Pike v. Crehore

40 Me. 503 | Me. | 1885

Rice, J.

The case comes before us on exceptions. The first objection to the ruling of the Judge who tried the cause is founded on the exclusion of testimony offered, to prove that, in 1836, letters were found secreted in a house in which one Emery lived, in Sept. 1834, in the town of Industry. Said Emery, in 1834, carried the mail through Industry to Kingfield, over one of the routes by which a letter from Boston might pass on its way to Kingfield. The letters found secreted, bore date in 1834, had been opened, and were directed to persons residing in Kingfield. But it did not appear that Emery lived in the house referred to after Sept. 1834, nor that the letter in which the original plaintiff forwarded the money in controversy was there found, nor that those letters, which were found, in any way related to the parties in this suit. No ground is perceived upon which such letters could have been legally admitted.

An offer was also made to prove certain declarations of the same Emery, made at different times after the loss of the money in controversy. Those declarations were unaccompanied by any acts of which they were explanatory, and came from a person, who, so far as any thing appears in this case, was a competent witness. Such declarations were merely hearsay, and as such properly excluded.

The case finds, that it became material in the progress of the^trial to show on what day the said $500 bill went out of the Augusta Bank, and to show that it was in the forenoon of the 22d day of September, 1834, and for that purpose the books of said bank, the cashier by whom said books were kept, having long since deceased, were offered as evidence, tending to prove that said bill went out of the bank in the forenoon of said 22d day of September, 1834; but it not appearing that there was any entry respecting that bill, the Court excluded said books.

It is now contended, that these books were improperly rejected. If the entries in those books did tend to prove a fact material to the issue then before the jury, they should have been admitted. They were manifestly rejected, be•cause, in the opinion of the Judge, they had no such legitimate tendency. The case does not show how, or in what manner the entries in the rejected books became material, nor in what way they would tend to establish any fact proper to be proved in the case. They are not made part of the case by reference or otherwise. It was the duty of the excepting party to bring the evidence so rejected before the full Court, that by inspection, or in some other way, it could determine upon its admissibility. Not having done so,the presumption is, that the evidence offered was properly excluded.

The next matter of exception is the exclusion, by the Judge, of a document, referred to in the exceptions, and marked A. This document contains a large number of papers, purporting to be copies of record, and of other papers, on file in the office of the clerk of the United States District Court, for the District of Massachusetts, and were offered as evidence of the bankruptcy of the plaintiff before he commenced the original action.

The action was assumpsit. The trial was upon the general issue. The bankruptcy of the plaintiff was not pleaded either specially or by brief statement. It is contended by the original defendant, that the bankruptcy of the plaintiff may be proved under the general issue, without being otherwise pleaded.- This position is controverted by the plaintiff.

Judge Story, in his work on pleading, page 132, says, “Bankruptcy of the defendant must be specially pleaded. But bankruptcy of the plaintiff may be given in evidence under the general issue.”

In 1 Saunders’ Pleading, 433, it is said that “ the plaintiff’s bankruptcy might, formerly, be given under the general issue,” and Webb v. Fox, 7 T. R. 396; B. N. P. 153; Norton v. Shakspeare, 15 East, 622; 3 Camp. 236, are cited as authorities for the practice. “ But now, it must be pleaded specially in assumpsit and debt,” for which Pitt v. Chappellow, 8 M. & W. is cited.

Under the plea of non assumpsit, the defendant might, before the new rules, give in evidence, that the plaintiff was a bankrupt, when that circumstance would defeat his right of action. 1 Chit. PI. 478.

As the object of pleading always is to apprise the other party of the ground of defence, in order that he might be prepared to contest it, and might not be taken by surprise, it was singular, that under the general issue, which, in terms, only denies the promise, the defendant should be permitted to avail himself of a ground of defence which admitted a valid promise, but insisted that it had been performed, or that there was an excuse for non-performance, or that it had been discharged. 1 Chit. PI. 478.

The authorities upon this point are conflicting, and though we do not intend to say, that the bankruptcy of the plaintiff may not be given in evidence under the general issue, it is more in conformity with the principles and objects of pleading that such defence should be distinctly set out by plea or brief statement. It does not appear, however, that the papers offered to prove the plaintiff’s bankruptcy were rejected on that ground.

The document marked A, contains, as has been before remarked, a large number of separate papers, attached together by an ordinary tape. Prefixed to these papers, and under the seal of the Court, is a certificate of the clerk to the effect, that the “ papers hereunto annexed, are each and all true copies of the record in the matter of Edward Crehore of Dorchester in bankruptcy, in said Court, and that they are copies of the whole record in that case.” There are no marks upon the papers annexed to this certificate, by which their identity can be determined. Upon one of the papers now in the document is a certificate of the clerk of said District Court, “ that the foregoing are true copies of the petition of Edward Crehore of Dorchester, to bo declared a bankrupt, and of his schedules of assets and liabilities annexed to the said petition.” Several other papers are simply certified as “ a true copy.” These papers were offered, in one document, as evidence to prove the bankruptcy of the plaintiff.

Section 45, c. 133, R. S., provides, that the records and proceedings of any Court of another State or of the United States, shall be admissible in evidence in all cases in this State, when authenticated by the attestation of the clerk, prothonotary or other officer, having charge of the record of such Court, with the seal of such Court annexed.

There being many papers in the document referred to, which were not legally authenticated as copies of any record, of any Court, and which were consequently irrelevant to the issue then before the jury, and these papers -being offered with others to which the objection might not apply, in such a manner as that they must all have gone to the jury together, without any thing to indicate to them which were, and which were not, proper for their consideration, the whole document was properly excluded. Tibbetts v. Baker, 33 Maine, 25.

The operation of the statute of March 16, 1855, in relation to bankrupt plaintiffs, is unimportant, so far as this action is concerned.

Exceptions overruled and Judgment on the verdict.