Wilson v. VanLeer

Opinion, Mr. Justice Mitchell: The competency of Cornelius Carman was in the first instance clearly a matter for the court, and no subsequent evidence having raised any dispute of fact upon it, the learned judge was right in saying that the court was the sole judge of competency, and refusing to allow the jury to review the ruling. Had the facts upon which the judge held him prima facie competent been denied or contradicted, it might have been proper to submit the whole matter to the final decision of the jury: Lee v. Welsh, 1 W. N. 453 ; but there was no such conflict as made that course necessary. The learned judge was also within the line of authorities, in holding that Carman had sufficient knowledge of Wilson’s handwriting to make him competent to testify concerning it. It is said to be sufficient if the witness has seen the party write but once, and then only his name: 1 Greenl. Ev. § 577; and probably no higher standard can be fixed for a definite rule, though, considering the untrustworthiness of opinions on handwriting in general (see note of Chief Justice Redeield to his edition of Greonleaf, vol. 1, sec 578), such evidence [378] ought to be guarded with great caution. Nor in the nature of things is it possible to fix any arbitrary limit of time within which the witness must have seen the writing done. That must depend on his intelligence, his habit of observation of such matters, the apparent strength and confidence of his memory, etc., which must be passed upon in the first instance by the trial judge. Carman’s knowledge seems not only to have been extremely stale, but of the narrowest extent, and if the learned judge had held that it was too remote and unreliable to qualify him, we should not have been disposed to disagree with him. But the matter was within his discretion, and his conclusion was, as already said, within the line of the authorities. It was therefore for the jury and not for us to determine the weight to which the testimony should be entitled. The assignments of error in relation to Carman’s testimony are therefore not sustained. We are obliged however to hold that the court erred in refusing to permit the counsel for defendants below to refer to the almanac to show, in support of his argument against the testimony of Margaret Manahan, that a certain date in 1865 fell upon Sunday. All of the authorities agree that this is one of the matters that do not require to be proved, but are taken judicial notice of, without evidence. “Neither is it necessary to prove.....the coincidence of days of the week with days of the month: ” 1 Greenleaf, § 5; and see Starkie on Evidence, pt. 8, sec. 20 (p. 788 of 10 Am. ed.) “ It is wholly immaterial whether the facts of public and general history, and their dates, are recognized by the court, sua sponte, the chronicles or almanacs being used merely to aid the memory; or whether they will remain unnoticed until suggested by the parties and verified by the books; or whether the books themselves are adduced by the parties as instruments of evidence; the process and the result being in each case the same: ” 3 Greenleaf, § 269. The mere mode of introducing the almanac seems to vary, as indicated by the last extract from Greenleaf, but as all the authorities agree that no proof is necessary, it follows that it is not required to be put in evidencie at all. “ The almanac in such cases is used, like the statutes, not strictly as evidence, but for the purpose of refreshing the memory of the court and [379] jury:” State v. Morris, 47 Conn. 179. “Tho almanac is part of the law of England,” Pollock, C. B., in Tutton v. Darke, 5 H. & N. 649. In Hanson v. Shackleton, 4 Dowl. 48, there was a rule to set aside a writ, on the ground that it was dated on Sunday, and the report proceeds : “ Coleridge, J. Have you an affidavit showing that the day on which this writ is dated was a Sunday ? “Bayly. The affidavit does not state that it was Sunday, but tlie day of the month being given the court is bound to take judicial notice on what day of the week that day fell. C. A. V. “ Coleridge, J. I have consulted the other judges and they are of opinion I ought to take judicial notice of what the day was on which this day of the month fell. Rule absolute.” So in Reed v. Wilson, 41 N. J. Law, 29, there was a declaration on a note dated August 12th, at four months, and on demurrer assigning, inter alia, that the narr. showed demand and protest on December 14th, one day too soon, the court took judicial notice that December 15th ivas Sunday, and therefore that the demand was made on the proper day. In R. R. Co. v. Lehman, 56 Md. 226, it was held that “it is the duty of the court to notice the days of the week on which particular days of the month fall; and hence we know without other averment (on demurrer) that the 28th of July was Sunday.” And in McIntosh v. Lee, 57 Ia. 358, it was said by the court, “ the petition alleges that the defendant entered into the written lease on March 10, 1878. Courts take judicial notice that the tenth day of March, 1878, was Sunday. The petition therefore in effect alleges that the lease was executed on Sunday,” and it was therefore held that under the pleadings evidence was not admissible that the lease was executed on Monday. These authorities, and none have been found in opposition to them, show clearly, that however often departed from as a matter of convenience, the rule is that matters of which judicial notice is taken, including the dates in the almanac, do not require to be put in evidence at all. It is argued for the defendant in error that the fact of August 13tb having been Sunday, did not necessarily contra380 diet Mrs. Manaban, and therefore that even if the court below committed an error it was an immaterial one for which the judgment should not be reversed. But there was an apparent contradiction, which at least required explanation, and in a case where the evidence in support of the plaintiff’s case was so meagre, it is impossible to say that even a slight doubt thrown on the testimony of the main witness, would not have turned the scale in the minds of the jury. It is also argued that the almanac having been brought forward at so late a stage in the case, deprived the plaintiff below of the benefit of an argument upon it by one of her counsel. But in this respect it was like any other argument or illustration which counsel may make towards the end of a case. If it has not been anticipated it is a surprise, and that is a risk winch parties must encounter in every case. If counsel had run the calculation back himself, so as to show that that daj^ was Sunday, no one could have questioned his right to do so. His reference to the almanac was no more than a reference to the multiplication table, as a labor saving mode of refreshing or confirming knowledge legally presumed to be in everybody’s mind. This kind of surprise is one of the dangers incident to every contest, and the only relief against it, is the discretion of the judge, where the new matter or new view may lead to substantial injustice, and is such as could not reasonably have been foreseen, to allow an opportunity of reply, or subsequently to grant a new trial. Judgment reversed, and venire de novo awarded.