61 S.E. 447 | N.C. | 1908
Plaintiff sued the original administratrix of W. L. Fallen, deceased, for the recovery of the amount due on a bond and due bill set forth in the complaint. The administratrix having died, Thomas B. Knight *417 was appointed administrator de bonis non and made party defendant. Plaintiff alleged that defendant's intestate, on 16 November, 1896, executed his bond, under seal, obligating himself to pay (568) plaintiff, six months after date, $2,000, with interest from date; that no part of said bond had been paid save the sum of $40, 13 February, 1897; that on 9 April, 1897, said intestate executed his due bill to plaintiff for the sum of $225 for borrowed money, and that no part thereof had been paid. Plaintiff set forth other indebtedness, which was eliminated by the verdict of the jury. Defendant denied the execution of either bond or due bill, and denied the averment that they had not been paid.
At the proper time defendant tendered the following issue: "Did the plaintiff fail or refuse to list for taxation the $2,000 note described in the complaint with the view to evade the payment of the taxes thereon?" He tendered an issue in the same form in regard to the due bill. His Honor declined to submit the issues, and defendant excepted.
The following issues were submitted to the jury:
1. Did the defendant's intestate execute the $2,000 note sued on, as alleged?
2. Has the whole or any part thereof been paid?
Similar issues were submitted in regard to the due bill. Plaintiff introduced a number of witnesses who testified in regard to the business relations between plaintiff and defendant's intestate. Several witnesses testified that they were acquainted with Fallen's handwriting, and that the signatures to the note and due bill were in his handwriting, and that the "body" of the note was in plaintiff's handwriting. On cross-examination, other papers "purporting to be in Fallen's handwriting" were shown the witnesses, and they were examined in regard to certain letters on the several papers and asked their Opinion respecting their similarity, etc. H. T. Pratt, a witness for plaintiff, was shown the note and requested to look at the letter "L" in the signature of W. L. Fallen and the "L" in the name of E. L. Martin on the body of the note and give his opinion whether the two letters were not in the same handwriting. To this question be answered: "I can see a difference in the two (566) letters." He was then asked to "point out to the jury your points of difference." The defendant's counsel asked the witness to take the exhibit or paper to the jury box and point out to them the difference. To this plaintiff's counsel objected. His Honor sustained the objection. Defendant excepted. The same request was made in regard to other witnesses, and exceptions noted to the ruling of his Honor. The bond and due bill were introduced in evidence.
Defendant introduced a number of witnesses, who testified in regard to the business relations between plaintiff and his intestate, tending to *418 show that defendant's intestate did not execute the note and due bill, nor owe the amount named therein. Among other witnesses introduced by defendant was Dr. J. H. Ellington, who testified that he was acquainted with the handwriting of Fallen. He was shown several papers, and expressed the opinion that they were in his handwriting. He was then shown the bond, and expressed the opinion that the signature was not in Fallen's handwriting. The following questions were asked Dr. Ellington: "I ask you to look at the letter `L' in the signature of W. L. Fallen to the bond and say if in your opinion the letter `L' in the name of F. L. Martin in the body is in the same handwriting." Plaintiff objected. Sustained. Defendant excepted. "Please look at the `L' in the name of W. L. Fallen at the end of the bond and at the letter `L' in the name of F. L. Martin in the body of the bond and say in your opinion whether or not they are alike." "Very much alike." The witness was then asked to take the papers and "show the jury why you think they are alike." The plaintiff objected. Sustained. Defendant excepted.
The defendant introduced James A. Scales, who testified that he was register of deeds of Rockingham County. Plaintiff lives in said county. Witness was custodian of the original tax list. The lists from (567) 1896 to 1905 were burned when the courthouse was destroyed. "I have with me the original tax list of E. L. Martin for 1906. I have here the tax books of my county for 189-7, 1898, 1899, 1900. The original abstracts or lists for three years were burned." The defendant proposed to prove by the introduction of the tax books for the years 1897-1900 that F. L. Martin did not list for taxation a $2,000 note or a $225 due bill. The court declined to admit the tax books and defendant excepted.
The defendant offered in evidence the original tax abstract for the year 1906 in order to prove that no such note or due bill was listed. This was also excluded upon plaintiff's objection. Defendant excepted. There was no exception to his Honor's instructions to the jury. Verdict for plaintiff. Motion for new trial, for errors in refusing to submit issue tendered by defendant and rejecting testimony. Motion denied. Judgment. Appeal by defendant. After stating the facts: The defendant's exception to his Honor's refusal to submit the issue in regard to the tax list is based upon the contention that, by Revisal, sec. 5219, subdiv. 11, and Laws 1907, *419 ch. 258, sec. 32, a failure to list with a view to evade the payment of taxes on solvent credits prevents their recovery by an action at law or suit in equity in the courts of the State until they are listed and taxes paid thereon. The matter involved in the issue is not set up or pleaded in the answer as a bar to the action, and was not therefore issuable. Only matters alleged and denied or new matter alleged in the answer by way of defense are to be submitted to the jury by specific issues. Without passing upon the question whether the failure to list the note and due bill for taxation, "with a view to evade the payment of taxes (568) thereon," is an affirmative defense which must be set up in the answer, or whether it may be taken advantage of upon the general denial, we entertain no doubt that, unless pleaded, it may not be made the subject of an issue. As has been frequently said by this Court, issues arise upon the pleadings. It will be observed that the statute does not make the failure to list solvent credits an absolute bar to their recovery, but provides "that they shall not be recoverable . . . until they have been listed and taxes paid thereon." It would seem that the failure to list does not destroy the cause of action, but postpones recovery thereon until they are listed and the tax thereon is paid. It would be but fair to bring the matter to the attention of the court by some appropriate pleading, to the end that the creditor may either list and pay the tax or show that the "note, claim, or other evidence of debt" is not "subject to assessment and taxation," as for instance that it is not solvent, or that plaintiff was himself indebted in a larger amount than all of his solvent credits [Revisal, secs. 5219 (5), 5227], or that for any other reason he was not required to list and pay tax thereon. It was not the purpose of the Legislature to release the debtor for failure to list by the creditor, but to postpone the recovery of the debt, if subject to taxation, until the tax is paid. It is not clear that the liability to assessment is to be tried by the jury. It may be more convenient for the court to inquire into it. We note the suggestion that instead of delaying the trial the court proceed to judgment and order a stay of execution until the debt is listed and the tax paid thereon. This provision has recently been placed in our revenue law and, so far as we are advised, has not before been brought to the attention of the Court. Its interpretation is not before us, and we forbear saying more than is necessary to a decision of the exception. His Honor correctly declined to submit the issue.
Plaintiff introduced H. T. Pratt, who testified that he was acquainted with the handwriting of Fallen. He was shown the note and the due bill, and testified that the signatures were "those of Fallen." (569) The body of the note was in the handwriting of the plaintiff E. L. Martin. This, we understand, was conceded. Defendant, upon cross *420
examination, asked the witness to look at the letter "L" in the signature and at the same letter in the body of the note and say whether they were not the same handwriting. He answered: "I can see a difference in the two." lie was asked to point out to the jury the difference. The defendant's counsel asked the witness to take the note to the jury box and point out to the jury the difference. Plaintiff objected. His Honor sustained the objection, and defendant excepted. Dr. Ellington, a witness for defendant, having testified that he was acquainted with Fallen's, handwriting, was asked to examine the same letter in the body of the note and in the signature. He said: "They are very much alike." In his cross-examination he was shown a paper, "No. 1," by plaintiff, containing W. L. Fallen's signature in two places. The witness testified that the first signature was in Fallen's handwriting; the other was not. Upon redirect examination defendant's counsel asked him to take the paper and show the jury why he did not think that the signatures were in the same handwriting. This was objected to and the objection sustained by his Honor. Defendant excepted. The question presented upon these exceptions, and others of the same character in the record, is whether, under examination in chief or cross-examination, a nonexpert witness, having testified that he was acquainted with the handwriting of the person alleged to have signed the paper in controversy, may, after expressing an opinion in regard to it and being shown a writing conceded to be genuine, show two papers to the jury and by making comparisons between them explain and point out to the jury the similarity or difference, as the case may be. Defendant's counsel insist that this question has not heretofore been decided by this Court. Plaintiff's counsel insist, on the contrary, that it is within the (570) rule laid down in Outlaw v. Hurdle,
The question in regard to the right of the jury to compare handwriting in the trial of cases wherein the genuineness of a paper writing (572) or signature is involved first arose in this Court in 1853. Outlaw v. Hurdle,
The English statute is the result of the largest experience and observation by judges and lawyers. It is well guarded against dangerous experiment, but opens the door to safe, reliable information. A discussion of its provisions may be found in 3 Taylor on Ev., sec. 1869, etc. In construing the New York statute. Van Brunt, (580)P.J., says: "Therefore, it is apparent that the submission of a writing to a jury must be in connection with the testimony of witnesses in regard to the validity or authorship of the various handwritings, and that, independent of the examination of witnesses, such handwritings cannot be submitted to the jury for the purpose of arbitrary comparison by them. In other words, the handwritings can only be inspected by the jury in aid of the testimony of witnesses in reference to the authorship of the handwritings in question." People v. Pinckney, 67 Hun., 428. With this limitation upon the right of the jury to examine and compare handwriting, we can see no reasonable ground for withholding it. The subject is of sufficient importance to justify the attention of the Legislature. The questions regarding the competency of witnesses to testify in regard to handwritings, *428
and the standard of comparison, are settled by a number of well considered decisions, the last being Tunstall v. Cobb,
Defendant proposed to introduce tax books and original lists for the purpose of showing that no note or due bill was listed by plaintiff for taxation. While the record does not so state, we assume from the (581) argument that it was proposed to show that no solvent credits were listed by plaintiff for the years to which the proposed list related. Tax lists have been admitted in actions for the recovery of land to show that the party against whose claim they were used did not list the land, and draw from the failure to do so the inference that lie was not claiming to own it. Thornburg v. Mastin,
New trial.
Cited: Nicholson v. Lumber Co.,