| N.C. | Dec 5, 1853
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 *95 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 plaintiff 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 be read by defendant as proof."
In submitting the cause to the jury, the plaintiff's counsel asked his Honor to instruct the jury:
1st. 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 *96 ten dollars beyond what the 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 been 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. There is no error in the ruling of the Court below, or in admitting the testimony objected to: As to the latter, the testimony of Mr. Kelly was clearly competent. The rule, as stated by Mr. STARKIE, 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 York, whose signature was to be proved, by writing to him and receiving letters from him, and in this way he had acquired *97 a knowledge of his signature. The objection was, "the witness had not shown 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 casa: or during the pendency of the inquiry under the issues: or when it is simply a statement, that the defendant had 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 theactor, he charges a fraudulent concealment by the defendant of his property, and he must prove it; he 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. *98