1851, c. 261, he shall, in all cases, file his petition, verified by affidavit, setting forth in full said allegations and all facts material thereto, at the term of the court at which the exceptions would by law have been entered, if duly signed and allowed; and shall give notice of said petition to the adverse party, by delivering a copy thereof to him, or to the attorney of record, ten days, at least, before said term. And no party shall be allowed to establish the truth of any such allegations in this court, if he shall have failed to comply with the requisitions herein prescribed.

A similar decision was made in Middlesex, October term 1857.

Dustin Marble vs. John S. Keyes.

Application to establish the truth of exceptions disallowed by the court ot common pleas. The only paper filed was a copy of the bill of exceptions which the court of common pleas had refused to sign, annexed to which was an affidadavit of the plaintiff’s attorney, addressed to the defendant, certifying that they wore conformable to the truth, and that “ this is to give you notice that the plaintiff will produce evidence before our supreme judicial court to sustain the same; ” and copies of this bill and affidavit were duly served upon the defendant. The Court dismissed the application, because no petition had been filed and served.

R. B. Caverly, for the plaintiff.

B. F. Butler, for the defendant.