8 Barb. 579 | N.Y. Sup. Ct. | 1850
I. The first ground, on which a new trial is sought, is an alledged error in the admission of the marriage register of Trinity Church in evidence. This was a register that has long been kept at Trinity Church, New-York, containing a record of marriages as far back as 1746, and was proved by the Rev. Doctor Berrian, who is now the rector of the church, and has been since 1830. It appeared from the
The judge overruled the objections, and admitted the evidence. The book was then received, and the plaintiff's counsel read from the register for the year 1791 several entries, among which was that of the marriage of Anthony Maxwell and Eve Plainer, under date of December 17, 1791. The entry was signed “ Sam’l Provoost,” in his hand-writing. Immediately preceding the entries of marriages made by Samuel Provoost is the following entry: “ 1784. Register of marriages continued by Samuel Provoost.” And then follows a column of entries made by him reaching down as late as 1800. The admission of this evidence is now relied on by the defendant on a motion for a new trial.
The first ground of objection arises out of the evidence of Dr. Berriau. He testifies that the register is under the control of the rector of the church, and that it is his duty to keep the same; but that some of the entries appeared by the hand-wriling to have been made by John Young, while he was clerk of the church, in the time of Bishop Moore. No such irregularity, however, affects the register in the time of Bishop Provoort, and cannot apply to the entries made during his administration. Without saying what the effect might be, if it were a question arising upon an entry made by the clerk, it is quite clear that the irregularity, if it be one, has no application to the entry under consideration. That is proved to be in the hand-writing of Bishop Provoost.
The second ground of objection is founded on an erroneous view of the law. Dr. Berrian testified that “ since he had been rector of the church, it had been the practice for each minister
The third ground of objection assumes that the register is only evidence of pedigree, in any case. This can not be so. It is laid down in Greenleaf, (vol. 1, § 493,) that a register of a marriage is evidence of the fact of the marriage, and of the time when it was solemnized. These are all the specific objections taken on the trial, and of course all which can be made the ground of the motion for a new trial. But it wTas said on the argument that a register was not evidence in this state where there is no statute regulating registers of marriages and making them evidence. But that is a mistake. It is settled that registers are evidence, on principles applicable to this kind of testimony, without reference to any law declaring them to be evidence. (1 Greenl. Ev. 483, 484, 493. See also Stark. Ev. 174, pt. 2, § 50 ; 5 Cowen’s Rep. 237; 5 Peters, 470.)
II. An objection was taken to the admission of the record of the deed executed by Anthony Maxwell to Jedediah Sanger, on the ground that the certificate of proof does not show that the master in chancery, who took the proof knew the subscribing witness. The deed was executed on the 17th of November, 1792, was proved on the 25th of November, 1793, and was re
. But in 1813 the “ act concerning deeds” was revived, and by the first section it was provided that “no proof of a deed should be taken unless the officer taking the same should know the person making such proof, or have satisfactory evidence that he was a subscribing witness,” &c. ail of which was to be inserted in the certificate. (1 R. L. 369, § 1.) On the 4th of February, 1814, an act was passed, forbidding any deed conveying any lands granted by this state as military bounty lands to be recorded if the same had been executed on or before the first of May, 1797, unless the same had been proved or acknowledged pursuant to the first section of the act last mentioned. On the 14th of April, 1820, it was enacted (Sess. 43, ch. 248, § 3,) that no deed of military bounty lands executed on or before the first of May, 1797, should he read in evidence, unless the same had been acknowledged or proved in the manner directed by the act of the 12th of April, 1813. The premises in question are a part of the tract known as the military bounty lands, and it must, be acknowledged that the deed in question falls within the letter of the act of the 14th of April, 1820. This very question has been before the court, and the act of the 14th April, 1820, has received a construction consonant to the soundest rules of inter
III. The justice holding the circuit ruled that there was prima facie evidence of the fact of the marriage, and that there was no question of fact for the jury upon any of the points presented by the counsel. We have already seen that the register is prima facie evidence of th & fact and time of the marriage; and the evidence of Charles Belden and Stephen A. Coffin leaves no doubt as to the identity of the parties, It appeared in evidence that the parties lived in Poughkeepsie; that they went to New-York to be married; that they returned, and were received in society as husband and wife, and lived together as such till the year 1825, when the husband died.
The evidence of the witnesses Belden and Coffin would be abundant to prove the existence of the marriage, but perhaps not the time. That defect, however, is supplied, and the time is fixed by the register; and the register has not been contradicted ór impeached.
There were other points taken at the circuit, but they have been abandoned by the counsel here. We see no ground for granting a new trial.
New trial denied.