Clements v. . Hunt , 46 N.C. 400 ( 1854 )

The plaintiff declared upon a bond, to which defendant pleaded infancy. Upon the trial, the defendant offered a witness, his brother, to prove the declarations of their mother and father, both now dead, made from time to time to him, anterior to this or any other controversy on the subject, as to the time of the defendant's birth: In answer to inquiries touching the competency of this evidence, the witness stated that there was a family register of births in existence; the plaintiff objected to the admissibility of these declarations and contended that they were inferior in dignity to the register. The Court, however, admitted the evidence, and upon that and other evidence (not excepted to) the defendant had a verdict.

Rule for a venire de novo upon the ground of error in the Court, in admitting the testimony excepted to. Rule discharged, judgment and appeal to this Court. The strict rules of evidence have been, upon a principle of necessity, departed from, in enquiring into facts long since past. Great difficulty would necessarily exist in their proof, if living witnesses were required. It is upon this principle that hearsay and reputation are admitted, in cases of pedigree. Thus, declarations of deceased members of a family are competent to prove relationship, as who was a particular person's grand father, or whom he married, how many children he had, or as to the time of the birth of a child. So, also, descriptions in wills, upon a tomb stone, an entry in a family bible, are all admitted. In the case before us, the witness stated "that there was a family register of births in existence." The plaintiff objected to the declarations of the parent, because they were of inferior dignity, and therefore, inadmissible. The mistake consisted in considering the declarations as of an inferior grade, in the scale of evidence, to this family register, as it is called; whereas, the grade is the same. All the writers on the law of evidence class them as such.2d Story on Evidence, 611. 1st Phil. on Evidence, 239. In GOODRIGHT v. MOSS, 2 Cow. Rep. 504, the same classification is made by Lord MANSFIELD. The general rule upon this subject is, that the best evidence is to be given which the nature of the case admits, yet the rule does not require the strongest possible assurance of the fact. If a bond is attested by several subscribing witnesses, the production of one on the trial is sufficient. So, to prove satisfaction of a plaintiff's demand, the defendant may give evidence of the admission by the plaintiff that such was the fact, though it should appear that the plaintiff had signed a receipt. JACOB v. LINDSAY, 1 East. 460; SMITH v. YOUNG, 1st Camp. 439. In general, if the distinction of written or unwritten, or direct and circumstantial, does not exist between the evidence offered and that withheld, the former will be received, though less satisfactory. The rule of the best evidence does not require all the evidence or the strongest, but that only is excluded, which, from the nature of the case, supposes evidence superior ingrade to be behind and in the power of the party. Here, as before stated, the grade of the evidence offered and that withheld is the same. The declarations were direct, and not circumstantial evidence, made ante litem, at different times; and though they might not have been equally satisfactory as the family register, they were unquestionably competent.

Judgment is affirmed.