
    RYERSON v. GROVER AND OTHERS.
    1. The court cannot decide that one of the parties is an infant — it must he determined by the jury ; and until the jury have found him to be an infant, he is a party interested, and cannot be admitted as a witness.
    
      2. A witness to prove the infancy of one of the defendants, swore that the defendant was born within a few days of her own son, and to prove his age she produced a copy of an entry in a family bible, which she swore was a true copy. Such evidence is inadmissible: the bible itself should be produced.
    This was an action of debt on a bond, to which the defendants pleaded — 1st. Non est factum. 2d. Infancy of Thomas Grover, one of the obligors. 3d. Perfraudem,,
    
    On the trial these points occurred: 1st. The defendants having offered their evidence to prove the infancy of Thomas Grover at the execution of the bond, moved the court to admit this defendant to prove the fraud of the plaintiff in obtaining the bond, by putting off upon the obligors, knowingly and fraudulently, counterfeit instead of genuine continental money.
   Per Cur.

The fact of the infancy of Thomas Grpver is at issue upon the record, and this issue has'been submitted to a jury for their determination. We cannot say the fact has been fully proved; perhaps the jury may be of opinion the proof is insufficient, and we cannot anticipate their judgment. This obligor is both a party to the suit and interested in its event until acquitted by a verdict; and there is no principle of law to warrant his admission as a witness. He must b.e rejected.

2d. The counsel for the plaintiff then moved the court that the evidence of Mary Mount, which had been given to prove the age of Thomas Grover, might be overruled, and the jury directed to throw it entirely from their consideration.

The witness had sworn the defendant was born within a few days or weeks of her own son, and to prove her son’s age she produced a paper which she said contained a copy of an entry of his birth made in the family bible; this copy had been made by her daughter, in her presence, and compared [459] and found correct by herself. The bible referred to contained entries of the births of the other members of the family, and was considered by them all as containing correct statements.

Upon her cross-examination, she stated she had no precise or particular recollection of the year hr month in which her son was born, but grounded her belief wholly upon the entry in the bible, which she believed was a true entry.

The counsel for plaintiff contended that the bible itself was the best evidence to prove the age of defendant, and, in fact, the only evidence, as the witness did not pretend she had any recollection of the date herself, but her testimony was founded altogether upon her belief in the authenticity of the bible. Sworn copies of original papers were admissible only in cases where the originals were lost, or in the hands of the adverse party, who had refused to produce them; or in the ease of public records or court documents, the originals of which were not removable; or in some particular cases under special statutes, and that the case before the court came within none of these principles.

Per Cur

The evidence was improperly admitted. The testimony of the witness does not amount to proof of the fact of infancy. It goes merely to establish a collateral point, that a certain entry has been made in a particular book, which entry proves the fact in issue. The book itself is therefore the only evidence to this point, unless the witness can speak from her own knowledge. Doe, ex dem. Church et al., v. Perkins et al., 3 T. R. 749, is express upon this point.

The jury, therefore, are to pay no manner of attention to what this witness has said upon this point, and there is no other testimony to exonerate Grover, by showing him to be an infant.

Verdict for the plaintiff.  