#### THOMAS B. NEWTON v. CARRIE NEWTON.

(Filed 21 September, 1921.)

1. Evidence — Writing—Genuineness—Jury—Statutes.

Tbe principle, formerly recognized in tbis State, tbat confined tbe proof of bandwriting to tbe testimony of a competent witness in comparing tbat sought to be established with bandwriting either admitted or proven as tbat of tbe party, has been changed by statute, C. S., 1784, and where tbe disputed writing has been rendered competent under tbis principle, it may now be submitted to tbe jury, together with that admitted or proven since 5 March, 1913.

2. Appeal and Error — Irrelevant Evidence — Harmless Error.

In this case the handwriting sought to be introduced as evidence before the jury and to be considered by them was irrelevant, and the action of the court in refusing to let the writing be submitted to the jury, to determine its genuiness, under the statute, was harmless error. C. S., 1784.

Appeal by plaintiff from Oalvert, J., at April Term, 1921, of Edge-combe.

Tbis is an action for divorce. Yerdict and judgment for defendant. Appeal by plaintiff.

G. M. T. Fountain & Son, and, Don Gilliam for plaintiff.

Allsbrook & Philips for defendant.

Clare, C. J.

A letter purporting to be from tbe defendant was offered as competent evidence against her, as tending to show tbe misconduct alleged. Its genuineness being denied, tbe judge admitted witnesses to compare tbe signature and bandwriting of tbe letter with tbe *55defendant’s signature to tbe answer, wbicb sbe admitted to be genuine, but refused to permit tbe writings to be submitted to tbe jury for tbeir inspection.

In Outlaw v. Hurdle, 46 N. C., 150, tbe Court beld tbat while witnesses can testify to tbe genuineness of tbe bandwriting by comparison with other papers admitted or proved to be genuine, tbe jury must pass upon its genuineness upon tbe testimony of witnesses, bolding: “Writings are not properly submitted to a jury’s inspection. As a general rule all evidence is addressed to tbe bearing of tbe jury and not to tbeir sight.” In Tunstall v. Cobb, 109 N. C., 321, tbe Court said: “In North Carolina it seems to be settled law tbat an expert in tbe presence of tbe jury may be allowed to compare tbe disputed paper with other papers in tbe case, whose genuineness is not denied, and also with such papers as tbe party whose bandwriting gives rise to tbe controversy is estopped to deny tbe genuineness of, or concedes to be genuine, but no comparison by tbe jury is permitted. Pope v. Askew, 23 N. C., 16; Outlaw v. Hurdle, 46 N. C., 150; Otey v. Hoyt, 48 N. C., 407; Yates v. Yates, 76 N. C., 142; Fuller v. Fox, 101 N. C., 119,” and this has continued to be tbe settled law in this State. See cited cases to Tunstall v. Oobb, in the Anno. Ed.

But a recent statute, cb. 52, Laws 1913, now 0. S., 1784, has provided, “In all trials in this State, when it may be otherwise competent and relevant to compare handwritings, a comparison of a disputed writing with any writing proved to tbe satisfaction of tbe judge to be genuine, shall be permitted to be made by witnesses, and such writings and evidence of witnesses respecting tbe same may be submitted to tbe court and- jury as evidence of tbe genuineness or otherwise of tbe writing in dispute, provided this shall not apply to actions pending on 5 March, 1913.” Tbe last line is an unequivocal declaration of change in tbe rule obtaining theretofore.

As we understand tbe statute, tbe admission of testimony as to tbe genuineness of a writing by comparison of bandwriting is now on tbe same basis as tbe declarations of agents. Tbe Court determines whether there is prima facie evidence of agency or of tbe genuineness of writing admitted as a basis of comparison, and then tbe testimony of tbe witnesses and “tbe writings” (in tbe plural) themselves are submitted to tbe jury. It is fair to tbe presiding judge to say tbat this statute was not called to bis attention. It was adverted to by Walker, J., in Bank v. McArthur, 168 N. C., 55, though tbe disputed writing in tbat case did not come within tbe statute.

Though it was error to exclude tbe writings from tbe jury if tbe testimony was competent and pertinent, it was not reversible error in this *56instance, for we are of opinion tbat tbe letter, if genuine was irrelevant, not tending to prove any fact or circumstance in issue, and tbe refusal to submit tbe writing to tbe jury to determine its genuineness was harmless error.

Upon tbe whole case we can find no error of which tbe plaintiff can complain.

No error.