Inhabitants of Wayland v. Inhabitants of Ware , 109 Mass. 248 ( 1872 )

Wells, J.

In order to establish the fact that James Davis, Jr., was credited by the war department of the United States “ as a part of the quota ” of the town of Ware, the plaintiff undertook to show that a certain number of men had been so credited at a certain date. For this purpose the certificate of the present adjutant general that it so “appears from the records of this office” was improperly admitted. 1 Greenl. Ev. § 498. Robbins v. Townsend, 20 Pick. 345. To prove a fact of record by a record not produced, requires a duly authenticated copy of the record itself, or of so much thereof as relates to the fact in question.

The plaintiff seeks to retain the verdict, notwithstanding the exception to this evidence, on the ground that it otherwise sufficiently appeared that Davis was so credited.

It is not enough that it sufficiently appears as a matter of preponderance of evidence. It must so appear as not to admit of a verdict to the contrary. Unless it does so appear, the court cannot see judicially that the error was an immaterial one, or that no prejudice was suffered from it by the excepting party. The cases from the early reports of decisions of this court, cited by the plaintiff as holding a less strict rule, were decisions upon motions for a new trial.

The other proof in this case depended essentially upon the oral testimony of one witness. It involved, not only his credibility with the jury, but his accuracy and means of knowledge. There were some facts and documents, and some answers in cross-examination, upon which the defendant relied to contradict or to weaken the force of his testimony. The burden of proof was upon the plaintiff. The fact to be established was, not that Davis ought to have been credited to Ware, but that he actually was so credited. The certificate, if competent, was decisive. The other evidence may have been equally satisfactory, but it was not legally conclusive; and the plaintiff was not content to rely upon it alone.

The exception must therefore be sustained. But the error affects only the single fact of the credit to the quota of the defendant town. All the other facts have been twice found by the jury, upon competent evidence, in favor of the plaintiff. The first verdict was set aside solely on account of the admission of incompetent evidence to prove the same fact of the credit. The evidence strongly points to the existence of the fact in accordance with the plaintiff’s claim. In Potter v. Tyler, 2 Met. 58, where a copy of a paper, not certified by the proper officer, was admitted in evidence, but the party afterwards, pending a motion for a tew trial, produced a duly certified copy corresponding with that admitted, a new trial was refused. Upon a bill of exceptions we have not the same discretionary power as upon a motion for a new trial. But the full court is authorized to “ make such order, direction, judgment or decree as is fit and proper for the further disposition of the case.” Gen. Sts. c. 112, § 11. And the case will then be disposed of in the superior court conformably thereto. Gen. Sts. c. 114, § 12. In exercising this power, whilst sustaining exceptions, the court may restrict the new trial to that part of the case which alone has been or could be affected by the error. We think it proper to do so in this case. The only fact, essential to a recovery by the plaintiff, which has not been twice properly tried, is that of the credit to the quota of the town of Ware. If upon another trial the jury shall find that such credit was actually allowed, the plaintiff will be entitled to a general verdict and judgment for the amount ascertained by the verdict at the last trial, with interest from that time. Otherwise the verdict and judgment will be for the defendant.

New trial accordingly.