Tyler v. Flanders

FROM COOS CIRCUIT COURT. In this case, at the first trial, there was a verdict for the defendants on the first count, and the jury did not agree on the second. The only exceptions, therefore, are those made by the plaintiff to the matters in evidence relating to the first count. The gist of this count was the malicious over-valuation of the property. It was necessary to show that it was over-valued, and that the over-valuation was malicious. To rebut any evidence of malice, it was competent for the defendants to show by the defendant Young the circumstances under which the valuation was raised, what took place at the time, and the circumstances attending it. The exception to this evidence must be overruled. The evidence offered tending to show an over-valuation of the horse was properly rejected, because such over-valuation was not complained of. *Page 624 The first request to charge the jury was rightly refused. The evidence as reported does not tend to show that a single selectman undertook to appraise the property. Flanders undertook to do just what, in Gordon v. Norris, 29 N.H. 198, it is said that one selectman may do, viz., to make an application for an account of taxable property. As to the second request, it does not appear to me, from the evidence reported, that these was anything for it to apply to. I do not understand, from the evidence reported, that there was any question as to any neglect or refusal to give an account, or any wilful omission of any property; but the question appears to have been about the appraisal of it, which, as I understand the statute, is for the selectmen to do after the list has been given them. I do not understand that any part of the charge was excepted to, I or do I see anything exceptionable. The two counts in the declaration were in fact entirely distinct. The gist of the action in the first count was the malicious over-appraisal; while, on the second count, the question would be whether the horse had or had not been legally taxed. The counts were so far distinct that the jury might have found for the plaintiff on one and the defendant on the other, and in such case that might have returned a special verdict on each count, at their pleasure, according to the dictum in Walker v. Sawyer,13 N.H. 191. It having been decided in Lisbon v. Lyman, 49 N.H. 553, that a new may be granted on a part of a case only, it seems to follow conclusively that the jury might return their special verdict on that count on which they had been able to agree. There must, therefore, be judgment on the verdict on the first count. It appears that at the trial which after wards took place on the second count, the matters in dispute were finally reduced down to the single point, whether the father of Erastus Hibbard was born in Canada or not. On this question the evidence of Sterling Hibbard was excepted to. The evidence of Sterling Hibbard was offered for the purpose of showing that Joel Hibbard, the defendant's father, was born in Canada. It was hearsay testimony, and was open to several objections. In Eastman v. Martin,19 N.H. 152, it was held that the hearsay, in order to be admissible, must be shown to be what was said by relatives members of the family. Where the witness could not refer the hearsay to deceased relatives, it was held to be inadmissible. So, in Emerson v. White 29 N.H. 490, it is said by BELL, J., speaking of the facts testified to by the witness, — "They might have been derived from other sources, and, unless derived from relatives, evidence of this kind is not admissible." In Albertson v. Robenson, 1 Dall. 9, evidence of what a brother of a plaintiff heard their father and their mother say in relation to the plaintiff's age is inadmissible. In Brooks v. Clay, 3 A. K. Marsh. (Ky.) *545, it was held that hearsay evidence of the place of birth of a party is inadmissible. So in Shearer v. Clay, 1 Litt. (Ky.) 260, Wilmington v. Burlington, 4 Pick. 174, and Robinson v. Blankely, 4 Rich. 586. In Rex v. Erith 8 East 539, it was held that evidence of the declaration of a deceased father, of the place of birth of a pauper, is inadmissible. The evidence of Sterling Hibbard, objected to, was, I think, *Page 625 quite too vague and uncertain to be admitted; and if it were not for this objection, the authorities cited seem to be otherwise conclusive against the evidence. If the wife of Lebbeus Hall had been alive at the time of the trial, and had testified that her brother was born in Hereford, she might have been contradicted by showing that she had at another time made a different statement; and I cannot see why her testimony, not given under oath, should not be contradicted in the same way. It is true that the evidence seems to make it nearly certain that the statements of Mrs. Hall were made after the controversy arose; and perhaps the court might with propriety have found that fact, and ruled out the evidence without submitting anything to the jury. But this court cannot assume to determine how the jury found that fact, and can only determine the law on the supposition that there was something for the jury to consider which might have been found either way. The statement being before the jury would have been quite likely to produce its effect, and I think, therefore, that the bane and antidote should have gone together. It appears to me that this ruling was incorrect. The evidence, that Erastus Hibbard had for twenty years voted in Stewartstown without objection, was, I think, rightly excluded. For these reasons it appears to me that this verdict ought to be set aside.