| N.J. | Sep 15, 1843
No less than twenty-one errors have been assigned upon the record in this cause; three of them upon objections to evidence, taken at the trial, which were overruled by the judge before whom the cause was tried ; and the remaining eighteen upon the charge delivered by him to the jury. Before I proceed to examine the alleged errors, I must enter my solemn protest against the manner in which the bills of exceptions in this case have been drawn, and in ■ which errors have been assigned on the charge of the court.
The judge, before signing the bills, ought to have seen that the exceptions, and the grounds of their exceptions, were precisely and only such as had been taken and stated at the trial of the cause; whereas, upon looking into the bills, no grounds or reasons for the exceptions, are stated; nor does it appear that the attention of the court was called to any specific point in the charge. The bills simply state the evidence offered ; that it was objected to, that the court sustained or overruled the objection, and that thereupon an exception was taken ; without stating in any way, what was the ground of the objection. So too as to the charge. The whole of it is excepted to in gross, without stating the ground of such exception. I do not now recollect whether I perused the bills in this case, or not before I ’sealed them. If I did not, it was because I took it for granted, that nothing would be assigned for error, but such matters as had been presented to my consideration in the court below, and iu relation to which I had specifically expressed an opinion.
Surely it will not be pretended, that it is sufficient for a party to say, “I object,” and then, if the judge overrules the objection, to take a bill of exceptions; and thereupon to assign and maintain error for reasons, which, if they had been presented to the judge, might have changed his opinion; or the ground of which objection might have been obviated at the moment. Such a doctrine would imply omniscience in a judge; or at least an
If such were not the rule of law, there would be no end of litigation; and a judge would never know how to charge a Jury. In a cause involving a variety of legal points, the force and operation of one depending upon the decision of another, and all to be settled in reference to the evidence, the Judge’s charge must be taken as an entire thing; it must be understood as a whole; his meaning must be collected from the whole charge taken together. But if a party may take sentence by sentence, separating them from each other, and assign error upon each of them in their abstract and disconnected meaning, as was done in this case, a Judge may be made to stultify and contradict himself. A clause or sentence, in relation to one point in a cause, taken by itself, and as if it constituted the whole charge, may be easily shown to be erroneous; but when read in connection with the rest of the charge, and explained and qualified by what precedes and follows, may be perfectly correct and complete as a whole.
To require a Judge, in stating every different aspect in which a case may be viewed, and all the different results that may be contingent on certain hypotheses, to repeat the “ ifs,” “ if this,” and “ if that,” would impose upon him an onerous and interminable task, and after all would leave him probably more unintelligible than if he put the case before the Jury upon a plain statement of the law of the whole case in a charge, which taken and considered as a whole, could not fail to be understood by the Jury.
These latter remarks have been made, because, errors have been assigned, in this case upon different clauses of the charge, treating them as separate and distinct annunciations of law, independent of the context, and unexplained and unqualified by what preceded and followed such clauses.
In Allen v. Smith, 7 Halst. 168, Chief Justice Ewing said, “ the ground taken on the motion for a nonsuit in the court be
Mr. Justice Ford, in Coxe v. Field, 1 Green 218 speaks to the same effect; and he adds, “ a bill of exceptions is a statement of the point on which the oourt below gave an opinion,” so, 3 Bl. Com. 372. “ If the judge mistake the law, counsel may require him to seal a bill of exceptions, stating the point wherein he is suppose to err.”
This same doctrine was reiterated by this court in Williams v. Sheppard, 1 Green 78, and in Ludlam v. Broderick, 3 Green 275.
In Blinde’s lessee v. Longworth, 11 Wheat. R. 209, the law apon this subject, and the reasons of it are plainly indicated by Mr. Justice Thompson by whom the opinion of the court was delivered.
If a witness is called, or books of account, or any other matter is offered in evidence, and the adverse party interposes an objection, he must assign a specific reason why the witness or evidence ought not to be admitted and his bill of exceptions, if the evidence is received, ought to state the specific grounds of objection ; and on argument in error, he should be confined to that particular ground of objection, and not be at liberty to discuss other reasons for rejecting the evidence, which, if they had been assigned in the court below, might have been deemed sufficient by the judge, or obviated by the party offering the evidence. A contrary practice would be calculated to mislead the judge, and ensnare the opposite party.
In Van Gorden v. Jackson, 5 Johns. 440, 467 in error, the Chancellor says, “a bill of exceptions was given, not to draw the whole matter into examination again, but only the points tc which it was taken; and the party must lay his finger on those points.
In Fries v. Jackson, 8 Johns. 495, the same language is repeated, and the same chancellor, after stating the four exceptions that had been taken in that case, goes on to say, “ these points have been precisely stated in the court below, as reasons against
In the case now at - bar, the plaintiff has, by a prout, spread the, whole of the charge delivered to the jury on the record, and then, as I have already remarked, disjointed the charge, and assigned some seventeen or eighteen errors upon different clauses of it, and all this without having called the attention of the court below, to any of these supposed errors in the charge, and without its appearing on the bill, that those parts of the charge, now complained -of, were excepted to at the time. But that it may not be drawn into precedent, I beg leave here to state, that such a'practice, is not only dangerous to the rights of parties but subversive of the very principles upon which appellate jurisdictions are founded. It is converting a writ of error into a new trial upon the merits of the case, instead of a review of the legal points raised and discussed in the court below.
The Supreme Court of the United States has several times expressed its marked disapprobation of the practice referred to. In Evans v. Eaton, 7 Wheat. 426, Mr. Justice Story takes occasion to say, that the principal arguments are against the charge given by the Circuit Court in summing up the cause to the jury. The charge is spread in extenso upon the record, a practice which is unnecessary and inconvenient, and may give rise to minute criticisms, and observations upon points incidentally introduced for purposes of argument or illustration and by no means essential to the case. In causes of this nature, we think the substance only of the charge is to be examined; and if it appears upon the whole, that the law was justly expounded to the jury, general expressions, which may need and would receive qualification, if
This practice again came under the notice of the Supreme Court of the United States, in Pennock et al. v. Dialogue, 2 Peters 1, 14, and again in Carver v. Jackson, 4 Peters R. 80, in which, among other things, they say, “ We take this occasion to express our decided disapprobation of the practice of bringing the charge of the court below, at length before this court for review. It is an unauthorized practice, and extremely inconvenient both to the inferior and the appellate court. With the charge of the court to the jury upon mere matters of fact, and with its commentaries upon the weight of evidence, this court has nothing to do.” And Justice Story adds, “ that if, in the summing up, the court should mistake the law, that would justly furnish a ground for an exception. But the exception should be strictly confined to that misstatement, and by being made known at the moment, would often enable the court to correct an erroneous expression, or to explain or qualify it, in such a maimer as to make it wholly unexceptionable or perfectly distinct. We trust therefore, that this court will hereafter be spared the necessity of examining the several bearings of such charges.”
The doctrine, that a party shall not be heard in an appellate court upon a point not taken, or a matter not brought into discussion in the court below, and the exceptions to that rule, will be found stated by Spencer, Chief Justice, and Woodworth, Justice, in Beekman v. Frost, 18 Johns. 558. Spencer, Chief Justice, says, “ if counsel shall for the first time, raise a point here, which might have been obviated had it been made in the court below, he ought not to be permitted to do so ; ” and Woodworth, Justice, said, “ the rule is undoubtedly salutary, that no party shall be permitted to pass the court below in silence, and thereby make this a court of original, instead of an appellate jurisdiction : neither will this court listen to objections, which, if made in the court below, might have been removed, &c.”
So far have the courts gone upon this subject, as may be seen by the case last cited, that if a party will lie by, and suffer judgment to pass against him on a demurrer or special case, he will not be permitted to discuss it afterwards in error.
After what has now been said on this subject, and in the hope
The first error assigned is, that the judge at the Circuit Court, upon the trial of this cause, admitted the plaintiff below to give in evidence a certain conversation between him and the defendant, prior to the execution of the lease from the defendant to the plaintiff. The assignment is as follows; that after the defendant in error, who was plaintiff below, had rested his cause, and after the plaintiff in error, who was defendant below, tad given in evidence the matters stated in the bill of exceptions and had rested his defence, the plaintiff below offered to prove, that in a conversation between the parties, prior to the execution of the lease mentioned in the bill of exceptions, the defendant below agreed that the education of his daughter at the plaintiff’s seminary proposed to be established on the premises, if the same should be taken and hired by the plaintiff, should go towards the payment of the rent to be reserved ; and also to prove that the defendant’s daughter was, in fact, subsequently educated at the same seminary for one year and three quarters of a year; that to this evidence the defendant objected, but the court overruled the objection, and thereupon ruled that the said matters were admissible in evidence, and that it was competent for the plaintiff below to prove any conversations between -the parties, either before or after the execution of the lease, going to show that the education of the defendant’s daughter by the plaintiff, at such seminary, should be allowed in satisfaction of rent, in whole or in part.
In order to understand the point of this objection, it is necessary to state, that this was an action of trespass, de bonis asportails, to which the defendant pleaded not guilty; that on the trial, the plaintiff proved the taking of the goods, as laid in the declaration, and rested; that the defendant then justified the taking, as for a distress for rent due him for the premises, and in support of that defence proved and gave in evidence an indenture of lease, executed by him to the plaintiff, by which it appeared that at the time of taking the goods, there was rent due him, for which he was entitled to distrain, and that the defendant then rested. That thereupon the plaintiff set up and offered to prove, that all the rent due to the defendant, at the time of the taking,
A man cannot distrain for rent, if he cannot maintain an action for it, and whatever the tenant might give in evidence in bar of such action, or in proof of payment, he may give in evidence
In Pynnel’s case, 5 Co. 117, it was held in an action of debt on bond, that a defendant might plead that he paid to the plaintiff a less sum than that mentioned in the bond, or that he delivered to the plaintiff a hawk or robe &c. in full satisfaction of the debt. The same doctrine is more fully and variously illustrated in Peytoe’s case, 9 Co. 79. In the same case we are told that accords are favoured in the law, and the reason is there given. To this point see also Watkinson et al. v. Stokes et al. 5 Johns. 387, 392. Would it not, upon principle and upon the authority of the cases cited, and many others to the same effect are in the books, have been competent for the tenant, in a suit against him for this rent, to have proved, that after the lease had been executed, or after the rent had become due, he had instructed the plaintiff’s daughter in satisfaction of the rent, and that such benefit had been accepted by the plaintiff in satisfaction thereof? I presume this will not be denied. But it is. objected that the conversation or agreement in this case took place during the negotiation for a lease and before it was executed, and that the moment the lease was sealed, it extinguished or blotted out all that had been said by the parties, in the progress of the negotiation. This is true, so far as respects everything that would be inconsistent with, or go to vary the terms of the lease but no further. If therefore the parol agreement, that the education of the daughter should go towards payment of the rent, was offered as a substantive defence in an action for the rent, or as a bar to the landlord’s right to distress, the evidence would be wholly inadmissible. The difficulty is created in the mind of counsel,'by considering an accord and satisfaction, as one entire thing. It is so when executed; but an
Suppose I owe a man one hundred pounds, for which I am going to give him my bond; but before it is executed, it is agreed between us, that if I give him a horse, he shall receive it in full satisfaction of the bond. Eow this agreement can never be pleaded in bar, of an action on the bond. But if I deliver the horse and he accept it in satisfaction, it is a good defence. It is not enough for me, however, to prove that I delivered and he accepted the horse ; I must prove that he accepted it in satisfaction of the bond. But how must this be done ? Can it be proved only by words spoken at the time of the delivery of the horse? May it not be proved from circumstances, or from conversation between the parties at other times, before or after the delivery?— may I not prove that before I gave the bond, he told me that he would accept the horse in satisfaction of it, as evidence to go to the jury, that when I delivered to him, and he accepted the horse, it was in satisfaction of the debt? In this view of the subject I cannot have a doubt, but.the evidence in question, was admissible. What influence it might or ought to have had with the jury is not to be settled here.
The Supreme Court of Errors of Connecticut, in Blinn v. Chester, 5 Day’s Conn. R. 358, fully sustains the view I have taken of this subject. The defendant offered to prove that at the time of making the note, the plaintiff offered to take his work as a
These considerations furnish a complete and sufficient answer to the fifth and seventh assignments of error. The objection taken by the counsel of the plaintiff in error, to those parts of the judge’s charge therein excepted to, is that the judge did not specify the time when such an agreement or consent as was mentioned by him, should have been made in order to be valid for the purposes alleged. The answer is, no matter when ; provided it was consummated and accomplished by the acceptance of the defendant below after the making of the lease, or the accruing of the rent.
The second bill of exceptions is to the decision of the Circuit Court, admitting the plaintiff’s book of accounts to go in evidence to the jury ; and error is thereupon assigned.
What the ground was upon which the admission of the book in.
In the written argument of the counsel for the plaintiff in error, I do not find any allusion to this objection, and presume therefore that no reliance is now placed upon it, any further than it may be involved in the argument against the admission of the parol evidence above mentioned. If however the court was right in permitting the plaintiff below to prove payment, or accord and satisfaction, then the book of accounts was competent evidence; especially as it appears, by the bill of exceptions, that the schooling and services charged in it, were proved to have been furnished, by the testimony of a witness. There is nothing I think in this objection.
The third error assigned is, that the books of the Rahway bank were admitted in evidence.
This is not the first time that bank books have been admitted in evidence on trials between individuals in this state; although I am not aware that it has received the solemn decision of the Court. So too they have been admitted, on trials upon indictment against persons for over-drawing their accounts. Upon the most mature reflection however, I am of opinion the books were properly admitted. Where parties deal with each other by notes and checks on a bank, they make the bank their common agent or clerk ior keeping an account of the payment and appropriation of the moneys for which they are drawn; as much so, 3 think, as if two or more men should employ a common clerk to keep an account of their dealings with each other. Such is now the use made of banks, and the course of dealing with them, that if men who transact their mutual business through the agency of a bank cannot resort to its books to show the disposition that has been made of checks and notes passing between the parties, and how the proceeds have been applied; but must rely on the memory of bank clerks to prove such transactions, however remote, complicated or extensive such transactions may have been, it would often defeat the rights of parties and the fair administra
But whatever doubt there may be of the propriety of admitting the books in evidence, I do not think the admission of them fatal in this case. The material fact that a certain check drawn by the plaintiff below, for a certain amount had been charged to the plaintiff and credited to the defendant was testified to by the cashier, and the books were only corroborative of that fact; and if upon the bill of exceptions the court can see that there was evidence sufficient to justify the verdict, and that the party was not prejudiced by the evidence objected to, the judgment will not be reversed.
The fourth error assigned is on that part of the judge’s charge to the jury, in which he instructed them, that the defendant below could not justify under the plea of the general issue • as to so much of the alleged trespass, as consisted in the seizing the goods that had been removed off the premises.
The charge on this point, was as follows : “As to such part of the goods as were seized at the store house, or elsewhere off the premises, the defendant stands here without any legal excuse notwithstanding there may have been rent due for which he had a right to-distrain. At common law a defendant could not justify or excuse himself for taking away the goods of another, under the plea of not guilty. If he intended to set up a legal or permissive right to take them, he was bound to set up his defence by a special plea, and could not give such special matter in evidence under the general issue. But the legislature by an act passed many years ago, in favor of landlords, has enacted that if he is sued in trespass by his tenant, for taking goods, he may give in evidence under the general issue, that he took them as a distress
Notwithstanding the ingenious criticisms of the plaintiff’s counsel on the phraseology of the statute, we think there is no error in this part of the charge.
The rule at common law, was, that where the act would prima faeie appear to be a trespass, any matter in justification or excuse, or done by virtue of a warrant or authority, must be specially pleaded (1 Chitt.pl. 492.) Hence the statute of 11 Geo. 2, c. 19 See. 1, which corresponds with the 13 See. of our own statute, giving the landlord the right to plead the general issue and give the special matter in evidence.
If we were now called upon, for the first time to settle the meaning of this section, it seems to me we should by every just rule of construction be compelled to limit the right of the defendant to plead the general issue, to cases in which goods had been seized on the premises; or at most to cases, where the landlord coming to distrain, and having view of the goods, the tenant removes them off the premises. (2 Inst. 232, 2 Bac. abr.: title distress, 247.) The question is, to what does the word “ thereupon,” used in the statute relate ? The answer is given on the very face of the section. Stript of its verbiage it reads thus: “ In all actions of trespass brought against any person entitled to rent, relating to any entry by virtue of this act upon the premises chargeable with such rent, or, (relating) to any distress, or seizure; or, (relating) to any sale or disposal of any goods, thereupon, it shall be lawful &c.” What can the word “ thereupon,” standing in this connection, refer to, if not to the premises chargeable with rent ? But counsel say, it refers to distress or seizure, and not to the premises; and the argument is that if it refers to the premises, then if the goods were seized on the land., but sold or disposed of, off it, the landlord in an action of trespass against him for such sale and disposal, would be confined to
In Fourneaux v. Clark et al. in 4 Camb. N. P. R. 136, as late as the year 1815, Lord Ellenborough pronounced the same opinion. These cases are not cited as authority, but to show what has been the opinion and the uucontroverted opinion of other, and of very competent judges, on this point.
The fifth error assigned is answered by the closing remarks on the first assignment.
The sixth error assigned is, that the judge charged the jury, that the plaintiff might prove payment in money, in board and tuition of defendant’s daughter, or in any other valuable service,
The seventh assignment of errors is answered by the closing remarks on the first assignment.
The eighth error assigned is, that the court, after stating the manner in which the plaintiff had sought to prove the defendant’s consent that his indebtedness to the plaintiff should go towards payment of the rent, charged in substance, that from that evidence in connection with the fact that the defendant did after-wards send his daughter to the plaintiff’s school, the jury might infer that the defendant, after such schooling had been furnished had accepted the amount charged, as payment on account of rent. This is not a very just paraphrase of the part of the charge referred to. But admit it to be so, yet I see no error in it.
This, as well as the three preceding assignments, and several that follow, are based upon the idea, that the evidence of the conversation about the schooling of the daughter had been unlawfully admitted; or, that if that evidence proved a parol agreement or understanding, that the schooling, if the defendant sent his daughter to the plaintiff’s seminary, should go on account of rent, and that if after the lease was executed, the defendant did send his daughter to school, yet he would not be bound to allow it as payment on account of rent. This, from looking at the charge in extenso, appears to he precisely the point where the Circuit Court and the counsel for the defendant in that court differed on the trial of the cause. If therefore, I am correct in what has already been said on the admissibility, and the effect of that evidence, the ground of error in this, and several other of the assignments is taken away Whether there was any agree
The ninth and tenth assignments of error come within the same category as the last, and are disposed of by the observations just made.
In the eleventh, twelfth and thirteenth assignments, the matters set forth for error do not appear in any part of the charge, and therefore require no answer.
The fourteenth assignment is in these words “ the judge charged the jury that the burden of proof undoubtedly lies on the plaintiff to prove that the check was given by him and received by the defendant, in part payment of the rent. This however, like all other matters, may be proved by evidence more or less direct, that is by express, or by circumstantial evidence. If in fact, the defendant had no other lawful claim or demand upon the plaintiff, the question would seem to be at an end. The legal presumption in such case would be, that it was paid to him for rent; and the law would so apply it.” This is complained of as error in the gross; but the assignment gives us no intimation of the point wherein the error consists. Does the plaintiff in error complain that the judge erred in saying, that the onus probandi, lay on his adversary ? Or in saying that the fact in question might be proved by evidence more or less direct, that is by express or by circumstantial evidence ? Or in saying that if nothing but rent was due the defendant, the legal presumption would be that the check had been delivered and accepted on account of rent; and that in such case, the law would so apply it? In each of these particulars the charge was clearly correct; and if there is any latent error in the language of the court, the assignment has failed to bring it to our notice.
The fifteenth assignment is liable to the same remark as that just made; but its object I presume is to subject to the opinion of this court, the charge of the court below on the subject of the application of payments. The judge charged the jury, that if the defendant below had other claims against the plaintiff beside the claim for rent, the defendant had a right to apply the check to such other claims, unless the plaintiff gave it to him in payment of rent and for no other purpose. That the general rule of law was, that he who pays, has a right to appropriate the payment; if he does not the receiver may; but if neither has made an appropriation of the money, then the jury are to apply it under the evidence in the cause, and the direction of the court. We see no error in this part of the eharge. In White v. Trumbull, 3 Green 314, this court decided, that if the debtor does not direct to which debt the payment is to be applied, the creditor may apply it as he pleases; but if neither appropriates the money the law must decide. But in that case the payment was applied pro rata ; because there was nothing in the case to show that either party could have any interest in discharging either liability in preference to the other. The debts were of the same nature, and recoverable only by suit at law. In this case the rent was a more onerous duty than any other, and subjected the plaintiff to distress, as well as suit at law.
In The United States v. Kirkpatrick, 9 Wheat. 720-737, the court say: “ the general doctrine is, that the debtor has a right, if he pleases, to make the appropriation of the payments; if he omits it, the creditor may make it; if both omit it, the law will apply the payments, according to its own notions of justice,” and they add, “ It is certainly too late for either party to claim a right to make an appropriation after the controversy has arisen.” See also Seymour v. Vanslyck, 8 Wend. 404-416.
The sixteenth error assigned is, that the court charged the jury, that if the defendant had no other lawful claim against the plaintiff but the rent, they might infer, that the defendant receiv
The seventeenth objection is, that the judge in his charge said “ the whole question is, whether the rent was or was not paid by the school bill and the check.” In this there was no error. It was the whole question • for, if paid, then the defendant had no right to.distrain. What the judge meant by the word paid was sufficiently explained in other parts of the charge in which it is abundantly shown that the defendant’s acceptance of such payment was necessary.
In the eighteenth assignment the plaintiff in error complains, that the judge charged in substance, that if they found that the defendant had no other lawful claims but the rent against the plaintiff, they might find that it had been paid by the school bill and the check. There was no error in this, when this part of the charge is viewed in connection with the whole of it, and with the evidence in the cause.- This assignment of error, like the last, is but ringing the changes, upon the different branches of the charge, which may be done almost interminably.
The nineteenth assignment is precisely of the same character as the last. It is that the judge charged in substance, that if the defendant had received, or ought to have received, the check on account of rent, then they might find, that he had received the school bill on account of rent. It is proper however to say that no such sentiment, either in terms or in substance, is to be found in the charge. It is only a deduction in the pleader’s mind, which the jury, if men of common sense, and it is to be presumed they were, never could have reached, after hearing the evidence and. the whole of the charge. The play perhaps is intended to be on the words “ or ought to have received.” The jury in view of the whole case, could not have been misled by the use of the word “ought” in this connection. Whether there was anything due the defendant but rent, was a question in the cause, and if nothing else, then, the defendant ought in the absence of any evidence of an application of it to a different purpose to have received it on account of rent.
In the twenty-first assignment, the error complained of is that the judge remarked to the jury, that the legislature had favored landlords more than any other creditors, and had put the law into their own hands and made the landlord judge and executive officer in his own case, and that it was questionable whether public policy did not require that the extraordinary remedy of the landlord should be taken away. That the landlord must act at his peril; and before he undertakes to make a distress he ought to be sure that rent is due him and that he can prove it beyond a reasonable doubt.
So far as the matter set forth in this assignment refers to the speculations of the judge on the policy of the law of landlord and tenant as it now stands, it is not the subject of a writ of error, Evans v. Eaton, 7 Wheat. 426, and so far as the judge in this part of his charge, stated that a landlord must act at his peril and ought to be sure that rent was due him and that he could prove it before he made a distress, the judge was clearly right.
The plaintiff in error having thus dissected the charge, and assigned error upon the several parts of it ; then assignment, sets out the whole charge in extenso, by a prout, and concludes by saying, “ in which said charge the plaintiff alleges there is error.” This is no assignment of error, and does not therefore require any answer from this court: Willard v. Warren, 19 Wend. 259.
Judgment affirmed with costs.
Cited in Potts v. Clarke, Spence. 538; affirmed, Oliver v. Phelps, 1 Zab. 608; cited in Asso. Jersey Co. v. Davidson, 5 Dutch. 418; Chaddock v. Vanness, 6 Vr. 520; Del., Lack, and W. R. R. Co. v. Dailey, 8 Vr. 528.
The matters charged were that if the defendant below agreed that the school bill should go towards the rent, and received the check on the same account, the rent was paid, no matter what other claims the defendant had against the plaintiff: and that it was no matter how much the defendant below was indebted to the plaintiff below unless the plaintiff could show an agreement or consent of defendant to allow such indebtedness as payment of the rent accruing to him.