Seavey v. Seavey , 37 N.H. 125 ( 1858 )

Bell, J.

There is a large class of proceedings, which are not judgments, and which, in many cases, can be regarded as judicial proceedings only by a very liberal construction of that term, which are admissible in evidence. They are the results of inquiries, made under public authority, concerning matters of public or general interest, though the affairs to which they relate may be private. They are generally the conclusions of juries, commissioners, or other officers under oath, and often, though not necessarily, based on evidence taken under oath.

Among the cases cited in the books, of the admissibility of this kind of evidence in England, are Damesday Book, inquisitions post mortem, inquisitions of lunacy, inquisitions relating to crown lands, under commissions from the court of exchequer, inquisitions relative to the fees of public officers, under an order of the house of commons, sheriffs’ inquests, under a writ de proprietate probanda, in replevin, coroners’ inquests of feto de se, and many other inquisitions. The valor benefieiorum, surveys of church and crown lands, taken by commissioners under the parliament, inquisitiones nonarum, and the like, which are enumerated and described in 2 Phil. Ev., chap. 1, sec. 8, pp. 95 and 96.

These proceedings are generally unknown in our practice, but the principle on which they are admitted is nevertheless a part of our law. That principle is, that whenever persons are appointed by the law, or under the authority of law, to investigate any matter of fact under oath, and to make a return or report upon the subject, the same being the foundation of no judgment or judicial decree between parties, the return or report so made is admissible in evidence between those who were in no sense parties to the proceeding. It is, however, in general, prima fade evidence only, and not conclusive, though in some cases made conclusive hy statute.

Among the cases where evidence is admitted among us upon this principle, is the ease of the proceeding before the court of probate, which takes the place of the inqusition of lunacy. By statute, these proceedings are made conclusive upon those who deal with the non compos in the way of contracts, purchases, or sales, after certain public notices. Revised Statutes, chap. 150, secs. 20, 21.

But these proceedings are evidence of insanity, upon the question of capacity to make a will, or to commit a crime. Hart v. Damon, 8 Wend. 498; Asterhant v. Shoemaker, 8 Hill. 513; Bannatine v. Bannatine, 14 E. L. & E. 381; Wadsworth v. Sherman, 14 Barb. 171; Leonard v. Leonard, 14 Pick. 280; Breed v. Pratt, 18 Pick. 115; 2 Cowen & Hill’s Notes to Phil. Ev. 218.

In this State it has been held that surveys, made by the selectmen of towns, by authority of the legislature, were evidence of the lines of those towns, in suits between individuals, owning lands bounded on the town lines. Adams v. Stanyan, 24 N. H. (4 Foster) 405; Lawrence v. Haynes, 5 N. H. 34.

So the perambulations required to be made by selectmen of the lines of their towns, at certain stated intervals, are evidence in any case, where those lines may come in question. Ibid.

The case of the inventory in question seems to us to stand upon the same ground, and to be governed by the same principles. It is made the duty of the court of probate to issue a warrant to three suitable persons, appointed by the court, to make a just and impartial inventory and appraisal, under oath, of all the real estate, goods and chattels of the deceased, and a correct schedule of his notes and written evidences of debts, to be returned to the court. This is evidence against the administrator, because it is returned under bis oath, but it is evidence for many purposes as to eveiy body, because it is a return of facts made under oatb, by persons appointed by authority of law, to make such appraisal and return. Phill. Ev. 95; Willoughby v. McClure, 62 Wend. 608.

We have carefully examined the charge of the court, to which exception is taken, and are of opinion that the instructions are in substantial conformity to the decision of the court in the case of Munger v. Munger, 83 N. H. 581. In that case it was held that, where a child continues to form a part of the same family with the father and mother, or one of them, each contributing their services in carrying on the farm, or other business, and in supporting the family establishment, the relation of parent and child alone would be presumed to exist between them, and no contract would be presumed by which one should become indebted to another, unless some proof of an express contract is offered, or such circumstances, connected with their dealings together, are shown, as fairly to Warrant the inference that it was the understanding and expectation of the parties, on both sides, that such services were to be paid for by another parly.

The same rule must equally apply to the case where children, residing with parents, carry on in common the property they respectively own, the proceeds of the whole property being applied to the common benefit of the family, or to the improvement of the common property. The attention of the jury was distinctly turned to the point, that if there was any evidence which satisfied them that it was the agreement, understanding or expectation of the parties, that the articles for which payment is claimed were to be paid or accounted for, the plaintiff was entitled to recover.

Judgment on the verdict.