McKonkey v. Gaylord, 46 N.C. 94, 1 Jones 94 (1853)

Dec. 1853 · Supreme Court of North Carolina

46 N.C. 94, 1 Jones 94

WHITLEY McKONKEY & CO. vs. S. F. GAYLORD.

A witness who has had business correspondence with an individual unknown to him, Who has written letters to him, and has received answers in reply, and swears that in this way he has acquired a knowledge of his signature, though not of his general hand writing, is competent to testify to such signature. „

The Court has no right to pronounce upon the force and effect of evidence, because it is contained in an affidavit for a continuance, which is admitted by the opposite party to be true.

This was an issue of fraud under the Statute upon the return of a ca sa, tried before his Honor, Judge Ellis, at Fall Term, 1853, of Washington,Superior Court.

Among other specifications, was one for concealing money beyond ten dollars in amount.

It was proved by the plaintiff that a certain amount of money had been received by the defendant shortly before the issuing of the ca sa. In order to show that .he had honestly disbursed this amount, the defendant offered a paper in writing, signed by a person living in the city of New' York : a witness (Mr. King) was called to prove the signature, and upon the enquiry as to his qualification, he stated, that he had had business correspondence with the signer; that he had written letters to him and had received letters in reply, and in this way had acquired a knowledge of his signature, but not of his general hand writing. The plain-' tiff objected to the admission of this witness, as not being qualified to prove the signature in question; but his Honor held the witness was competent, and he was accordingly examined.

The following statement was filed by the plaintiff’s counsel, in lieu of an affidavit for a continuance, and admitted by defendant:

“Attorney, for the plaintiff, states, that he expects to prove by J. H., an absent witness, that he has frequently seen the defendant with more than ten dollars in his possession : that he has seen him at the card table frequently betting money, in which the rules of the game were cash: that the defendant frequently -won and lost considerable sums of money.” Endorsed, “admitted to bo read by defendant as proof.”

■ In submitting the-cause to the jury, the plaintiff’s counsel asked his Honor to instruct the jury:

Isl That an admission was contained in the statement filed, that the defendant possessed more than ten dollars beyond what the law allowed, and he thereby concealed as charged in one" of the issues.

2nd. That the statement was an admission that he had more money than ten dollars during the pendency of this suit, beyond what the law allowed him.

3rd. That it was an admission, that shortly before the bringing of this suit, or shortly thereafter, or during the pendency of the same, he was possessed of more money than •ten dollars beyond ¡what tbe law allowed him, and was bound to surrender it up, ;and that the retaining,of it was a concealment.

The Court refused the instructions, as prayed for, and told :the jury that without undertaking to intimate to them the force and effect of .the .evidence, it was submitted to them in the language in which it had bee.n written down in the statement, and that -they should give it such weight as they thought it entitled to, in showing that the defendant concealed money since the beginning of these proceedings, and .the issuing of .his notice to the plaintiff. That if they were satisfied that the defendant had in .possession, since that time, the money referred to in the statement, or any.other, and that he made no disclosure thereof in his schedule, then they should find the .fraudulent concealment as charged in the issue.

Verdict for the defendant. ,,Rule -.for a new trial,; rule ■ discharged. Appeal.

.No .counsel for the plaintiff

.Heath and Smith, for the defendant.

Nash, C. J.

There is no error in the ruling of the Court ffelow, or in admitting the testimony objected to: As to the latter, the testimony .of Mr. Nelly was clearly competent. The rule, as stated by Mr. StaRKIP, in his Treatise on Evidence, 2 vol., p. 372, is, that the witness must either have seen the party write, or have obtained a knowledge, of the • character of his writing, from a correspondence with him ¡upon matters .of business, or from transactions between •them, such as having paid bill of exchange for time, for ¡.which he has afterwards accounted. The witness testified ¡that he had corresponded with the merchant in New Xork, whose signature was to be proved, by writing to him and .receiving letters.from him, and in this way lie had acquired a knowledge of bis signature. Thé objection was, “ the witness bad not shewn himself qualified to speak of it.” It is within one of the above modes stated, whereby the competent knowledge may be acquired, and the witness professed in that way, he had acquired his knowledge of the signature. The other portion of his testimony might enable the jury to ' give the whole its proper weight, which was submitted to the jury as belonging solely to them. See Doe on dem of Mudd v. Suckerman, 31 E. C. L. R. 406. Pope v. Askew, 1st Ired., 16. State v. Harris, 5th Ired. 287. Gordon v. Price, 10th Ired. 385.

His Honor’s charge upon the statement made a part of the case, and was correct. That statement was entirely too vague and -uncertain, as to the period when the defendant was seen in the possession of the 'money: Whether, before the writ in the case issued: or’before he was arrested under the ea sa: or during the pendency _of the inquiry under the issues-: or when it is simply a statement, that the defendant had1 been seen gambling, and to possess more than ten dollars. The statement could not aid the jury in coming to any conclusion, as to the time when he was so seen in possession of the money. If such testimony was sufficient to deprive a defendant of the privilege "intended by the Legislature, in the act under which the proceedings . are had, it would hold out to him a false hope; for it embraces the whole life of the defendant! In every such issue the plaintiff is the actor, he charges a fraudulent concealment by the defendant of his property, and h¿ must prove it; ho ■must, in the language of his Honor, “ show that the defendant concealed the money since the beginning of these proceedings.” No man can be expected to account for every trifling sum of money, which may have been in his possession-at an indefinite period of time. .

' Judgment affirmed.