
    Samuel R. Hutchinson and Thomas Floyd v. The Canal Bank of Cleveland.
    In an action on an acceptance, in which, by proper plea, the defendants denied that they had accepted the bill, testimony was offered to show an admission by defendants, that they had become hound by acceptances in favor of the same drawer, on two bills, of which the plaintiff claimed that declared on to be one. To prove that the two bills, whose execution had been thus admitted, had returned to the defendants, the latter produced, and offered to put in evidence, two bills bearing date anterior to the admission, drawn by the same drawer, and shown to be signed with his signature, but did not prove, or offer to prove, that they had ever been in the drawer’s hands, or that the defendants had ever become bound on them. Held, that the court properly rejected the bills-so offered as evidence.
    Error to the district court of Cuyahoga county.
    The plaintiff below, here defendant, declared against the defendants upon the bill of exchange, drawn by S. Holmes & Co., for $3,000, and accepted by the defendants. The defendants by their plea denied that they had accepted the draft upon which the action was founded. In the Superior Court of Cleveland the plaintiff obtained a verdict, whereupon the defendant moved for a new trial, which motion being overruled, the defendant tendered the follow-491] ing bill of ^exceptions : “ Be it remembered, that on the trial of this cause, the plaintiff, in order to prove the issue on its part, called a witness, T. C. Severance, who testified, among other things, that he was, prior to the date of the draft declared on, and still was, cashier of said Canal Bank. That on the 20th day of October, 1851, said draft was discounted by said bank for William Hittleberger, who then indorsed the draft, and that the draft was immediately sent away. That two or three days after the draft had been discounted arid sent away, the defendant, Hutchinson, called at the bank and made an application for a discount, and, as a reason why it ought to be granted, he remarked that the bank did not then hold any of his paper or that of his firm (S. R. Hutchinson & Co.) He further testified that he then told said Hutchinson that the bank had discounted the draft in question; that Hutchinson seemed to be very' much surprised, and said that there must be some mistake, that the paper could not be theirs; that witness turned to the books and gave Mr. Hutchinson a description of the draft; that Hutchinson still seemed surprised, and said there must he something wrong about it, and repeated the expression several times that there must bo something wrong about it, and went on to remark that Holmes, the drawer of the draft, had not had but two acceptances, or pieces of the paper of said S. R. Hutchinson & Co.; that he had had those two for the purpose of getting them discounted east for the benefit of said Hutchinson & Co., or to replace money which they had advanced to said Holmes; and that said Hutchinson further remarked that Holmes had not been able to get the paper discounted east, and that one of the pieces had already been returned to them (Hutchinson & Co.), and that the other was lodged in some bank east for discount, and if not discounted, was soon to be returned to them, the said S. R. Hutchinson & Co. Witness did not recollect whether said Hutchinson, in speaking of the two .pieces of paper which had been given to said Holmes, used the expression, acceptances or pieces of paper, but witness understood him to mean acceptances, *as they [492 were spoken of in connection with the conversation in relation to the acceptance declared on in manner above stated.' Said witness stated that he had had two conversations with said Hutchinson on the same day, one before and one after he (Hutchinson) had seen Holmes, the drawer of the draft. Witness said he did not know whether it was at the first or second of these conventions that said Hutchinson had spoken of the two acceptances or pieces of paper, which had been given to said Holmes, but it was at one of them, and before said Hutchinson had an opportunity to see the draft which had been discounted. Several witnesses were examined on both parts touching the genuineness of the signature of S. R. Hutchinson & Co. (the defendants) to the draft declared on ; and the plaintiff had also offered testimony tending to prove that said S. R. Hutchinson had, a short time previous to the date of the draft declared on, written something on a sheet of blank drafts, similar in form to the draft declared on, and left them with said Homes ; which testimony had been offered in order to prove that he gave said Holmes blank acceptances. After the testimony was closed on the part of the plaintiff, and after the defendants bad called sundry witnesses on other points made in the case, in order to prove that the two pieces of paper which said'Hutchinson had stated to said Severance that he or S. R. Hutchinson & Co. had given to said Holmes had been returned to said defendants, and for no other purpose, offered in evidence two drafts (annexed), having first proved that the signatures of the drawers, S. Holmes & Co., were genuine.”
    The plaintiff objected to the admission of the drafts, unless it also be proposed to prove that the defendants had become parties to the drafts, and also that the drafts had been in the hands of said Holmes. The counsel for the defendants having stated that they did not purpose to offer any additional testimony respecting the drafts, the court sustained the plaintiff’s objection, and ruled out the drafts, to which ruling the defendants excepted.
    493] *The district court affirmed the judgment of the Superior Court; whereupon the plaintiff in error filed this petition in error.
    
      C. Stetson, for plaintiffs in error.
    
      Bishop, Backus, and Noble, for defendant.
   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,.  