Lord v. Dunbarton , 55 N.H. 245 ( 1875 )

It is well settled that contracts required by law to be in writing may be written and signed in pencil. This is because "the law extends great indulgence to looseness and inaccuracy in writings, necessary to the common business of life, propter simplicitatem laicorum." PERLEY, J. in Stone v. Sprague, 24 N.H. 311. If the payee or indorsee of a promissory note is willing to accept it when signed or indorsed in pencil, and take the risk of its becoming effaced, the law will not interfere to pronounce such a note invalid: and the same is true of any other private instrument signed in pencil, which the parties interested are willing to accept. Such papers are made to continue in force for a short time comparatively, while public records are intended to be permanent; and upon their permanency and preservation very often depend large and important interests, of which they are the sole evidence. In Geary v. Physic, 5 B. C. 234, ABBOTT, C. J., in deciding that an indorsement on a bill of exchange may be by writing in pencil, said, — "There is not any great danger that our decision will induce individuals to adopt such a mode of writing in preference to that in general use. The imperfection of this mode of writing, its being so subject to obliteration, and the impossibility of proving it when it is obliterated, will prevent its being generally adopted."

In Meserve v. Hicks, 24 N.H. 295, it was decided, BELL, J., delivering the opinion of the court, "that however a signature in pencil may be held sufficient in private writings, writing in pencil is not sufficient in public records, nor in papers drawn to be used in legal proceedings which must become public records." And in Stone v. Sprague, qua supra, it was held that an indorsement in pencil of the officer's name on the summons left with the defendant whose estate is attached on mesne process is not sufficient. PERLEY, J., who delivered the opinion of the court, remaked [remarked] as follows: "We have seen no case in which it has been held that the record, signature, or other writing, required by law to be made by a public officer, may be in pencil marks; but if an officer's indorsement on a summons made in pencil should be decided to be sufficient, it is not easy to see how any line of distinction could be established which should prevent the rule from being extended to all cases where an officer is required to make a writing. No statute requires that judgments shall be enrolled, or deeds recorded, in ink. Bail is taken by a mere indorsement of his name on the writ. He would probably be held chargeable if it were done in pencil; but it would be a dangerous looseness if the officer were allowed to take bail and discharge the defendant from arrest where the only security returned was a pencil mark on the writ, which, as original writs are kept and used in our practice, would, in a contested case, seldom remain legible till the plaintiff obtained judgment.

The law requiring the sheriff to indorse his name on the summons has been reenacted in successive statutes for a very long period. There is not the smallest reason to suppose that the legislature, in reenacting this provision of previous statutes, meant to introduce any change in the way of making the indorsement. When the law was first introduced, writing in pencil, if practised at all in this country, was certainly very rare. We think the legislature never intended that these indorsements should be made, except in a permanent manner that would effectually secure the object of the law, and that an indorsement in pencil such as appears in this case is not sufficient."

The rule, which these two eminent judges so clearly indicated ought to govern in public records and papers to be used in judicial proceedings which may become public records, is founded in such good sense, and on considerations of such public convenience and importance, that it ought not to be disregarded unless very strong reasons are presented for so doing. Such a rule works no harm or inconvenience in practice, while the contrary doctrine encourages looseness and carelessness, and allows the use of papers of a public character, which can be fraudulently altered with greater facility and with less liability to detection. When, therefore, in a case like the one now before the bar of this court, application is seasonably made by plea in abatement, or motion, the petition should be dismissed.

Exceptions overruled.