Cushing’s Report of the Argument1
Cumberland Superior Court, Falmouth, June 1773
Richard King v. Jno. Stewart & al
This was an action of trespass—and on motion of Mr. Bradbury attorney to plaintiff after issue joined—plaintiff was allowed by the Court to strike out the names of several of the Defendants in order that they might be witnesses for plaintiff—on payment of costs—1 Wils. 89, Trials per pais 386, Str. 420, were cited.2 On the trial of the issue the plaintiff offered to prove, by comparison of hands that an anonymous letter which had been found posted on the plaintiff’s door was written by Defendant—This kind of evidence was objected to by Sullivan for Defendants—but allowed by the Court as good in civil actions.
Oliver, CJ, Hutchinson, Ropes and Cushing, Justices
1. Cushing Reports, fol. 4.
2. It was necessary for King to dismiss his action against those defendants whom he wished to have testify for him, not merely to dispose them favorably toward him, but in order to make them competent as witnesses. At common law, parties to an action could not testify. The authorities cited in the text were as follows:
Noke & Chiswell v. Ingham, 1 Wils. K.B. description begins G. Wilson, Reports, King’s Courts at Westminster, London, 1770–1775; 2 vols., 3 parts. description ends 89, 90, 95 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 508, 509 (K.B. 1745): “Lee Ch. Justice: It is agreed on all hands, that in trespass against several, the plaintiff may enter a nolle prosequi [an abandonment of further prosecution] as to one, and that will not discharge the other.”
2 Duncomb, Trials Per Pais description begins Giles Duncombe, Trials per Pais: or Law concerning Juries by Nisi Prius, etc., London, 1665. description ends 386 (8th edn., 1766): “Trespass against several; after issue joined on motion, one of the defendants name was struck out, that he might be a witness for the plaintiff. 2 [i.e. 1] Siderf. description begins T. Siderfin, Les Reports des divers Special Cases, Bank le Roy, Co. Ba., & L’Exchequer, London, 1683–1684; 2 vols. description ends 441 and the like done as to a person named in the simul cum [“together with,” i.e. the phrase linking defendants known and unknown], 1 Mod. description begins Modern Reports; or, Select Cases adjudged in the Courts of K.B., Chancery, C.P. and Exchequer, London, 1682–1738; 12 parts. description ends 11.”
Bayly v. Raby et al., 1 Str. description begins John Strange, Reports of Cases in the courts of Chancery, King’s Bench, Common Pleas and Exchequer, London, 1755; 2 vols. description ends 420, 93 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 608 (K.B. 1721): Motion to consolidate four separate declarations in trespass against four separate defendants denied, despite affidavit that the trespass, if any, was committed by all jointly. “The plaintiff may have the benefit of the other’s evidence in his action against either, but this will be to deprive him of that.”
3. M. Pothier, A Treatise on the Law of Obligations or Contracts, 2:182–186 (London, transl. W. D. Evans, 1806). An essay by the translator on the English law of handwriting evidence. “[T]he practice of the law seems to be clearly settled, that the casual knowledge or belief of a person, who has once seen the witness write, and speaks from the effect of that incident upon his memory, in respect to the character of the writing, is admissible, and a sufficient foundation for reading the disputed paper; but that a direct comparison with the greatest possible number of authentic papers, indicating the similarity to the most obvious inspection, and confirmed by the most critical scrutiny, is wholly inadmissible.” Id. at 185. This and the citation in note 4 below were obviously added, by someone unknown, at a date much later than 1773.
4. Eagleton & Coventry v. Kingston, 8 Ves. Jr. 438, 474, 32 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 425, 438 (Ch. 1803), per Lord Eldon, C: “[T]ill very lately, I never heard of evidence in Westminster Hall of comparison of hand-writing by those, who had never seen the party write; though such evidence had been frequently received in the Ecclesiastical Court.”