Univ. of Illinois v. Spalding

• Decision Date: 03 December 1901
• Citation: 51 A. 731,71 N.H. 163
• Parties: UNIVERSITY OF ILLINOIS v. SPALDING et al.
• Court: New Hampshire Supreme Court

51 A. 731

71 N.H. 163

UNIVERSITY OF ILLINOIS

v. SPALDING et al.

Supreme Court of New Hampshire. Hillsboro.

Dec. 3, 1901.

Exceptions from Hillsboro county.

Action by the University of Illinois against Solomon Spalding and others. Trial by jury, and case transferred on plaintiffs' exceptions. Exceptions overruled.

On January 18th the plaintiffs filed a motion to set aside the verdict as against the law and the evidence. Upon application first made on April 25th, a hearing was had upon this motion at the May term of the superior court before Wallace, C. J., and Mr. Justice Parsons, of the supreme court, who attended by request. The defendant excepted to any action by the latter, on the ground that he was not a justice of the court having jurisdiction of matters formerly cognizable at trial terms, and claimed that the plaintiffs had waived the exceptions taken at the trial by delay and noncompliance with the fifty-third rule of court. It was found that the exceptions were not so waived, and that under the circumstances the rule ought not to be enforced against the plaintiffs. The motion to set aside the verdict was denied. The stenographic notes of testimony given by the principal upon the bond in a suit against other sureties were used, by agreement, as a deposition. The witness, having identified the signature of the defendant upon the bond, and having testified generally in behalf of the plaintiffs, was asked upon cross-examination if he knew of any defense to the bond, and replied in the negative. He was then shown a letter which he admitted was written by him to the defendant's attorney, and, after examining it, said that he did know of a defense available to the present defendant, which he thought would be a valid one. This portion of the cross-examination was read, subject to the plaintiffs' exception, and was admitted with an instruction that it was material only as bearing upon the credibility of the witness. The letter referred to was offered in evidence by the defendant and excluded. The defendant's signature as surety and the breach of the bond were admitted. The defense was that after the bond was signed, and before it was delivered to the plaintiffs, the name of one surety was erased and another written over it, and that the appearance of the signatures was such that ordinary care would have disclosed the erasure and substitution to the plaintiffs before acceptance of the bond. An enlarged photographic copy presented faint lines of the writing alleged to have been erased. The plaintiffs claimed that the erasure was of a part of the defendant's name accidentally written by him upon the line below his full signature, while the defendant denied that the words erased were in his handwriting. For the purpose of comparison the defendant introduced in evidence his signatures written upon stock certificates, and sworn to be genuine by him and by the treasurer of the corporation. The plaintiffs excepted to this evidence on the ground that the signatures were neither admitted to be genuine, nor found in papers otherwise in the case, and, further, that they appeared to have been written at a date subsequent to the execution of the bond. It appeared that the defendant was 89 years of age, and that he was liable, if at all, for an amount exceeding the whole of his estate. In urging a careful consideration of the case, because of its importance to the defendant, his counsel, in closing argument, said that the case involved the defendant's life, as well as his property. Upon objection being made, and an exception claimed, counsel withdrew the remark, requested the jury to disregard it, and apologized for the utterance; and the presiding justice considered that the error, if any, was thereby cured.

Charles J. Hamblett, Charles H. Burns, and John S. H. Frink, for plaintiffs.

George B. French and Oliver E. Branch, for defendants.

REMICK, J. 1. The Judiciary system was not reorganized by the act of March 10, 1901, to legislate anybody out of court if the new system has any advantages over the old, it was intended that pending as well as future cases should have the benefit of them. If the plaintiffs have lost the right of appeal, it is owing to their own laches, not to legislative nonsuit The finding of the presiding justice exonerates the plaintiffs from fault in this behalf, and the exception based upon this ground is therefore overruled.

2. The questions and answers objected to in the stenographer's notes of the testimony of Charles W. Spalding were, in view of his testimony as a whole, as shown by the stenographic minutes before us, competent on cross-examination, and as bearing on the credibility of the witness. This was the ground upon which they were admitted, and no exception lies.

3. The remark of the defendant's counsel, in argument to the jury, that the case involved the defendant's life as well as his property, was immediately withdrawn and apologized for, and the presiding justice has found "that the error of the remark, if any, was cured." The exception must therefore be overruled. Burnham v. Butler, 58 N. H. 568; Bullard r. Railroad Co., 64 N. H. 27, 5 Atl. 838, 10 Am. St. Rep. 367; Jordon v. Wallace, 67 N. H. 175, 32 Atl. 174; Noble v. City of Portsmouth, 67 N. H. 183, 30 Atl. 419; Heald v. Railroad, 68 N. H. 49, 50, 32 Atl. 174; Pritchard v. Austin, 69 N. H. 367, 46 Atl. 188; Greenfield v. Kennett 69 N. H. 419, 45 Atl. 233.

4. The exception next considered presents the question whether signatures of the defendant on papers otherwise irrelevant and not admitted to be genuine, were admissible for the mere purpose of comparison with the signature in dispute. By the general rule of the common law, comparison by juxtaposition was limited to the writing in issue and writings in the case for other purposes. The introduction of writings otherwise irrelevant for the mere purpose of comparison was permitted only when the writing in issue was so ancient as not to admit of proof based on knowledge derived from seeing the party write, or its equivalent. 1 Greenl. Ev. § 580; Lawson, Exp. Ev. 323, 329; Rog. Exp. Test § 136; 15 Am. & Eng. Enc. Law (2d Ed.) 264, 265; Bromage v. Rice, 7 Car. & P. 548; Perry v. Newton, 5 Adol. & E. 514; Mudd v. Suckermore, 5 Adol. & E. 703; Griffits v. I very, 11 Adol. & E. 322; Hickory v. U. S., 151 U. S. 303, 14 Sup. Ct. 334, 38 L. Ed. 170. This general rule of the common law has been adopted and is enforced in its integrity in the United States courts. Strother v. Lucas, 6 Pet 763, 8 L. Ed. 573; Rogers v. Ritter, 12 Wall. 317, 20 L. Ed. 417; Moore v. U. S., 91 U. S. 270, 23 L. Ed. 346; Williams v. Conger, 125 U. S. 397, 414, 8 Sup. Ct. 933, 31 L. Ed. 778; Hickory v. U. S., 151 U. S. 303, 14 Sup. Ct 334, 38 L. Ed. 170; Stokes v. U. S., 157 U. S. 187, 15 Sup. Ct 617, 39 L. Ed. 667. It has also been adopted in most of the states. 1 Greenl. Ev. § 581; Rog. Exp. Test. § 137; Lawson, Exp. Ev. 371, 407; 15 Am. & Eng. Enc. Law (2d Ed.) 265. The tendency, however, of legislation and judicial decisions, is away from this strict and narrow rule, toward the more liberal one permitting comparison with any writing established to be the writing of the party whose hand is in issue, whether otherwise relevant or not, and without reference to the age of the particular writing in controversy. 15 Am. & Eng. Enc. Law (2d Ed.) 265, 269. The rule has been so enlarged in England by statute (17 & 18 Vict c. 125, § 27); also by statute in many of the states of this country. 15 Am. & Eng. Enc. Law (2d Ed.) 270. In other states the same result has been reached by judicial decisions. Rog. Exp. Test. § 138 et seq.; Lawson, Exp. Ev. 371; 1 Greenl. Ev. § 581; 15 Am. & Eng. Enc. Law (2d Ed.) 267, 268; Woodman v. Dana, 52 Me. 9; Adams v. Field, 21 Vt. 256; Moody v. Rowell, 17 Pick. 490, 28 Am. Dec. 317. While more or less has been said to the same effect by the courts in this Jurisdiction, much not in terms overruled has also been said to the contrary. Myers v. Toscan, 3 N. H. 47; Bowman v. Sanborn, 25 N. H. 87; Reed v. Spaulding, 42 N. H. 114; State v. Shinborn, 46 N. H. 497, 88 Am. Dec. 224; State v. Hastings, 53 N. H. 452; State v. Clark, 54 N. H. 456; Carter v. Jackson, 58 N. H. 156. In Myers v. Toscan it was held that comparison was permissible only in connection with evidence based on direct knowledge of the handwriting in question, and that, in the absence of such primary evidence, comparison was wholly inadmissible. No mention is made of the well-established common-law exceptions in favor of writings otherwise in the case, and ancient writings not susceptible of direct proof. The exclusion, so far as appears, was general, subject only to the exception first declared. In Bowman v. Sanborn it was decided that comparison with genuine writings in the case for other purposes was permissible, and without proof based upon direct knowledge,—to this extent modifying the doctrine of Myers v. Toscan. The facts in Bowman v. Sanborn bring it clearly within the common-law exception, and the opinion is a distinct and unqualified recognition of the general common-law rule of exclusion. In Reed v. Spaulding the common-law rule was again followed. The court said: "It is only between signatures admitted to be genuine, and which are in evidence before the jury, and the one in question, that the expert is allowed to institute a comparison and give an opinion." A second case of Reed v. Spaulding, decided in Sullivan county, December law term, 1862, and not reported, is referred to in State v. Hastings as deciding that writings "might be introduced anew for the purposes of the comparison, as well as to use those already on the case for other purposes." It was incredible that a decision modifying so essentially the common-law rule, and so at variance with all former decisions of the same court, should have remained unreported; and it appeal's from an examination of the record that the papers used as standards of...