Bruce v. Crews , 39 Ga. 544 ( 1869 )

McCay, J.

Handwriting is proven by one who has seen the asserted author of the writing write, or who has, in any reliable way, become acquainted with the hand. By our Code, section 3786, if one testify that he knows the hand, he is competent. How he acquired the knowledge may be inquired into, and the result of the inquiry is for the jury. The witness is competent, his credibility, the character of his knowledge, is a thing of degree. But if the witness do not testify affirmatively, but says, that from the knowledge so aud so acquired I am of opinion, etc., then the nature of that knowledge may or may not render him incompetent. In this case the witness does not state that he knew the hand, but says that from having read letters, etc., he thought, etc. Clearly, in order to be able to know a handwriting, so as to testify on the subject, the witness must have seen the party write, or have read papers, expressly or by implication, acknowledged by the writer to be genuine. Greenleaf, 1 vol., 577.

Had this witness done either ? He never saw Crews write. He only professes to have read certain letters, to-wit: letters which came to a business house at which he was clerk, purporting to be written by Crews. These letters were not in reply to any letters witness had written or had seen written. "What was this but hearsay ? The witness knew they were defendant’s letters simply because they bore his name, and because the house at which he was clerk recognized them as his. "We do not think this is within the rule. There must be some recognition by the assumed writer, and of this the witness must testify of his own knowledge. The witness does' not pretend to this, and is insufficient. 1 Greenleaf’s Evidence, 577, and notes and authorities there cited.

The effort made in this case was to introduce a copy of a letter which was lost or destroyed, and the proposition was to prove that the copy was a true copy of a letter which the witness, from the knowledge before alluded to, believed to be a genuine letter of Crews. The letter was not proposed to be produced to the jury, all was to depend upon the witness’ knowledge. We think the Court did right to reject the witness. The knowledge he had was nothing but hearsay, and as he only pretended to know the handwriting of Crews from this hearsay, we do not think he was competent.

After failing in this, the plaintiff proposed to show the witness several papers which had been proven before the Court to be in the handwriting of Crews, and then ask the witness if the paper he had copied was not, from its resemblance to these writings, also in Crews’ handwriting. We agree with the Court below that- this was also inadmissible. This is not the case of permitting a witness, an expert, to testify írom a comparison of papers, all present before the jury. This is a simple case of educating the witness in the presence of the Court up to the point of competency. He is asked if certain papers now before the Court do not satisfy him that another paper, not before the Court, was in the hand writing of Crews.

The rule requires that a witness called to prove handwriting, shall testify from having seen the person write, or from a knowledge of his hand acquired from writings acknowledged by the party. The case now proposed is to make him competent from knowledge acquired by seeing writings which third persons have said, under oath, were genuine. In our opinion this does not come up to the rule, and is not sustained by the authorities. Section 3787 of our Code requires the writings, to be used for comparison, to be present to go to the jury, and they must, besides, be submitted to tlie other party before trial.

The contract relied on here is a mutual one. Crews agrees to haul the cotton, and the plaintiff to pay him so much per bag for so doing. In such cases, before a recovery can be had on either side, there must be proof that the party complaining had offered to perform on his part. 1 Chitty Pl., 331; 5 Tenn. R., 409; 13 Wend., 285; 1 Saunders Pl. & Ev., 212; Biggers vs. Poe, 5th Georgia Rep., 172. There was no such proof in this case, and the verdict of the jury may be supported on this ground, and if that is the case, it is the settled rule of this Court not to disturb it.

On the trial there was a great deal of evidence going ’to show that Crews was prevented from hauling-this cotton by the militaiy authority of the United States. At that time, as the history of the times informs us, (and this Court will recognize such history,) those authorities were the paramount governing power in South Carolina and Georgia. There was evidence also that there was good ground to suspect, indeed we do suspect, that this cotton, was cotton that under the rules enforced by those authorities, was liable to seizure as blockade cotton. It was in fact seized. If this seizure was by the contrivance of Crews, as the plaintiff contended, on false representations, he, Crews, could not justify himself. But much of the evidence goes to show that the seizure was well founded, that is, that the cotton was blockade cotton. All this was for the jury; they have passed upon it and found for the defendant, under a fair charge of the Court. We do not think the verdict shocks the moral sense, or is so contrary to the evidence as to be conclusively illegal, because based on prejudice or corruption. We think there was evidence from which the jury might fairly believe this was blockade cotton, and that the military authorities might have seized it by virtue, not of false, but of true statements of Crews. We will not therefore disturb the verdict.

Judgment affirmed.