Hutchinson v. Canal Bank ( 1854 )

Warden, J.

The drafts described in the bill of exceptions were properly rejected. The mere possession of them at the time of the trial was not enough to make them any evidence whatever against the plaintiff below. From the proof of possession at a former day, a legal presumption of continuance of the same possession down to the time of trial might have arisen. Nothing is better settled than that a presumption is sometimes well founded on the continuance, the permanency, the longer or shorter duration of a thing, the use of that thing, the state of mind, or the like, which is commonly experienced or observed. But the possession of to-day furnishes no presumption of its existence yesterday; and, at least where it stands alone, the proof of such a possession does not even tend to show an earlier one. The evidence of age manifested by a writing itself may, when connected with other proof, though the latter be very slight, assist- in verifying, or even satisfactorily establish, the date it bears; and a possession held at the time of trial, may, in some cases, satisfy the jury that it must have begun at the time when the instrument purports to have been delivered. But the mere production of a paper bearing a date anterior to the time of offering it, contains no evidence whatever that it was ever before in the keeping of the party. Where the beginning of a possession is established, its continuance, according to its own nature, and the conditions of its existence, is a fair and certain presumption. And, in the case of a deed, in many instances that might be put for illustration, the date may well be taken as the true time of delivery, although no direct proof that the party producing the paper ever had it in his hands before the time of trial should be given. But these papers are not of such a character. They *do not, in [494 any sense, prove themselves, and their mere possession is not enough to show that they existed for a single hour before they were offered. True, in such a case, fraud would not be presumed. The papers, however, are not excluded on any presumption of their fraudulent character. They arc rejected because they are not sufficiently proven, and because no presumption, either of fraudulent execution, or of earlier possession, applies to them. On this ground, as well as on the uncertainty of their identity on their face with those described by Hutchinson in the conversation with Severance, the court properly excluded them.

Judgment affirmed,.