
    
      James A. Robinson and Eliza C. Robinson vs. John Blakely.
    
    Where a father is alive, and can be examined as a witness, his declarations, whether made orally to a witness, or in writing in the family register, are incompetent as evidence of the time of a child’s birth.
    In the plaintiff’s examination in chief, he was allowed, by the Circuit Judge, to introduce incompetent evidence — the declarations of a witness: the witness himself was afterwards examined by the defendant, whereby his declarations, previously given ip evidence, became competent for the purpose of contradicting him : verdict for the plaintiff: on appeal, by defendant, the Court refused to grant a new trial.
    
      Before O’Neall, J. at Laurens, Spring Term, 1851.
    This was an action of trover, commenced 25th Sept. 1848, to recover damages for the conversion of four slaves, Milly and her children, Sam, John and Rachel.
    Milly, by the will of James Kolb, dated 13th Oct. 1802, was bequeathed to his daughter, Elizabeth Lawson Kolb, for life, and after her death to her children. Elizabeth Lawson Kolb married Clark Robinson, and died in Sept. 1824, leaving the plaintiffs, her only children, her surviving. In 1832 or ’33, Clark Robinson sold Milly, Sam, John and Rachel to the defendant, and he shortly afterwards sold them in Alabama.
    “ The great struggle in the case,” says his Honor, in his report, “ was, as to the age of James A. Robinson; for it was fully proved that Eliza was born in 1820 : she had been, therefore, of full age more than four years before suit was brought, and was barred by the statute.
    
      “ It'was most abundantly proved, in the course of the case, that Janies A. Robinson or Alphonsus James, as he was styled in the family register', was born 29th January, 1824; he was, therefore, not barred at the issuing of the writ, by- four months. At first, it is true, I admitted proof of Clark Robinson’s, the fa,ther’s, declarations as to the plaintiffs’s ages, and also an extract from the' family register. This, it- seemed to me, was clearly admissible to-prove age, and more especially, as the defendant claimed under the man making the declaration, and having the family register in possession. Afterwards, .in the progress' of the casé, Clark Robinson was examined for the defendant.' The family record was produced; it had be,en mutilated by tearing off the 4’ or other figure. - Clark Robinson affirmed it had been done accidently, by turning over the leaf; he did not undertake to say what was the age- of the plaintiff, James A. ’
    “James Finley proved. that he saw' the record when it was perfect, ‘ 29th January, 1824;’ so did S. W.- Robinson, a half-brother of the plaintiff. He proved that -the figure ‘ 4’ has since beentorn off To . James A. Smith, Clark Robinson, in the fall of ’48, stated that the plaintiff, James A., was born in 1824; Mr. Wallace stated that, in 1829, James A. appeared- to be four or five years of age. It abundantly appeared that Clark Robinson had declared he. would do all he coiild to defeat the plaintiffs.”
    . ■ The jury found for .the 'plaintiff,- James A., one half of the value of the' slaves, and hire from the lodgment of the writ, and against the plaintiff, Eliza C., on the plea of the' statute. ■
    The defendant appealed, and now moved for a new trial — the 2d and 3d grounds of appeal' were as follows : '
    2d. Because his Honor,'the presiding Judge, (it is respectfully submitted,) erred in ruling that the declarations of the father of the plaintiffs were admissible to prove their ages, when the father was living, and might have been examined to that point by plaintiffs.
    3d. Because his Honor also erred in permitting plaintiffs’s witnesses to prove the contents of the family record of Clark Robinson, although the original was in existence, and might have been produced by the plaintiffs.
    
      Irby, for the motion,
    cited 1 Green. Ev. § 99.
    
      Sullivan, contra,
    cited 2 Stark. Ev. 610 ; Story on Agency, §309, 310, 311.
   Curia, per

Evans, J.

The 2d and 3d grounds of appeal are entitled to grave consideration. These embrace the questions, whether the declarations of Clark Robinson, the father of the plaintiffs, as to the time of their birth, and the contents of what was called the family register of births and deaths, were admissible. The father, whose declarations were received, and by whom the entry was made, being still alive. These entries stand on no higher footing than other declarations, and are entitled to no higher consideration, except that, if made at the time the fact occurred, they are more reliable. The proof is more satisfactory, more likely to be true, than declarations made after-wards from memory.

I think there is nothing in the idea that they were admissible, because the defendant purchased the negroes from Clark Robinson. What a man says in relation to his title, or the defects of any thing of which he is the owner, are admissible against a purchaser from him, on the reasonable assumption that at that time life would speak the truth. But they are received as admissions, and stand on the same footing as admissions by the party to the suit. But such admissions are never received, if made afterwards. Nor is there any thing in the fact that he, Clark Robinson, had declared his intention to do all he could to defeat the plaintiffs’s title. He was a competent witness, and the opposite party cannot be deprived of the guaranty of his oath, and the benefit of cross-examination.

These declarations, therefore, if admissible, must be on the ground of hearsay. This species of evidence comes under the classification of secondary, and is so classed in a recent treatise on the Principles of Evidence by Best, in the 66th vol. of the Law Library. This author, in speaking of this kind of evidence, p. 234, says: “the true principle is to consider, not whether evidence comes by word of mouth, or by writing, but whether it is original in its nature, and not indicating any better source from which it derives its weight.” The general principle is, that secondary evidence is not admissible when higher evidence is accessible; but among the exceptions to this rule is that which admits hearsay in certain matters, “ as the fact of relationship between certain persons, the births, marriages and deaths of members of a family.” If it be only secondary evidence, it follows of course that it can never be admitted whilst the primary evidence is in existence; and of course the declarations of Clark Robinson, as to the fact in dispute, whether made orally to witnesses, or in writing in the . family register, are inadmissible. Best, speaking on this subject, says : these, likewise, partake of the nature of historical facts, in this, that they refer to matters which have occurred in times and among persons who have passed away.” To the same eifect are all the writers on the law of evidence. (See 1 Green. Ev. § 99.)

I think, therefore, that neither the declarations of Robinson, made orally or in writing, were admissible as evidence, as to the time when his children, the plaintiffs, were born, on any of the grounds supposed, and that the plaintiffs might have been non-suited for want of proof to take their case out of the statute of limitations, but for the evidence of Wallace, who said that in 1829 the plaintiff, James A., appeared to be 4 or 5 years old.— This; if offered, as I suppose it was, in the evidence in chief, would entitle the plaintiffs to go to the jury. They could not, at the trial or now, be nonsuited, if there was any evidence to prove they were not barred. But the defendant, in his evidence, read the examination of this same Clark Robinson, and gave in evidence, unobjected, the same family register — the contents of which had been previously given on the part of the plaintiffs. The substance of Robinson’s evidence was, that he could not speak from memory without reference to the register, and that that had been torn so that he could not ascertain the time. Now, as he was the defendant’s witness, it was competent for the plaintiffs to contradict him, and to shew that he did not speak the truth when he said he did not know whether his son was born the 29th January, 1824, by proving that he had said so to James A. Smith. The register was offered by the defendant, I suppose, to confirm Robinson as to the fact of mutilation, which is the only ground upon which I can perceive it was admissible.

The evidence of Finley and S. W. Robinson would then be admissible to prove that it was unmutilated at a very recent period, and that, as it was in his possession, it had been intentionally mutilated to carry out his declared purpose of defeating the plaintiffs’s action. I think, therefore, the objected evidence, although not admissible originally, was clearly admissible in reply. And the question now is, whether we shall grant the defendant a new trial on this ground ? There is no definite rule on the subject of granting new trials. The jury have heard, all the evidence, and they have heard none but what was proper for them to hear. The only objection is, that they did not hear it at the appropriate time. We do not perceive that in the end the defendant’s case has been prejudiced by what has been done, or that any other result can be obtained by another trial; and the motion must, therefore, be dismissed.

O’Neall, Withehs and Whitnee, JJ., concurred.

Motion dismissed.  