Wiggin v. Plumer

Bell, J. Suits, in which an administrator is party, shall not be abated by reason of the death, or of the extinguishment or revocation of his trust, but may be prosecuted or defended by the administrator who may succeed to the266 trust, who may be called into court by scire facias, in the same manner, and with the like effect, as in ease of the death of other parties. Rev. Stat. ch. 161, § 11. The effect of the appearance and defence of the action by a new administrator, upon the liability of the old administrator who has been removed, the original defendant is here to be considered. If the former defendant still remains a party to the action, or if he can, in any mode of proceeding, be adjudged chargeable for the costs, he cannot be a witness. This depends upon the question, whether after the suggestion of his removal from office, and the defence assumed by the new administrator, any judgment can in any event be rendered against him. And as we understand the statute, he ceases to be a party to the action on removal from his trust as absolutely as if he were dead, and the action must either be prosecuted against the new representative of the estate, or it will be discontinued. This results, too, from the nature of the suit, which is a proceeding against the estate of the deceased. When the administrator is displaced, he ceases to have either interest in or power over that estate, and a judgment to reach the estate must be rendered against the party entitled to represent it. The judgment, also, must be for a sum to be levied of the goods and estate of the deceased, in the hands of the defendant, administrator, to be administered. Such a judgment cannot be rendered against one who appears by the record not to’be administrator. In a suit against an administrator, the judgment for costs is but an incident to the judgment for the debt, and if there is no judgment for the debt, there can be none for costs. We think no example can be found of a judgment for costs until the case is ended. The original administrator’ having ceased to be a party and to be liable for costs, the first objection must be regarded as unsupported. The rule as to the admissibility, of statements made out 'of court, as part of the res gestee, is laid down with clear267 Mess in the ease of Sessions v. Little, 9 N. H. Rep. 276. “ Where evidence of an act done by a party is admissible, his declarations made at the time having a tendency to elucidate, or give a character to the act, and which may derive a degree of credit from the act itself, are also admissible as. part of the res g-es&s.” And the rule is substantially stated in the same way in Gordon v. Shurtleff, 8 N. H. Rep. 260; in Plumer v. French, 2 Foster’s Rep. 454; and in Hersom v. Henderson, 3 Foster’s Rep. 498. When a fact is offered in evidence, the whole transaction, if it consists of many particulars, may and ought to be proved. Every additional circumstance proved may vary the effect of the. evidence, may neutralize it, or give it point. What is then said by the parties, and what is said by others to them, relative to the subject of the transaction, is a part of the transaction itself. It is admissible on the same principle that every .other part of it is, that the whole matter may be seen by the jury; upon the same principle which disallows extracts of written papers, that their effect may be materially varied by the part omitted. Contemporaneous, but otherwise unconnected conversation, is rejected, on the same ground as other unconnected facts. If the statement offered in evidence does not tend to elucidate, or give a character to the acts proved, it is to be rejected. If it is upon the same subject and relative to the act in proof, it should be received. Brought to this test, the case stands thus; the subject was the search for certain notes alleged tobe lost. The evidence proposed was what the party himself said at the time he was making the search. To what did the statement offered relate? Was it to the search, which was the business in hand, or was it to something else ? If it related to the history of these notes, or to anything else except the actions in which the parties were then engaged, it was inadmissible? because it constituted no part of that search, but was a hearsay recital of some past affair, which threw no light on the business of the search, and derives no credit from it. It — 268 — is the mere statement of a party in interest, and therefore inadmissible. Many men habitually indulge in the recital of their version of every transaction in which they feel an interest, whenever anything occurs which reminds them of it, and they are so fortunate as to find a listener. It would be a dangerous rule which would admit such historical statements, because they happened to be detailed when some transaction material to be proved was occurring. In this case, it does not appear what evidence the witness was expected to give, nor to what subject the conversation was expected to relate. It was properly rejected, because the broad general rule is, that the statements of a party are not evidence in his own favor; and the party who offers such statements is bound to show, that what he expects to prove is admissible under some of the exceptions which the law- makes to this general rule. The offer here was to prove what was said at the time of that search about the Berry notes and the Bickford note. That is, anything and everything that was said; the offer being in no way limited, except to what was then said. The witness, if the evidence was admitted, might have related the entire history of these notes, and the plaintiff might thus have placed before the jury as evidence, his statement, without oath, of his whole case. This would be clearly incompetent. The offer was too broad. The question to be proposed to the witness should have been confined to the matters connected with the transaction in which the party was then engaged and forming part of it. A ruling in their favor would then have allowed them all the evidence legitimately receivable. A ruling in their favor upon this offer, would have allowed the introduction of evidence clearly incompetent. The evidence in relation to Bickford’s means seems to have been erroneously rejected. The case was one to a great extent depending on circumstantial evidence. The note was defaced. There was conflicting testimony as to the handwriting. Various circumstances were proved tend — 269 — ing to show the improbability that the plaintiff had been the holder of such a note against the deceased. Among the evidence of this kind was the testimony of McClure and that of Neal, tending to show what amount of means he had, and his want of means to make such a loan. This evidence was avowedly introduced with a view not to disprove the plaintiff’s general ability to make such a loan, but for the purpose of disproving the fact that he then held this note ; but its evident effect is as well to show general want of ability to loan, as to disprove his having this note. And it seems to us to follow as a necessary consequence, that evidence was as competent to meet this bearing of the evidence as the other. In a ease of this kind, evidence relative to the ability of the party to make such a loan seems proper and material. If, for example, the defendant could prove that the plaintiff was destitute of the means to make such a loan, was destitute of property, or was a pauper, it would weigh heavily against his claim ; and proof of his actual means, if considerable, would powerfully rebut such testimony. It by no means follows that because a man has ability to loan, that he has actually made a particular loan, as is suggested in the case. But it is no objection to evidence properly of a rebutting character, that its tendency to prove the issue, on the part of the party offering it, is remote. No fact can in the first instance be offered in evidence unless it is material to the issue, but evidence being introduced to prove such fact, any evidence tending to disprove it thereby becomes material and admissible, whether or not it would be received if offered as direct proof of the issue in the case. No party is bound to rely upon the admissions of his antagonist, whether express or implied. When the defendant asserted that he made no question as to the general ability of the plaintiff, and introduced his evidence with no such view, he could not thereby deprive the defendant of his right to rebut the natural effect of such evidence, if he — 270 — chose to do so. A well known figure of rhetoric affects to omit a charge only to assert it thereby with greater force. The question as to the evidence of Bickford’s borrowing money at a bank is briefly stated, but seems to stand upon the same ground. That Bickford borrowed money of others, is no proof that he borrowed of Wiggin, but if the administrator introduced evidence tending to show that Bickford was not a borrower, as a circumstance to be weighed in estimating the probability of this note being genuine, the evidence offered was competent to rebut it. The rule in relation to the admissibility of the opinions of witnesses as to handwriting, is laid down clearly in Hoitt v. Moulton, 1 Foster’s Rep. 594. “ By our practice,” said the learned judge who delivered the opinion of the court, “ and the authorities generally, handwriting may be proved by the belief of the witness as to its genuineness, when the witness has seen the person write, so as to have any acquaintance with his handwriting, and this though the witness has seen him write but once. The evidence may be slight, but if he is able to state that in his belief the handwriting is that of the person in question, it is competent to be considered in the first instance, and is sufficient, until some rebutting evidence is offered.” The testimony off the witness, Gale, falls entirely short of this. He does not declare his opinion or belief that it is or is not the signature of Bickford. That he cannot swear positively that it is his, or that it has a close resemblance to his, or that he sees nothing differing from the character of his writing, is nothing to the purpose. The only testimony competent for him to give in the first instance was his opinion, or belief, that it was or was not Bickford’s handwriting. For aught which appears, he might have entertained decided opinions either way, but he has not stated them. Nothing but his belief, or opinion, was competent as proof of the signature. The admissibility of the last answer as rebut — 271 — ting proof, would depend upon the character of the defendant’s evidence. Sanborn testified to a fact, which, if believed, was material and important, that the parties, in a conversation, at which he was present, substantially admitted the existence and validity of the note in question, He also added that there was other conversation, (which was of an entirely immaterial character,) that Wiggin wanted Bickford to take some railroad stock. Sanborn was proved to have made contradictory statements as to this conversation. Robinson was offered to prove that subsequently to this, Bickford said in his presence that Wiggin wanted him to take some Concord Railroad stock. This was excluded as irrelevant. It seems to us very properly. The immediate question was whether Sanborn had told such contradictory stories as to destroy his credit. As to this point, it was of no consequence how the truth was. If he had told contradictory stories, it does not help his credit greatly to show on which side he falsified. The fact to which Robinson was called had of itself no relation to the case, and it was equally irrelevant to the question of Sanborn’s truthfulness. The ruling in relation to the remark made by Wiggin to Smith, which induced him to notice what passed between the parties, seems to us correct. The plaintiff cannot introduce his own statements in this way. He cannot go further than to ask if anything was said which led him to notice what was said or done. The evidence as to what took place at dinner, at Wig-gin’s, and the charge in relation to it, were not excepted to, and any objection to them was therefore apparently waived. No inference can be properly drawn from a man’s silence, unless the occasion was one which properly called upon him to speak. It may well be questioned whether Wiggin was under any duty or obligation to speak of his private affairs to mere strangers, merely because the conversation happened to turn upon the health and property of his debtor. 1 — 272 — Greenl. Ev. 230; 1 Phil. Ev. 356; 1 Cow. and Hill's Notes to Phil. Ev. 359. The evidence, however, was properly submitted to the jury. As to the objections to the jury, the substance of the matter seems to be, that Mr. Coffin knew nothing of the case until Saturday evening of the first or second week of the February term, when this case was tried, but no verdict was returned. He was that evening, the case being then partially tried, at a store near his residence at Gilmanton Iron "Works, with several others, among whom was Mr. Swain, a neighbor and friend of Wiggin, and one of his witnesses. Coffin inquired of "Swain as to the ease, and Swain gave him a statement of the evidence, as he understood it. At the close of the statement Coffin said, “ That trunk being stolen, he retaining that note and giving a mortgage of his farm, there is something about it that looks like roguery.” He said “ Wiggin would lose his note, whether it belonged to him or not,” as Swain repeats it. Another witness says, Coffin spoke of there being a good many bad circumstances in the case. Of the note being in the manure as one, and of the improbability of Wiggin giving a mortgage and holding a note at the same time. Three other witnesses represent Mr. Coffin’s remarks substantially in the same manner. The conversation on the subject lasted three-fourths of an hour. This evidence is not contradicted, and there is no reason to doubt that Coffin then expressed a decided opinion against Wiggin. Three witnesses testify to his afterwards expressing the same opinion, and quite as strongly, at different times, to four different persons. A juror who had thus prejudged a case, and repeatedly expressed his opinion, cannot be deemed impartial. No party who knew what he had said against his case, would have consented to his remaining upon the jury, or could be satisfied with his verdict; but the plaintiff testifies, he knew nothing of it. Mr. Coffin, doubtless, supposed that notwithstanding what he had heard and said, he could hear the evidence — 273 — without bias, and vender an impartial decision, but experience does not confirm the soundness of that opinion. When the inquiry was made of the jurors if either of them had heard much of the ease, or had formed any opinion, Mr. Coffin should have stated the facts, or excused himself. The verdict must, for this cause, as well as for the other exceptions before stated, Be set aside.