The herald., 1897-10-12

ceased members Of the family. are COM
petent evidence Of the facts therein
stated" (See, also, Depoyster v. Ga
gani. "a KY. 4o5; McCausland v. Flem-
ming, 65 Pa. So; Laggett v. Boyd.
wend., S76; Greenleaf v. Dubuque & s.
c. r. r. Co., 80 Iowa, SOL; Campbell V.
Wilson, 25 Tex. 252; Robinson v. Blake
ly, 4. Rich. Law. $50; Phillips on Ev..
spp. 24S. 250.) These principles have
been Incorporated into the provisions
relating to evidence in the statutes of
this state. In Part Nv. of the Code of
Civil Procedure after declaring the
general principles governing the acrnis-
sbility Of evidence, Section 1870, Che
clares: "In conformity with the pre-
ceding provisions, evidence may be given
at a trial of the following facts:
4. The act or declaration, verbal or
written, OF a deceased person in respect
to the relationship, birth, marriage or
death Of any person related by blood or
marriage to such deceased person.
13. Monuments and inscriptions in
public places as evidence of common
reputation, and er1tries in family Bibles,
or other family books or charts, engrav-
ings on rings, family portraits and the
like, as evidence of the pedigree
BY the preceding sections, which con-
troll the admission of evidence of the
facts thus enumerated, and which mere
ly declare the rules of evidence previous
ly existing, the declaration or statement
of a third person is admissible only in
certain exceptional cases the provicion
in this section permitting evidence to
be received of the written declaration of
a deceased person in the instances there
mentioned, makes it evident that the
declaration of living person is not to
be received Neither does the section
authorize the admission Of a written
declaration simply because it Is made
in family Bible, unless it is otherwise
admissible as written declaration; and
such entry when admissible is only to
be received "as evidence of pedigree"
Although the term pedigree" includes
the facts of birth, marriage and death,
and the times when these events hap
pened, and evidence of these facts is
pertinent for the purpose of establish
ing pedigree, the several facts, or either
of them do not of themselves constitute
marriage, and in case in which the ags
of an individual is the issue to be de-
termined, is not a case of pedigree.
"a case is not necessarily a case of
pedigree because it may involve ques-
tions of birth, parentage, age or rela-
tionship. Where these questions are
merely incidental and the judgment will
simply. establish debt or persons
liability on contract, or his proper set
tlement as a pauper, and things of that
nature, the case is not one of pedigree.
although questions Of marriage, legiti-
macy. death or birth are incidentally
inquired Of"
AUTHORITIES BY THE YARD
Legett VS.. Boyd g Wend, 376,), the
defense Of infancy was made to an action
upon a promissory note, and in support
of this defense the family Bible of the
parents was offered, in which the entry
of his birth had, been made by the moth
er; and its exclusion was upheld upon
the ground that the person by whom ii
was made was in court and could have
been examined. Campbell VS.. Wilson
(23 Tex, 252,) }, was of the same character,
and the evidence was excluded because
1t was shown that the mother was within
reach of the process Of the court. Green
leaf VS.. Dubuque, etc, r. R. Co., go
Iowa, 301,), was an action to recover
damages for negligence in causing the
death of person. and for the purpose of
esta blishing his age as an element in
determining the amount of damages
The plaintiff was allowed to- show the
date of his birth from an entry in the
family Bible. This was held to be error
on the ground that it was not shown
that the person who made the entry was
dead. In Robinson VS.. Blakely a Rich
Law, 5S6,), the family register of births
and deaths was held admissible to show
the age of the plaintiff for the purpose
of determining whether the action was
barred by the statute Of limitations, upor
the ground that the father, who made
the entry, was still alive. the court say
ing: "These entries stand on no higher
footing than other declara tions, and, are
entitled to no higher consideration, ex-
cept that if made at the time the fact
occurred they are more reliable" The
admissibility in evidence Of these facts
is limited, in the section above referred
to from Greenleaf to cases where they
arise incidentally and in relation to
pedigree. THUS an entry by deceased
parent or other relative, made in Bible,
family missal, or any other book, or in
any document Of paper stating the fact
and date of the birth, marriage or death
Of a child or other relative, Is regarded
as the declaration Of such parent or rel
ative in matter of pedigree" Taylor
Gays: Entries made by parent or
relation in Bible, prayer books, missals
almanacs, or, indeed, in any other book
or in any document or paper, stating the
fact and date Of the birth, marriage or
also evidence in pedigree cases IS being
a written declaration of the deceased
persons who respectively made them"
The entry in the Bible in the present
case, shown to have been made by Mrs
Shipton, as she was present in court
and had testified to the date of the
chid's birth, it was not competent for the
prosecution to introduce as piece of
substantive evidence in support of this
issue her written declara ton, made sew
eral years previously. 1t cannot be said
that the error was harmless. The evil
dence was not cumulative, but was of an
entirely different character from any
other evidence in reference to the child's
age, and the jury may we'll have given it
a credit by reason Of its formality and
apparent authen ticity, which they
would not grant to the living witness
who testified respecting the age.
THE SUMMING UP
The motion for new trial was denied
n. iYYI