State ex rel. Wilson v. Williams

8 Ind. 191

• Court: Indiana Supreme Court
• Decided: November 28, 1856
• Status: Published

Opinion

Stuart, J.

Prosecution for bastardy by Elizabeth Wilson, against Jonathan Williams, administrator of James Williams, deceased, the alleged father of the child. Motion to dismiss the complaint sustained by the Court: exception and appeal.

The only question in the case is upon the construction of the following statute, viz.:

“In case of the death of the putative father of .such child, either before or after the commencement of prosecution, and after the preliminary examination before the justice, the right of action shall survive, and may be prosecuted against the personal representatives of the deceased with like effect as if such father were living, except that no arrest of such personal representatives shall take place, or bond be required.” 2. N. S. 490, s. 22.

The provision for the survivor of the right of action js not as lucidly expressed as it might he. But we think 0f the legislature was that the right of action gbould survive generally. It may he read to that effect in various ways. “And” sometimes means “or” and vice versa. Rees v. Abbott, Cowp. 832. Or, supplying the ellipsis, it might read, “ and either before or after the preliminary examination,” &e. Thus is every clause made effective, and the whole section stands, with no great violence to the language.

J. W. Gordon and W. D. Harrison, for the State. D. M’Donald, for the appellee.

At all events, the Court could not think of letting the subsequent, incoherent, and obscure phraseology of the latter clause, control and substantially defeat the-clear and explicit language of the former clause. If either has to be rejected, let it be that which is less clearly expressed.

This will be in accordance with a former ruling of the Court on a similar point. Thus, it is said that the ambiguous phrase with which the section concludes can have no weight against the explicit language of the precedent matter. If that -phrase cannot be reconciled it must fall.” Dickerson v. Nelson, 4 Ind. R. 280.

It is only when the subsequent clause of a statute has the combined advantage of equal clearness as well as position that it will control the former. It would be a poor rule to reject what is clear, in order to give effect to what is obscure. The action is well brought under the statute.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &e.’