Smythe v. Inhabitants of New Providence Tp., Union County, N.J.

• Decision Date: 09 March 1920
• Docket Number: 2499.,2498
• Citation: 263 F. 481
• Parties: SMYTHE v. INHABITANTS OF NEW PROVIDENCE TP., UNION COUNTY, N.J. INHABITANTS OF NEW PROVIDENCE TP., UNION COUNTY, N.J., v. SMYTHE.
• Court: U.S. Court of Appeals — Third Circuit

263 F. 481

SMYTHE v. INHABITANTS OF NEW PROVIDENCE TP., UNION COUNTY, N.J.

INHABITANTS OF NEW PROVIDENCE TP., UNION COUNTY, N.J., v. SMYTHE.

Nos. 2498, 2499.

United States Court of Appeals, Third Circuit.

March 9, 1920

[Copyrighted Material Omitted]

McCarter & English, of Newark, N.J. (Conover English, of Newark, N.J of counsel), for plaintiff in error.

Carroll Sprigg, of New York City, James R. Erwin, of Jersey City N.J., and Albert Massey, of New York City, for defendant in error.

Before BUFFINGTON and WOOLLEY, Circuit Judges, and MORRIS, District judge.

WOOLLEY Circuit Judge.

The facts which form the background of the matters here assigned as error are briefly these:

This suit was brought upon five bonds issued by the Township of New Providence pursuant to an Act of the Legislature of the State of New Jersey entitled 'An Act to authorize certain towns in the Counties of Somerset, Morris, Essex and Union to issue bonds, and take stock in the Passaic and Peapack Railway Company,' approved April 9, 1868 (P.L. of N.J. 1868, page 915). This act is quoted in part and discussed in Bernards Township v. Stebbins, 109 U.S. 341, 3 Sup.Ct. 252, 27 L.Ed. 956; Bernards Township v. Morrison, 133 U.S. 523, 10 Sup.Ct. 333, 33 L.Ed. 766; Montclair v. Ramsdell, 107 U.S. 147, 2 Sup.Ct. 391, 27 L.Ed. 431.

In declaring on the bonds, the plaintiff pleaded the statute, and, in conformity with its requirements, averred the consent of taxpayers of the Township to the issue of bonds, evidenced by affidavits of the Township commissioners, and affidavit of the Township assessor that the assenting taxpayers constituted a majority of the landed property holders; that the bonds were executed by two of the commissioners, but without seals; that they were afterwards registered in the office of the County Clerk and certified by him; that they were issued for public purposes; and were bought by the plaintiff in the public market for a valuable consideration. The defendant pleaded the general issue, statute of limitations, and certain special pleas challenging the validity of the bond issue on grounds which will appear more particularly in the consideration of the matters assigned as error.

Two of the five bonds were excluded from the evidence. The case was submitted to the jury on the remaining three bonds upon testimony for the plaintiff alone, the defendant having declined to introduce any testimony. The jury rendered a verdict for the plaintiff for the principal of the three bonds and interest; whereupon both parties sued out the writs of error now under consideration.

As the bonds sued on purport to be obligations of the Township issued solely by authority of the cited statute, their validity depends, of course, upon their issuance in conformity with its provisions. The many errors assigned are directed chiefly to the court's rulings on evidence tendered in proof of the validity of the bond issue. As these assignments are numerous, and do not always present, when viewed alone, the real questions they raise, we shall discuss them by their subject matter, with reference to which they are quite capable of classification.

Assuming for the present that the plaintiff was a bona fide holder of the bonds, he was required, to entitle him prima facie to judgment, to prove the due appointment of the commissioners and the execution by them of the bonds. Montclair v. Ramsdell, 107 U.S. 147, 158, 2 Sup.Ct. 391, 27 L.Ed. 431; Bernards Township v. Morrison, 133 U.S. 523, 527, 10 Sup.Ct. 333, 33 L.Ed. 766.

The First Question, therefore, is:

Was there competent proof of the due appointment of the commissioners?

The plaintiff's evidence of the appointment of the commissioners consisted of the application by the requisite number of freeholders for the order appointing the commissioners, produced from the office of the County Clerk; the appointment of the commissioners; oaths of the commissioners; and the written consent of the taxpayers of the Township to their appointment; and the affidavit of the assessor that the taxpayers so consenting constituted a majority of the taxpayers in the Township. The Township contends that these papers were improperly admitted in evidence because the signatures of the subscribing witnesses were not proved. They were admitted on the theory that they were ancient documents, and also on proof of the signature of the County Clerk to some or all of these papers by receiving in this trial the testimony of witnesses, since deceased, given at a former trial.

The bonds were more than fifty years old. Instruments of the character of these form an exception to the general rule requiring documents to be authenticated by the testimony of subscribing witnesses, and are provable as ancient documents. In suits on bonds of such antiquity, the subscribing witnesses are presumed to be dead and the rule is strong that such instruments prove themselves. There is, however, an important qualification to the rule, which declares that, in order that ancient documents may prove themselves, they must on their face be free from suspicion, they must come from the proper custody, and be accompanied by some corroborating evidence. 10 R.C.L. 1097, 1098. This suspicion does not mean suspicion of their validity; it means suspicion as to their authenticity. The authenticity of the bonds being the sole question before the court on their tender as evidence, we are of opinion that the rule was fully met and that the bonds were properly admitted.

It is contended further that the commissioners were required by the statute to execute a bond to the Township for the faithful discharge of their duties, that the execution of such a bond is a prerequisite to the valid appointment of the commissioners and to the validity of their subsequent acts, and that there was no evidence that the commissioners ever executed such a bond. We do not think evidence of the execution of a bond of this character is material to the plaintiff's right to recover on the bonds of the Township subsequently issued by the commissioners. A bond executed by them to insure the faithful performance of their duties was a matter between them and the Township. We are concerned here not with their bond but with their acts, the pertinent one being the issuance of the bonds in suit, which show, by endorsement, that the conditions essential to their validity have been complied with. Having proved the due appointment of the commissioners and the execution by them, in fact, of the bonds, it is not necessary that the holder of the bonds

'should, in the first instance, prove either that he paid value, or that the conditions preliminary to the exercise by the commissioners of the authority conferred by the statute were, in fact, performed before the bonds were issued. The one was presumed from the possession of the bonds; and the other was established by the statute authorizing an issue of bonds, and by proof of the due appointment of the commissioners, and their execution of the bonds, with recitals of compliance with the statute. ' Montclair v. Ramsdell, 107 U.S. 147, 2 Sup.Ct. 391, 27 L.Ed. 431; Bernards Township v. Morrison, 133 U.S. 523, 527, 10 Sup.Ct. 333, 33 L.Ed. 766; Bernards Township v. Stebbins, 109 U.S. 341, 3 Sup.Ct. 252, 27 L.Ed. 956; New Providence v. Halsey, 117 U.S. 336, 6 Sup.Ct. 764, 29 L.Ed. 904; Cotton v. New Providence, 47 N.J.Law, 401, 2 A. 253; Mutual Life Co. v. Elizabeth, 42 N.J.Law, 235.

Second Question.

Was there competent proof of the execution in fact of the bonds so as to sustain their admission in evidence?

This question involves several others, the first of which is:

(1) Were the signatures to the bonds and their registration proved?

The registration of the bonds cannot be seriously questioned. As to the signatures of the commissioners, the bonds purported to be signed by two of the three commissioners in 1868. Both were dead at the time of trial. Their signatures were proven by the testimony of two witnesses given at a former trial and admitted by stenographer's notes at this trial, although, perhaps, it may be contended that this testimony related only to the signature of one commissioner.

Aside from this testimony, the age of the bonds (having been executed about fifty years ago), the evidence of the preliminaries to their issue, their certification and registration, make them admissible in evidence as ancient documents. There is also evidence by one witness that the bonds had been registered by him and that he had certified the fact of their registration by endorsement on the bonds and recognized the signatures thereto.

In addition to this evidence, the signatures of the two commissioners appeared in their oaths of office admitted in evidence. These exhibits, together with the bonds signed by the commissioners, were submitted to the jury and were before them for comparison. Such comparison is authorized by the Act of Congress, approved February 26, 1913, 37 St.at Large, 683, c. 79, U.S. Comp. St. 1916, Sec. 1471, p. 2367, commented on in Maxey v. United States, 207 F. 327, 330, 125 C.C.A. 77, which extends the rule of the common law in regard to the comparison of handwritings, Withaup v. United States, 127 F. 530, 62 C.C.A. 328, and provides:

'In any proceeding before a court or judicial officer of the United States where the genuineness of the handwriting of any person may be involved, any admitted or proved handwriting of such person shall be competent evidence as a basis for comparison by witnesses, or by the jury, court, or officer conducting such proceeding, to prove or disprove such genuineness.'

We regard the evidence offered as prima facie proof of the due execution of the bonds by the commissioners purporting to sign them.

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