12 N.H. 179 | Superior Court of New Hampshire | 1841
The first question presented by this case is, whether the evidence offered by the plaintiff, for the purpose of proving the marriage of the defendants, was competent for that purpose, or had any legal tendency to prove that fact ?
In all civil actions, except for criminal conversation, cohabitation, or reputation, is sufficient evidence of marriage. 2 Starkie’s Ev. 939; 2 Phill. Ev. 207, (2d Ed.;) Birt vs. Barlow, Doug. 170; Greenl. Ev. 119. Did the facts offered in evidence by the plaintiff tend to prove the fact of the cohabitation of the defendants as man and wife, or did the facts, offered to be proved, furnish evidence of a reputation of that relation ? If so, it was clearly competent for the purpose of proving the marriage.
It appears that prior to, and until the evening or night of, June 19, 1840, the defendant, Emily, resided with her father, and on that evening, or night, she left her father’s house, and on Sunday, the 28th day of said June, the said Emily and the other defendant, McGregor, returned together to Hampton Falls, and on that day attended together the church where her friends worshipped — that a few days after their return, Emily resided with a Mrs. Fife, who was the sister of the defendant, John McGregor, and afterwards with a Mrs. Sanborn, in the vicinity of her parents — that while she was boarding at said Sanborn’s said John usually attended her to church on the Sabbath day, and sat with her, and dined with her upon that day, and that he was in several instances seen leaving said Sanborn’s at a very early hour, after having spent the evening with Emily.
The familiarity that existed, and its character, must have been known, not only to his, but also to her friends, and was, without complaint, tolerated by all * and so far as the character of the relation existing between the parties .was shown to have been spoken of at all, which was by Emily and her
The point of view in which the parties are regarded by their relations, and the manner in which they are received and treated and spoken of by them, are proper matters to be submitted to a jury upon the question under consideration. Greenl. Ev. 119, § 107. In 2 Phillips' Ev. 286, it is said, that, even in a case in which it is proved that the marriage was originally void for want of license, or the regular publication of bans, “ there may be sufficient ground for proving a subsequent legal marriage, from the cohabitation of the parties as man and wife, and from the manner in which they were always received by their relations. Whether such presumption is reasonable, the jury are to determine, upon all the various circumstances of the case.”
In the case of Wilkinson vs. Payne, 4 T. R. 468, in which a question arose respecting the marriage of the plaintiff, and it clearly appeared that the marriage when it took place was not a legal and valid marriage, Grose, J., who tried the cause, left it to the jury to presume a subsequent legal marriage, from the fact that the plaintiff and his wife had always been received and treated by the defendant, and by all his family, to the time of her death, as man and wife ; and the jury having found the existence of a legal marriage, upon exceptions taken the verdict was sustained by the unanimous opinion of the court of king’s bench. The court in that case held, that there was some ground for a presumption of a subsequent legal marriage. Lord Kenyon, C. J., remarked, in pronouncing the judgment of the court, “ Though the first marriage was defective, a subsequent one might have taken place. The parties cohabited together for a length of time, and were treated by the defendant himself as man and wife. These circumstances afforded a ground on which the jury presumed a subsequent marriage.”
We deem the evidence slight; but, upon mature consideration, are clearly of the opinion that it has some tendency,
The court are of the opinion, therefore, that the evidence offered by the plaintiff should have been submitted to the jury, and that the ruling of the court rejecting the same was erroneous.
But another question arises upon this case, involving the power of the court below to permit the plaintiff, under the circumstances disclosed by the case, to furnish an indorser of the writ after the service thereof, and after the entry of the action in the court, at the time of the trial of the action. By the laws of this state, original writs are required to be indorsed by some responsible person resident within this state, in case the plaintiff is not an inhabitant of this state, and the indorsement to be made upon the writ before its service. And in case the plaintiff is a resident within the state, then the writ is required to be indorsed before its service, by the plaintiff or his attorney. 1 N. H. Laws 91.
It is believed to have been long the well settled and uniform practice in this state, in all cases where writs were properly indorsed at the time of service, for the court to exercise the power of permitting such changes of the indorsers, as the exigencies of the case, or as justice might seem to require— the court taking care at all times to see that no prejudice
In Whitcher vs. Whitcher, 10 N. H. Rep. 440, in discussing the question of the proper form of the copy of the writ to be filed as a substitute for a lost writ, Parker, C. J., remarks that “ the new “writ to be filed is no more than a copy of the old one. There may be a new indorser, for it is competent for the court to give leave to change the indorsement, and to require a new one.” “ The indorser of a writ is no more discharged by the loss of it, than the maker of a note is discharged by its loss.” Here, then, as I understand it, is a clear recognition of the rule of law before stated. The foundation of the opinion in this respect is not stated; but it must have been, as I suppose, the practice which was recognized by the chief justice, as amounting to a rule of law. In that case the writ is assumed to have been properly indorsed originally, and the power of the court to give leave to change such indorsement is distinctly recognized and asserted.
In the case of Farnum vs. Bell, 3 N. H. Rep. 72, Chief Justice Richardson remarks : “We are aware that, by our practice, permission is frequently given to indorse a writ after the action is entered; and we entertain no doubt of the validity of such an indorsement, for no court would in such a case permit the indorser to show that the writ was indorsed after it had been served, for the purpose of avoiding his contract.” Here, too, is recognized the power as well as the practice of the court to allow new indorsements of writs, after service, and even after entry in court. The remarks of the chief justice probably had reference only to the case where the writ was originally properly indorsed, and to the well established and familiar rule of practice in such cases, and were not intended to go beyond that case. The language is, however, broad enough to reach and embrace also the case of a writ not indorsed at all before service, but does not necessarily go to that extent. This case of Farnum vs.
If this question were now presented for the first time, or if it might be treated as an open question, whether the court have the power to order the discharge of the liability of the original indorser, and to permit another to be substituted in his stead; certain it is, that reasons of weight would not be wanting to be urged against the exercise of any such authority, without the assent of the party to whom and for whose benefit the obligation of indorser is assumed. It is the duty of courts of justice ordinarily to enforce, rather than to destroy the obligation of contracts. But however that may be, the usage which exists had its foundation in a desire and purpose to promote the ends of justice. It often happened that the indorser of the writ, who had no other interest than what arose from the indorsement itself, was a material witness in the cause; and through inadvertence and ignorance of the effect of the indorsement in creating an interest in himself in the result of the action, and thus rendering him an incompetent witness, his testimony was forever lost to the party calling him, if he must remain still the indorser of the writ. To relieve from embarrassments of this sort, the practice was resorted to, to permit a change of indorsers, the court always having a careful regard to the entire responsibility of the substituted indorser. No prejudice is known to have resulted to any one from this rule of practice, but great good
We are not aware that the practice has gone to the extent, and it is not believed that the court possesses the power, where the writ is not indorsed at the time of its service, to permit a plaintiff to cause the writ to be indorsed at any subsequent period, without the assent of the defendant. The plaintiff in such action is not properly in court at all. The indorsement of the writ is as much a prerequisite to the right to call upon the defendant to answer to the action, as is the proper service and notice of the pendency of the action. The writ is not in fact properly in court, in contemplation of law. There is good reason why the indorsement should be made, and that it should be done before the defendant is compelled to answer to the merits of the action. The time of the indorsement is material. It is made so by the statute. A defect of the character under consideration is good ground of plea in abatement, or, upon motion, to quash. To permit any such indorsement of a writ, after service, not before indorsed, and the plaintiff thereupon to stand well in court, as though his writ had been originally well indorsed, would be a virtual repeal of the provisions of the statute requiring such indorsement to be made before the service of the writ, or at least would render the same wholly nugatory an'd inoperative. No precedent for it is found *in our Reports, or known to us in practice ; and we think any such exercise of power in the court would be wholly unwarranted.
We think the writ was properly indorsed at the time of its service, and that the fact appeared upon the writ itself. The language of the indorsement as written upon the writ was: “John M. Pettingill, by his attorneys Bell & Tuck.” The plaintiff was not an inhabitant of this state, and that appeared in the writ itself. He therefore could not have been a proper indorser, such as the statute requires. It is apparent, then, that if he could not be the indorser, Bell & Tuck could have no implied authority to place his name upon the writ, and bind him as such ; and this want of authority in Bell & Tuck was apparent upon the writ itself.
Bell & Tuck, then, did not bind the plaintiff as indorser, for the law recognizes no such person as indorser. Did they bind themselves as indorsers ? We think they did. There is nothing in the manner of the indorsement, or in its substance, inconsistent with their personal obligation ; and if it was their intention to bind the plaintiff, failing to do it they bound themselves.
It is a well settled rule of law, that when one, not having authority, assumes to bind another, he binds himself, if apt words are used for that purpose, or if the language used in the contract does not preclude the idea of personal obligation on the part of him assuming to be the agent. If a contract entered into by one assuming to act as the agent of another, but who had not the requisite authority, when stript of what the agent had no right to put there, still contains apt words to charge the agent with a personal obligation, he is bound to the performance of the contract. Woodes vs. Dennett, 9 N. H. Rep. 55, and the authorities there cited.
What the contract is, that is implied by law as being entered into by indorsing a writ, when drawn out at large, it is not necessary now to determine ; but it is conceived that when drawn out its language would apply as appropriately to the name of the firm of Bell & Tuck as to that of John M. Pettingill, and would as aptly charge them with the obligation of indorsers of the writ. Bell & Tuck were, then, indorsers, and bound as such. The writ, then, was properly indorsed, and there was no foundation for the motion to quash the writ.
We are aware that it was remarked by the late chief justice Richardson, in delivering the judgment of the court in Miner vs. Smith, 6 N. H. Rep. 219, that a writ indorsed like this under consideration, in a case where the plaintiff lives out of the state, and where the statute requires a responsible person who is an inhabitant of the state, “ is considered as having no such indorser as the statute requires.” But that is to be regarded as a mere dictum. It was not a point necessary to the decision of that case, nor can it therefore be regarded as furnishing any reason or foundation for the decision that was made in that case. The point decided in that case was, that when an attorney is employed to commence an action in the name of an individual, he is authorized to place the name of such individual upon the writ as indorser; and when the plaintiff in such case is an inhabitant of this state, and the indorsement is made in the manner adopted in this case, it is always considered as the indorse
But that is not the case under consideration. In this case the party had no lawful authority to indorse the writ himself. If his name had been placed upon the writ by himself, the writ would not be regarded as indorsed at all, and his attorneys could have no better or higher authority than the party himself. Indeed, in such case the writ could not be regarded as indorsed at all in conformity with the requirements of the statute, if it is to be considered as indorsed by the plaintiff only.
But it does not necessarily follow, that because the plaintiff may not be regarded as a lawful indorser, that the attorney who placed his name there, and who may even have intended to bind him, but failed to do it, has not bound himself. We believe that no sound reason exists why the rules of law applicable to other cases of assumed agency, are not equally applicable to that of an attorney assumed and exercised, but not possessed, in behalf of his client. An attorney at law is but an agent, and we are certainly unable to discover any good reason for holding that when he shall be found assuming obligations in behalf of his client which he is notauthor-
The court below, therefore, acted within the scope of their legal authority in permitting the indorser to be changed, and the ruling on that subject was correct.
The verdict, however, must be set aside for error in the ruling of the court in the rejection of the evidence offered to prove the fact of marriage, and the action transferred to the court of common pleas for a
New trial.