10 N.H. 171 | Superior Court of New Hampshire | 1839
The court are of opinion that the paper dated October 17, 1833, with the figures upon it in the hand writing of the defendant, was competent evidence to submit toa jury, to show, in connexion with notes and other papers then taken up, the terms of settlement and the computation of interest made by the parties on any debts shown to have ex-existed comparing in amount with the sums on said paper.
Any evidence, however, resulting from such paper, in the handwriting of the plaintiff, is inadmissible, as there is no evidence tending to show that such entry was made in the presence of the defendant, and with his consent. But such entry may have been at any subsequent period, for the purpose of meeting the necessary facts to make out a defence in this case.
The same remark applies to the introduction of the plaintiff ⅛ books, which are introduced to sustain the paper by a comparative entry, which entry may also have been made at any subsequent period, to sustain such paper. The rules of evidence are such as not to place it in the power of a party to make evidence in that manner for himself. Could the plaintiff show that no such alteration had taken place, and that the books remained in the same state as when the corresponding figures were made on the paper in the defendant’s hand writing, at the time of settlement, it then might be a matter for the jury to say whether the figures did not refer
The entry on the cash book, to the credit of the defendant, may perhaps be an exception to this rule ; as the entry there is against the interest of the plaintiff, and goes strongly to negative any idea of having been made with a design to the necessary evidence of this case. If there Is upon the book evidence tending to show that this entry was made at the time it purports to have been made, and if corresponding figures were found on the paper in the hand writing of the defendant, with interest cast thereon, it would seem to furnish evidence that the computation made by the defendant was in this respect founded on the item in the plaintiff’s book ; and to this extent may tend in part to show the basis on which the note rvas made up.
In addition to the testimony of the paper and books, evidence was given as to a suit on this same note in favor of one Henry Burley against the present plaintiff, in which suit usury was plead and the plaintiff became nonsuit. What interest Henry Burley then had in the note does not appear. He might at that time have had some qualified interest in the note ; and, rather than have a controversy in its collection, have become nonsuit and relinquished it to the defendant. Were it shown that the defendant was the actual party in interest in the suit, Henry Burley against the plaintiff, and that by his direction it was dismissed after usury was plead, such evidence would be very slight, if admissible, to show that the note was given for an usurious consideration. But there is no evidence here connecting the defendant with the former suit, and the evidence as to such action is clearly inadmissible. In attempting to show that usury was set up as a defence in this action, a paper was filed in the case, which was testified to as being a substantial copy of the plea. No paper evi
The testimony then is incompetent in four several respects:
The paper offered, bearing date October 17, 1833, is inadmissible, so far as regards the minutes on it in the plaintiff’s hand writing.
The plaintiff ⅛ general books of account are inadmissible.
The testimony as to the action in favor of Henry Burley is inadmissible, without farther testimony connecting the defendant with said suit.
The substantial copy of the plea of usury offered in evidence was inadmissible.
For these several reasons the verdict must be set aside.