Wiseman v. Cornish, 53 N.C. 218, 8 Jones 218 (1860)

Dec. 1860 · Supreme Court of North Carolina

53 N.C. 218, 8 Jones 218

JAMES WISEMAN, Chairman of County Court, exrel. of William Kesler v. JAMES CORNISH.

Where, in a suit upon an apprentice bond, the question was, whether the relator was of age at the bringing of the suit, and his mother was introduced to testify as to his age, it was held that a record of births, made in the family Bible, under the dictation of the mother, by one since deceased, several years after the birth of the relator, but before he was bound out, was admissible as evidence to corroborate the mother’s statement.

There is no rule of law, that the fact of a witness' standing in the relation of mother to one of the parties, naturally gives a bias to her statement, by affecting her recollection, but such relation is a matter for the consideration of the jury alone.

This was an action of covenant on an apprentice bond, tried before Osborne, J., at a Special Term, July, 1860, of Davidson Superior Court.

The only question in the case was, whether the relator was twenty-one years of age at the time the action was brought.

The mother of the relator, swore that the relator was born on the 10th of March, 1837. The writ, in this case, was issued on the 20th dajr of April, 1858. In her examination in chief, the mother gave the day of the birth of each of her children in order. To confirm the accuracy of her recollection, the plaintiff offered in evidence a record of births of her children, made in the family Bible, in the year 1842, some years before the date of the apprentice bond, on which this suit is brought. This record, it was proved, was made by a man, now deceased, by the name of Tow, at the dictation of the ■witness. Two witnesses proved that it was in the hand-writing of Tow, and that they had seen it in 1812. The testimony was objected to on the part of the defendant, bnt was admitted by the Court, in confirmation of the statement of the mother.

There was other testimony, tending to show, that the relator was born on the 10th of March, 1838.

In the course of the argument, defendant’s counsel insisted that the relation of the mother to the relator, would naturally give a bias to her statements, and moved the Court so to charge, bnt also admitted that he did not impeach her veracity or her integrity, bnt only the accuracy of her recollection. The Court submitted to the jury, the question of fact, as one for their consideration, whether the relator was twenty-one years of age at the time the suit was brought, which it was admitted, depended on the question, whether he was born on the 10th of March, 1831, or the 10th of March, 1838, that in the investigation, the family record was not evidence of itself, of the fact in controversy, and only evidence, so far as they might suppose it tended to confirm the accuracy of the recollection of the mother, it having been made before the relator was bound out, was to be regarded as in the nature of a statement, made by her, before the controversy arose. The Court made no remarks to the jury, on the relation of the mother to the relator. For this reason, and'because of the admission of the testimony, the defendant moved for a new trial, the verdict being for the relator, and upon this being refused, defendant appealed to this Court.

Scott, for the plaintiff.

McLean and Kitbrell, for the defendant.

Pearson, C. J.

The record of births in the family Bible, was admissible for the purpose of corroborating the testimony of the mother, and the necessary explanation was made by his Honor.

There is no rule of law, that the relation of mother to the party naturally gives a bias to her statements, so as to affect the accuracy of her recollection.”

We concur with his Honor, that it was unnecessary to allude to this subj ect in the charge. The defendant having had all the benefit of it, to which he was entitled by the remarks of his counsel, and it was a consideration peculiarly fit for the jury, who are supposed to be j udges of human nature, and capable of making due allowance in conséquence of the relation of witnesses to the parties, in the same way they do for the behaviour of witnesses on the stand, without having their attention particularly called to it by the Judge. There being no rule of law in regard to it, the matter must bo left to the discretion of the Judge; it is for him to decide, even although requested by the counsel, whether, under the circumstances, the due administration of the law required any special reference to such matters. There is no error.

Per Curiam,

Judgment affirmed.