124 Va. 585 | Va. | 1919
delivered the opinion of the court.
M. L. Keister and D. E. Keister, executors of the last will and testament of E. E. Keister, deceased, defendants, complain of a verdict and judgment in favor of Mary E. Philips, executrix of the last will and testament of W. H. Philips, deceased, plaintiff.
The plaintiff’s motion is based upon a note for $500 made by E. E. Keister, payable to her testator, W. H. Philips. The defendants pleaded the general issue and filed a special plea alleging that on July 16, 1916, their testator, E. E. Keister, had paid to W. H. Philips, the payee of the note, $500 in part payment thereof, and that Philips had signed and delivered to Keister a receipt in writing for that sum; and they paid into court a small balance admitted to be due.
We cannot agree with this suggestion. The fact testified to was not a. declaration of Phillips, but was a fact explaining the attorney’s possession of the note, and tending to prove his principal’s ownership. Even if considered a declaration by Philips that the note belonged to him at that time, it is admissible, for declarations -and conduct as to the ownership of properly, made by a person in possession thereof, are generally admissible in evidence upon an issue as to such ownership as part of the res gestae. 10 R. C. L. 984.
It is noted in passing, that the reason for the rule prevailing in North Carolina does not apply in Virginia because of the statute (Code, section 3388) expressly permitting juries in this State to take all documents introduced in evidence with them to the jury room. The former rule has been repudiated in most, if not all, jurisdictions, and it is now generally held that such comparison of the writings is a rational method of investigation; that similarities and dissimilarities thus disclosed are of probative value, and that it is as satisfactory in the search for truth as any other method yet pursued. Indeed, it is difficult to understand why there should ever have been any doubt about it. Mr. Justice Coleridge, in Doe v. Suckermore, 7 A. & E. 706, suggests as an objection that “the English law has no provisions for regulating the manner of conducting the inquiry,” and' as Mr. Wigmore so pungently says this objection “illustrates that perverse disposition of the Anglo-Saxon judge—the despair of the jurist—to tie his own hands in the administration of justice—to deny himself, by a submission to self-created bonds, that power of helping the good and preventing the bad which an untechnical common sense would never hesitate to exercise.” ,3 Wigmore on Ev., section 2000. The modem rule which is fully approved by this court is well stated in 10 R. C. L., p. 994.
We have no doubt whatever that genuine specimens of handwriting or the signature of the person whose handwriting is involved in the issue to be determined may be
Rowfs Adm’x v. Kile’s Adm’r, supra, and Burress v. Commonwealth, supra, on this point are overruled.
It is claimed that the vice of this instruction is that it relieves the plaintiff of the burden which always rests upon him throughout the trial, to prove his case by a preponderance of the evidence. While, of course, this burden never shifts and the instruction should have been more carefully drawn, we find no substantial objection to it. The possession and production of the note by the plaintiff, without other evidence, was sufficient to prove his case, and the defendants having pleaded payment, the burden of proving such payment was upon the defendants. This is all the court intended to say to the jury, and there is no reason to doubt that they understood it.
'Affirmed.