Jackson ex dem. Boyd v. Lewis

13 Johns. 504 | N.Y. Sup. Ct. | 1816

Thompson, Ch. J.,

delivered the opinion of the court.

1. There can be no doubt, that the evidence offered to impeach the character of Catharine Bassett was inadmissible. It would not be competent to prove, that she was now a public prostitute, and, much less, to inquire whether she was so in her younger days ; the inquiry should, have been as to her character-for truth and veracity. At all events, this should have been the principafand first inquiry; but that was not attempted;' the in-as. to- any particulaf immoral conduct, is '-not'admissible . . • ' , • , against a witness. . ...... . - - . _ . ,

2, The deed fpóm Be-úiñs, the soldier,, to ÍJart, -fyas. sufficiently. proved, to go to the jury. The, witnesses were both dead, .and the hand-writing of Visger,, one of the witnesses; was fully proved, and the testimony very satisfactorily .shows, that the name of Bradt,the other.-subscribing witness,’ }vas written by Visger ; this did not vitiate the deed. : One witness ivas enough ; the-certificate-of proof endorsed by Judge Oothout, by which it would appear that Visger swore that Bradt signed his name as. a witness, could, at' all events, only go to impeach .-the credit of’ Visger; this was matter -for the jury, and came.within- their, province,, by the submision of the judge to them,of the question, whetherBevins, executed the deed Or not. But it. ought’ not even to be considered as impeaching Visgér’.s character; for the reasonable-solution was, -as the judge told the jury, that it Ayas the mistake of the officer in the form of the certificate,

--3. The principal question in' the cáse,, howe-yer,-is; as to •the dissent, whether Herman ViscHer Hart had .-three} .years', after he arrived to the agé of 21 to enter such dissent, or only- two years, - If the. dissent^ was not, duly entefe'd, the award,. in-: favour, of the title, under which the lessor of the plaintiff-claims, was established, and became conclusive-, by the-award of the Onondaga commissioners; But, with respect to the. time which Hart had to enter his dissent; I cannot see how an^ doubt, can' exist : it must depend upoii the construction ta1 be given to the act;.and whether'this act be reasonable and just, or founded upornspund policy, or not, -we are notfat liberty tp' inquire.- If it can receive but-Ope interpretation, .we are bound, to give that to it, By the third section (1 N. R. L. 213.) the award is declared conclusive after the expiration of two years from the making thereof, unless a dissent shall be entered, and notice thereof given to the commissioners, or filed in the clerk’s office of Onondaga county, and unless the person dissenting-, .|f not-in the-actual .possession,'shall, within- three yearSj Compience a suit at law or inequity, to recoyer the lands, or .estas* blish his right to the same, and prosecute such suit to effect. But the 3th section contains a proviso, that neither this act, nor any thing .therein contained, .shall extend, of be construed to. the prejudice of any persons under the age of 21 years, if such persons shall? within three years after cqming,tq< the- age of 2Í years, make their dissent, and bring their suit, and prosecute the same to effect, as aforesaid. No reasonable construction can fee given to this proviso, without considering it as extending the time 'for entering the dissent, in case of infant claimants, to three years, instead of two, as is required by the. third section, in cáse of adults. Upon any other interpretation, the word three, in the proviso, must be rejected entirely. . The legislature had, undoubtedly, a right to extend the time in favour of infants, if they thought proper, and, indeed, it would seem very reasonable that it should be so done. Two years, in any case, is but a short period for entering a dissent; and the peculiar situation of the. titles to the military land, only would, perhaps, justify the, statute at all. But, considering the time for entering the dissent, in cases coming within the proviso, as extended to three years, then this proviso, and every part of it, is in perfect harmony with the third section. For every thing to be done, after entering the dissent, by persons coming within the proviso, they are referred, to, and are to.be governed .by, the provisions of the third section. But to reject an explicit pro, vision, because reference is made to other parts .of the act, for matters not expressly defined, would be against all sound rules of interpretation. The 8th section expressly provides as to the time within which the dissent is to be entered ; but it is .not pointed out how this dissent is to be entered, or within what time, or where the suit is to be brought. The concluding words of the 8th section,- “ as aforesaid,” refer to these objects, namely, make the dissent, as aforesaid, that is, by giving notice thereof to. the commissioners, or by filing the same in the office of the clerk of Onondaga county, and bring the suit, as aforesaid, that is, within three years, and prosecute the same to effect, as aforesaid, that is, a suit either at law or in equity, to recover the land, or establish, their title to the same, This is the plain and natural interpret tation of the statute, and the one adopted by this court, in the case of Jackson v. M‘Kee, (8 Johns. Rep. 429.,) although this point was not the one then directly before the court. The mor lion for a new trial must, accordingly, be denied.

Motion denied.