Joseph P. Bradley

“ The first and second reasons are certainly not well assigned. The charge does not take from the jury the determination of the weight of the evidence; nor does it submit to the jury a question of law determinable only by the court. Whether the signature appended to the application, purporting to be Rabago's, if the jury believe it to be his, might legally be used by them as a standard of comparison, to aid them in determining the genuineness of the signature to the writing purporting to be a letter power from Rabago to Blanco, is the important question arising upon the charge. ”

“ The leading case in Texas on comparison of handwriting is Hanley v. Gandy, 28 Tex. 211, which only decides that other papers, not connected with the cause, cannot be introduced for the mere purpose of instituting a comparison of handwriting. No case decides that a signature to be proven cannot be compared by the jury with other papers or signatures of the party, properly in evidence in the cause. ”

“ With this I hand you the testimonio of eleven leagues of land which his excellency the governor of the state granted to me a sale of, in the department of Texas, in order that you may have the goodness to do whatever should be in your power, so that possession may be taken of them by yourself, or by a person of your confidence, giving to you the most ampl power so that you may cultivate them, may sell them, may exchange, or alienate to your entire satisfaction, because for everything I authorize you, and I will stand and I will pass in all time for that which you should do ”

“ This very fact suggests the reason why the power was returned by Williams to Blanco after the possessory title had been completed. Blanco would want it for the purpose of enabling him to make a sale. The more we consider the circumstances, the more clear it appears that the evidence is entirely harmonious, and consistent with itself. We think that the paper was property admissible as an ancient writing. It is unnecessary to dilate on the subject of ancient documents in general, and when they are admissible. ”

“ Newton, that, where different instruments are properly in evidence for other purposes, the handwriting of such instruments may be compared by the jury, and the genuineness or simulation of the handwriting in question be inferred from such comparison. ”

“ There is no recital here at all inconsistent with the testimony of Williams or of Klieberg; and, as the notary certifies that the power was exhibited to him, Blanco had no occasion to retain it in his possession. Besides, he was a near relative and friend of Rabago, and did not require it.
The other reasons given for objecting to the admission of the power are equally untenable. It is said that no possession was ever held under it, it not coming into the defendant's possession for 40 years after its execution. This is not true. ”

“ A consensual contract, by which one of the parties confides the carrying on or execution of one or more matters of business to the other, who takes it in his charge. * * * Mandate has also the name of 'procuration,' and the mandatary that of 'procurator;' but the word 'mandate' is more general, and comprehends every power given to another, in whatsoever mode it be, whilst procuration supposes a power given by writing.' Again: 'The mandate may be contracted between persons present or absent, by words, by messengers, by public writing or private writing, and even by letter, as likewise by act ”

“ It is well settled that a witness who only knows a person's handwriting from seeing it in papers produced on the trial, and proved or admitted to be his, will not be allowed, from such knowledge, to testify to that persn § handwriting, unless the witness be an expert, and the writing in question is of such antiquity that witnesses acquainted with the person's handwriting cannot be had. ”

“ It is a general power to prosecute, sue for, recover, and establish his claim to lands situated in different parts of Texas; to compromise with settlers, and sell. (4) Docket of the district court of McLennan county, showing the suits about the land before the war, styled 'Hammekin v. Graham,' and 'Hammekin v. Bell.' The original act of sale from Rabago, by Blanco, to Laguerenne, purchased by the defendants as aftermentioned, recites that the sale was made under a 'letter power,' which the officer saw, read, and returned to the party, Blanco. ”

“ If genuine, it was revoked by the war of 1835, the revolution between Taxas and Mexico, and the constitution of March 17, 1836. Tenth. It cannot act as power to make a parol or verbal sale, because no possession was taken under it within a reasonable time. These objections were overruled, the paper admitted in evidence, and the plaintiff excepted; this being the fourth exception taken at the trial. The objections made against the admission for the paper seem to be either entirely unfounded, or trivial in their character. ”

“ The defendants also gave in evidence the further testimony of said Hammekin, taken by deposition on the 26th of March, 1880, wherein he says: 'I have had the following title papers of the Rabago grant in my possession: (1) Testimonio, or second original, issued in name of Miguel Rabago; (2) a letter of attorney from Miguel Rabago to Victor Blanco; (3) sale by Victor Blanco as attorney for said Rabago to said Laguerenne; (4) power of attorney from said Laguerenne to Francis Priolland; (5) sale by said Priolland to myself. ”