# Tunstall v. . Cobb

> Supreme Court of North Carolina · September 5, 1891 · 109 N.C. 316

URL: https://www.frixlaw.com/law-library/cases/9808528

## Case

- **Full name:** ROBERT A. TUNSTALL v. RICHARD COBB, Et Al.
- **Court:** Supreme Court of North Carolina
- **Decided:** September 5, 1891
- **Citations:** 109 N.C. 316; 14 S.E. 28
- **Precedential status:** Published
- **Opinion:** Dissent by Clark
- **Judges:** Very, Clark
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9808528

## Opinion text

Clark, J.
(dissenting): It seems to me that the rule is correctly stated (1 Wharton Ev., § 713) that “ when a writing, proved to be that of a party whose signature is in litigation, is already in evidence, having been put in for other purposes, then it is admissible to resort to this writing in order to determine the genuineness of the litigated instrument.” This is consonant to sound reason, and is supported by many adjudications. It has been denied b}r no decision of any Court, and is expressly followed in this State by Yates v. Yates, 76 N. C., 142 . It would seem that it should still be *328 followed as a just and proper principle. In the present case, the record states that the paper offered as an exemplar or standard of comparison, was a bond and capias, where the signature of Robert Tunstall “had been already proved” on-the trial. The plain meaning of these words cannot be controverted. It is not merely stated that there was evidence “tending to prove” such paper, nor does it appear in any way that there was any controverted evidence as to the genuineness of the signature to the capias and bond. We are not to presume that the Court below erred. The presumption is the other way. The statement that the proposed exemplar “had been already proved,” taken in connection with the fact that it is not alleged or stated that there was any evidence to contradict the genuineness of the paper, is conclusive, on appeal, of the fact that it had, indeed, been already “proved,” i. e., its genuineness not denied, when it had been offered in proof. Otherwise, the record would state an untruth, since, if the genuineness of the writing offered as an exemplar had been controverted, it could not have been “proved ” till the evidence had been passed on by a jury. If the record is true, and’ wre must take it so, the writing, which in a previous stage of the trial had been “ proved ” to be genuine, was properly allowed by the Court to be used by the expert as a standard of comparison for the signature in controversy.
Per Curiam. Error.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9808528. Public record. Not legal advice.