Tuttle v. . Rainey

Smith, C. J., (after stating the case). The admission of this declaration was resisted, as not constituting a part of the res gestee, but was allowed, and defendants excepted. An > exception similar to that first adverted to was made to the testimony of the plaintiff E. Ii. Rainey, as to the authenticity of a letter purporting to come from Thomas Rainey, based upon the same alleged want of qualification in the former witness, and whose knowledge of the handwriting was acquired in like manner. It was again objected to, that Mrs. Moore, present when the remark was made, was allo'wed tó repeat the language of the first witness, E. A. Rainey, made then and repeated afterwards: “Now we know whose land it is.” While it is true, a witness will not be allowed to testify to hand-writing, when his knowledge is acquired from a comparison of hands — that is, when the genuineness of one writing is proved aliunde — and he proposes to identify another *516 as proceeding from the same source, from their resemblance, as is decided in Pope v. Askew, 1 Ired., 16 — it is not necessary in all cases that the witness should have seen the party write, to enable him to identify the disputed writing. Thus a cashier of a bank, who had for ten years received and passed away a great many bills of the bank, from which were issued bills of the kind of that alleged to be spurious, and for passing which the defendant was indicted and was then on his trial, was permitted to testify to its being a counterfeit. State v. Harris, 5 Ired., 287. Evidence of the same kind, based on knowledge similarly acquired, was received in Gordon v. Price, 10 Ired., 385.- But a precedent more in point, and in our opinion not distinguishable from that before us, is found in McKonkey v. Gaylord, 1 Jones, 94. In this case the witness had obtained a knowledge of the writing from other transactions between them, but had never seen the party write. The witness was allowed to testify to the hand-writing. The objection to what was said when the deed was read, and repeated afterwards, and to its reproduction by the sister, is equally without support. It was indeed but a summary re-statement of the contents of the deed, which had just been read, and corroborates the witness as to the accuracy of his memory, and for the same reason its repetition afterwards was competent. The remaing exception is to the charge given to the jury to this effect: “ If they believed, from all the testimony, that James P. Rainey had in his possession, prior to his death, a paper-writing containing all the matters testified to by E. A. Rainey, and that it was a.deed, from the fact of his possession the law presumed a delivery under all the circumstances, but it devolved upon the plaintiff to establish this by clear and convincing proofs, and if the jury, upon a consideration of the whole, were left in doubt about the matter, then they should answer the issue in the negative.” *517 If it was intended to say that the law presumed a delivery from the possession of the deed, instead of that the law authorizes the jury from that fact to infer a delivery, and in the absence of rebutting evidence, to act upon it, it would be error. But the language, in connection with what follows, will not require so rigid a construction, and it should rather be understood in the other sense. The instruction proceeds to say that it devolved on the plaintiffs to establish this — that is, the facts upon which his cause of action rests, and, certainly, the delivery by clear and convincing proofs. There was nothing to contravene or weaken the force of the presumption, and in the way the case went to the jury the defendants have nothing of which to complain. Most clearly the instruction required proof of the delivery, and with this was the presumption. There is no error, and the judgment is affirmed. Affirmed.