Free v. Buckingham , 59 N.H. 219 ( 1879 )

The referee occupied no such position, and sustained no such relation to the court or the cause, as that of a master in chancery appointed to acquire and impart facts for the information of the conscience of the court; but he sustained toward the cause, the parties, and the court precisely the position of an arbitrator at common law, with no other restriction of his powers or duties than the requirement that he proceed according to the rules of equity and the practice in court, and report his decision, stating specifically his rulings upon all questions of law and all matters of fact found proved, if so requested by either party. Laws of 1876, c. 35, ss. 1, 2. This duty he has performed, and his report is before us.

I. The defendants move that it be set aside, as against the evidence. Under this motion, the first question reserved is, Can the motion be granted at the trial term? To this we reply, It can be granted at the trial term, and will not ordinarily be considered by the full bench. Fuller v. Bailey, 58 N.H. 71; Lefavor v. Smith, ib. 125; Kelley v. Woodward, ib. 153; Hill v. New Haven, 37 Vt. 501, 512. In this respect a referee's report is like the verdict of a jury.

II. The second question is, on what ground and on what evidence can it be granted? To which we reply, On the same ground and the same evidence which would avail to set aside the verdict of a jury for the cause alleged. There is no distinction between suits at law and in equity in this respect. Clark v. Cong. Soc., 45 N.H. 331. The question presented upon such a motion at the trial term is, whether the conflict between the verdict, or the award and the evidence upon which it is founded, is so strong that the court can see that the jury (or the referee) were influenced by passion, prejudice, partiality, or corruption, or unwittingly fell into a plain mistake. Rand v. Redington, 13 N.H. 72; Clark v. Cong. Soc. and Fuller v. Bailey, before cited.

On a motion to set aside the report of a referee, as being against the evidence, the judge cannot be controlled by what appears in the report, because the report does not show what the evidence was, but only the facts which the referee found from the evidence. Some of the facts reported may show that other facts reported, being inferred by the referee from the former, cannot fairly be inferred from them. There may be such an inconsistency in a report of a referee, as well as in a verdict of a jury. But usually the report states only facts, without showing from what other facts (i. e., from what evidence) they were inferred. And the evidence from which the ultimate and decisive facts are found by the referee is the very thing which it is the duty of the referee not to report, and the very thing which the judge must learn in some way before he can intelligently decide the motion to set aside the report as against the evidence. The referee not being the proper person to pass upon the question of rejecting or sustaining his own report, that question must be determined by the court at the trial term, to whom some evidence of the evidence before the referee must be produced. And if it appears that there was any substantial evidence on which the referee might have based his finding, the report will not be set aside, because it may appear to the judge that possibly, or probably, he might have reached a different conclusion upon the evidence. Clark v. Cong. Soc., before cited; Cummings v. Centre Harbor, 57 N.H. 17. On the contrary, if it appears that the report is so decidedly against the evidence as to lead to the conclusion that the referee must have been misled, or improperly influenced, or have failed to consider intelligently the evidence laid before him, then the report should be set aside as being against the evidence. Jewell v. Railway, 55 N.H. 84, 95.

We do not mean to say that a mere scintilla of evidence would suffice to sustain an award; but, in the absence of any evidence of prejudice, partiality, or corruption, or a manifest mistake on the part of the referee, the award must stand, if there appear to have been any substantial evidence upon which the referee could properly proceed to find an award in favor of the party producing it, upon whom the burden of proof was imposed. Commissioners v. Clark, 94 U.S. 278, 284; Paine v. Grand Trunk Railway,58 N.H. 611; Giblen v. McMullen, L. R., 2 P. C. App. 317, 335; Ryder v. Wombwell, L. R., 4 Ex. 32.

Upon the question of passion, prejudice, partiality, or corruption (involving the question whether the referee has fairly reported all the facts), evidence dehors the report is admissible.

The object of the reference law of 1876 was to substitute a referee for a jury in the trial and determination of those cases in which the parties should consent to such reference, and without consent in cases wherein the parties are not, as matter of right, entitled to a trial by jury; to substitute an award for a verdict, and to make it subject to the same rules which govern and control, sustain or set aside, verdicts. An award of referees and a verdict of a jury will be set aside on similar grounds. Rand v. Redington, 13 N.H. 72, 77.

III. It does not clearly appear from the referee's report for what purpose the copy of the grant of Ervin's Location was offered in evidence, nor in what respect it or its original was material. From the statement of the referee, that the copy never came into his possession, nor was alluded to in any discussion of the case after he had ruled it in, it would not seem that it was regarded by anybody as of any consequence. In their oral arguments, counsel insist that the original document would not have been admissible, and so, of course, the copy should have been excluded; — but no such objection was taken at the trial, and it cannot be considered now. The objection was to the copy "instead of the original grant;" to the copy, because it was a copy and not the original. It is manifest that the evidence which the referee ruled in, but which was practically excluded, since the referee never saw it at all nor heard of it afterward, did not affect the course of the trial nor the result.

IV. Counsel for the defendants having attended the caption of Shorey's deposition, and cross-examined the deponent, must be taken to have waived the exception, that the deposition was not taken upon written interrogatories previously filed in court, nor by special order of a judge of the supreme court.

V. There was no error of law in the referee's refusal to allow the plaintiff, Mr. Free, to be asked, on cross-examination, whether the spirit of Daniel Webster was present aiding him in the trial, and whether he had been assisted by departed spirits in obtaining information of the defence. Nor would it have been error of law to allow those questions to be put. It was a question of fact how far the proposed inquiry could usefully go for the purpose of discovering the credit of the witness. His testimony or other evidence might have been of such a character that light would be thrown upon it by a disclosure of his spiritualistic faith or practice; and his testimony and the case might have been such that there was no occasion to call for any disclosure on that subject.

VI. It is not claimed that the peculiarity of Free's religious belief affected his capacity as a witness, but only his credibility. Upon cross-examination, a witness may be asked any questions which tend to test his accuracy, veracity, or credibility, or to shake his credit by injuring his character; and to this end his way of life, his associations, his habits, his prejudices, his mental idiosyncracies (if they affect his capacity), may all be relevant. Step. Dig. of Ev., Art. 129; 1 Gr. Ev., s. 446. But it is not customary in modern practice to permit an inquiry into a man's peculiarity of religious belief. This is not because the inquiry might tend to disgrace him, but because it would be a personal scrutiny into the state of his faith and conscience contrary to the spirit of our institutions. N.H. Bill of Rights, Arts. 4, 5; Const. of U.S., First Amendment. A man is competent to testify who believes in the existence of God, and that divine punishment, either in this life or in the life to come, will be the consequence of perjury. Clinton v. The State, 33 Ohio 27. No judicial tribunal is bound to inquire, nor ordinarily will inquire, whether a witness be a Protestant or Romanist, Trinitarian or Unitarian, a Shaker, Mormon, Jew, or Gentile, a Spiritualist or a Materialist. Defect of religious faith is never presumed.

The question whether a person is disqualified to testify by want of belief in God and punishment for perjury, is a question of fact for the determination of the presiding judge, — in this case, the referee. Com. v. Hills, 10 Cush. 530, 532; 1 Gr. Ev., ss. 369, 370, and notes; Best Principles of Ev., s. 161.

The range of the cross-examination was regulated by the discretion of the referee; and that discretion is not a matter for our revision. Gutterson v. Morse, 58 N.H. 165. If in any case the court will revise the ruling of a trial judge upon the question of the competency of a witness, as affected by his religious belief, there is no occasion for such revision in the present case.

Exceptions overruled.

DOE, C. J., did not sit: the others concurred.