Carpenter v. Bailey , 56 N.H. 283 ( 1876 )

In the case of Beattie v. Hilliard, 55 N.H. 428, it was held that a sufficient foundation is laid for the introduction of secondary evidence, by showing that the original paper is beyond the jurisdiction of the court. It appears, also, in this case, that the plaintiff went to the proper repository where this paper was kept, and where he left it before, and that on thorough search being made it could not be found. The witness having stated these facts positively, and his means of knowing the fact not being inquired into, the cases of Dickinson v. Lovell, 35 N.H. 9, and Pearson v. Wheeler, 55 N.H. 41, are authorities to show that the evidence was admissible. The court having found the necessary facts, that finding cannot be questioned here, the question of discretion not having been reserved.

As to the paper from Admiral Porter informing the plaintiff that he was transferred, and assigning, the reason, there was competent evidence tending to show that he was the acting officer who had authority to order the transfer, and the evidence therefore was rightly admitted.

One of the natural and necessary and immediate consequences of the transfer was the necessary expense attendant upon the breaking up of the plaintiff's home at Portsmouth, and establishing a new home at the point to which he was transferred; and it appears to me that the evidence tending to show that as one of the circumstances was admissible.

The case as originally drawn makes no allusion to any special pleas. The case is drawn as if it had been tried on the general issue, and every defence admitted which could have been made by special pleading. The case of State v. Burnham, 9 N.H. 34, appears to have been taken as a just statement of the law on the subject of libels. I have carefully compared the charge of the court with the doctrine as laid down in that case, and have been unable to detect any material departure from it; and therefore, on the briefs first furnished, I found no difficulty in reaching the conclusion that there must be judgment on the verdict.

In the course of the discussion, however, it has come out that the case was tried on special pleas as well as on the general issue, and assuming that those pleas were as stated in the report of the case of Carpenter v. Bailey, 53 N.H. 590, one of them being simply a justification alleging that the publication was true, the charge certainly was not adapted to such a plea.

I have thought proper to examine the pleadings, and it appears that they were designed to bring forward precisely the defence which was indicated in the case of State v. Burnham, — the issue on the second plea being that the words were true, and spoken on a justifiable occasion, and on the fourth plea, that the defendant believed them to be true.

The issues having been made up on these pleadings, it was the business of the court to try those issues. The court was not merely trying the question whether or not the publication was true, but also whether, if it were true, or, in the fourth plea, believed to be true, it was made on a lawful occasion. Whether the defendant was obliged so to restrict his defence or not, whether he could have stood safely upon a plea alleging the truth and nothing further, were matters with which the court on that trial had just nothing at all to do. The matter in hand was to try the issues, and nothing else. Section 11, of ch. 208, Gen. Stats., is by its terms limited to cases of double replication to the same plea, and is understood not to apply here. I am not aware of any particular in which it is suggested in the briefs that the charge was not correct in this particular.

There must, therefore, be judgment on the verdict.