Clements v. Hunt, 46 N.C. 400, 1 Jones 400 (1854)

June 1854 · Supreme Court of North Carolina
46 N.C. 400, 1 Jones 400


The declarations of deceased members of a family are competent to prove tfeo time of the birth of a child belonging to that family, although there may be a family register of births in existence t for the one kind of evidence is of no. higher dignity than the other.

This was an Action of Debt, tried before his Honor, Judge MANLY, at the Spring Term, 1854, of Granville Superior Court.

The plaintiff declared npon a bond, to whieh 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.

*401Rule for a venire de novo upon tbe ground of error in tbe Court, in admitting tbe testimony excepted to. Rule discharged, judgment and appeal to this Court.

A. W. Venable, for tbe plaintiff.

No counsel for tbe defendant.

Nash, C. J.

Tbe 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 be married, bow many children be bad, or as to tbe time of tbe birth of a child. So, also, descriptions in wills, upon a tomb stone, an entry in a family bible, are all admitted. In tbe case before us, tbe witness stated “ that there was a family register of births in existence.” Tbe plaintiff objected to tbe tbe declarations of tbe parent, because they were of inferior dignity, and therefore, inadmissible. Tbe mistake consisted in considering tbe declarations as of an inferior grade, in tbe scale of evidence, to this family register, as it is called; whereas, tbe grade is the same. All tbe writers on tbe law of evidence class them as such. 2d Story on Evidence, 611. 1st Phil, on Evidence, 289. In Goodright v. Moss, 2 Cow. Rep. 504, tbe same classification is made by Lord MaNSeield. Tbe general rule upon this subject is, that tbe best evidence is to be given which tbe nature of tbe case admits, yet tbe rule does not require tbe strongest possible assurance of tbe fact. If a bond is attested by several subscribing witnesses, tbe production of one on the tidal is sufficient. So, to prove satisfaction of a plaintiff’s demand, tbe defendant may give evidence of tbe admission by tbe plaintiff that such was tbe fact, though it should appear that tbe plaintiff bad signed a receipt. Jacob v. Lindsay, 1 East. 460; Smith v. Young, 1st Camp. 439. In gene*402ral, 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 in grade 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.