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of the United States in the case of Settlemier v. Sullivan, 97 U. S. 444. We think not. In the cited case the return endorsed upon the process was that it had been served by "leaving at the usual place of abode." The recital in the judgment (which was that of an Oregon court) was that "Although duly served with process the defendant did not come, but made default." By the Oregon statute a substituted service was not permitted except where, after using ordinary diligence, the sheriff was unable to serve the writ personally; and when substituted service was made the sheriff's return was required to disclose his inability to make a personal service by the use of due diligence. It will be perceived that the return before the court did not show inability on the part of the sheriff to make personal service, and the question considered was whether the recital in the judgment that the defendant was duly served with process, supplied this omission in the return. The conclusion reached was that the recital must be read in connection with the return, and could only be considered as referring to it. The distinction between that case and the one now before us is this: The recital contained in the judgment in the cited case that the writ was "duly served" is not necessarily contradictory of the return, and, read in connection with it, is an adjudication that the substituted service was due service, without regard to whether personal service had been attempted to be made or not, while in the present case the recital that the court finds there was due and legal personal service upon the defendant is absolutely contradictory of the return, and cannot be construed as an adjudication that a service by leaving a copy of the writ at the defendant's usual residence was "due and legal service" although no attempt at personal service had been made. There is nothing in the Settlemier case, as we read the opinion, which indicates the view that where the adjudication of the method of the service of process recited in a foreign judgment negatives the truth of the return of the sheriff as to the manner in which the writ was served, the return of the sheriff is to be accepted as verity, and the adjudication of the court is to be disregarded.
The Circuit Court is advised that the failure of the sheriff to show by his return a legal service of summons upon the defendant does not operate to render the judgments in
THE STATE v. ANTOINETTE BARRIS.
Submitted December 5, 1908-Decided June 14, 1909.
1. The twentieth section of the Evidence act does not prohibit the state, on the trial of an indictment for forgery, from offering in evidence, for the purpose of comparison with the alleged forged instrument, a genuine writing, made by the person whose signature is alleged to have been forged, after the question of the genuineness of the writing in controversy arose.
2. In passing upon the correctness of the ruling of a trial court admitting evidence over objection, only those grounds of objection which were laid before the trial court will be considered by a court of review.
3. On the trial of an indictment for forgery a paper writing of the defendant, made subsequent to the alleged forged instrument, is admissible for the purpose of comparison with it.
On error to Essex Quarter Sessions.
Before GUMMERE, CHIEF JUSTICE, and Justices SWAYZE and TRENCHARD.
For the plaintiff in error, William L. Edwards.
For the state, Frederick R. Lehlbach, assistant prosecutor.
The opinion of the court was delivered by
GUMMERE, CHIEF JUSTICE. The plaintiff in error was indicted and convicted of the crime of forging and uttering a check purporting to have been signed by Rose C. Lynch. For the purpose of comparison a genuine check of Rose C. Lynch, written after the making and uttering of the alleged forged
instrument, was offered and admitted in evidence against the objection of the counsel for the plaintiff in error, and its admission is made the basis of the first assignment, which is argued before us. The ground of objection is that the receipt of this genuine check was in violation of the provision of section 20 of our Evidence act (Pamph. L. 1900, p. 367). That section provides "that in all cases where the genuineness of any signature or writing is in dispute, comparison of the disputed signature or writing with any writing proved to the satisfaction of the court to be genuine, shall be permitted to be made by witnesses; and such writings and the testimony of the witnesses respecting the same may be submitted to the court or jury as evidence of the genuineness or otherwise of the signature or writing in dispute; provided, nevertheless, that where the handwriting of any person is sought to be disproved by comparison with other writings made by him, not admissible in evidence in the cause for any other purpose, such writings, before they can be compared with the signature or writing in dispute, must, if sought to be used before the court or jury by the party in whose handwriting they are, be proved to have been written before any dispute arose as to the genuineness of the signature or writing in controversy." The point of the objection is that the statute prohibits the admission in evidence of writings for the purpose of comparison unless they are proved to have been written before the dispute arose as to the genuineness of the signature or writing in controversy. But a reading of this statute shows that it has not the sweep contended for on behalf of the plaintiff in error; such writings are only inadmissible under the language of the statute when they are sought to be used before a court or jury by the party in whose handwriting they are. In the present case the postwritten check was not sought to be used by Miss Lynch but by the state. In the prosecution of criminal offences the state does not assert a private right or maintain an individual interest and there is no legal identity between it and the person who has been the victim or object of the alleged criminal act. State v. Brady, 42 Vroom 360. The provision of the Evidence act which has been invoked therefore had no relevancy on
the question of the legality of the testimony and the assignment is without merit.
The only other assignment of error argued before us which rests upon a proper exception is directed at the ruling of the trial court in admitting a writing made by the plaintiff in error and containing, among other things, "R. Lynch." The purpose of its offer was to show that the plaintiff in error was the person who had written the signature to the forged check. The paper was not written until after the forged check had been presented at the bank by the plaintiff in error and its admission was objected to on the ground that it was incompetent because of this fact. Whether the paper writing was inadmissible upon any other ground than that stated is not before us for consideration; for it is a settled doctrine of our courts that they will not review nor reverse a judgment because of an alleged error involving judicial action therein, except upon grounds which were distinctly and plainly made known in the court below. Van Alstyne v. Franklin Council, 40 Vroom 672, and cases cited.
The rule which prohibits the use of writings of the person whose signature is alleged to have been forged and made after the date of the forged instrument is enforced because of the liability of such person to depart from his normal characteristics of writing for the purpose of making evidence which would support his contention that the disputed paper is a forgery. The reason of the rule does not exist where the effort is made to show by a comparison of handwriting that the forged signature was written by the person charged with making the forgery. The fact that the writing of such a person did not come into existence until after the making of the forged document is entirely immaterial on the question of its admission in evidence for the purpose of comparison.
The judgment under review will be affirmed.
49 Vroom. Sutton v. West Jersey & Seashore R. R. Co.
ROBERT SUTTON, ADMINISTRATOR, v. WEST JERSEY AND SEASHORE RAILROAD COMPANY.
Submitted March 19, 1909-Decided June 14, 1909.
1. As a general rule, a landowner who, in the development of his property, and solely for the purpose of obtaining a more beneficial user therefrom, installs upon it an appliance which will be dangerous to people coming in contact therewith, is under no obligation to trespassers to so guard it that they shall not be injured thereby, and is not liable to them for injuries received therefrom; but where he installs the appliance for the purpose of inflicting injury upon the persons or property of those who unlawfully come upon his land, he is answerable when harm is inflicted upon them by such appliance.
2. Quare. Does this rule apply to the case of a landowner who permits an unguarded excavation to be upon his land, so near to a public highway as to endanger those who pass along the highway in the exercise of ordinary caution, and exempt him from liability to a person who, without negligence, unintentionally leaves the highway and falls into the excavation?
On demurrer to declaration.
Before GUMMERE, CHIEF JUSTICE, and Justices SWAYZE and PARKER.
For the plaintiff, Clarence Pettit.
For the defendant, Bourgeois & Sooy.
The opinion of the court was delivered by
GUMMERE, CHIEF JUSTICE. This action is brought by the administrator of Joseph Sutton, deceased, to recover the pecuniary loss sustained by his next of kin by reason of his death, the suit being based upon the theory that decedent's death was caused by the wrongful act or neglect of the defendant.
The declaration, in substance, avers that the defendant maintains and operates an electric railroad to Atlantic City; VOL. XLIX.