
    Curtis and another against Patton and others.
    In Error.
    
      Saturday, July 8.
    Ajudgment against one, who, though defendant in writ, was not taken, and never became a party to the neons!*™
    An entry, respecting the age of a child, . , in a book, called a family bible, in the hand writing of the brother of the child, and supported by his oath, that by the direction of his deceased father, he copied that, and other entries respecting the ages of the family, from another book in which the original entries were made in his lather’s hand writing, without accounting for the non-production of the book in which the original entries were made, is not evidence.
    W RIT of error to the Common Pleas of Centre county.
    In delivering the opinion of the Court, the Chief Justice has stated every thing connected with the points viucu.
    
      Potter and Burnside, for the plaintiffs in error,
    referred to Penns. Hartman. 
      
    
    
      
      Blanchard, contra,
    cited, Thill. Ev. 175. Peake's Ev. 13. 15, 16, 17, 18. Douglass v. Sanderson.
      Jackson v. €ooley.
      
       Jackson v. Bohlman.
      
       Goodright v. Moss.
    
    
      
       2 Dall. 230.
    
    
      
      
        а) 2 Dall. 116. 1 Yeates, 15. S. C.
    
    
      
       8 John. 128.
    
    
      
       15 John. 226.
      
    
    
      
      
         Cowp. 592.
      
    
   Tilghman C. J.

In this case, two of the defendants only, were taken and became parties to the suit. These two pleaded severally ; nevertheless, the jury found a verdict against William Patton, who never was a party, and judgment was entered against him. In this, undoubtedly, there was error.

Another error has been assigned, on the trial of the issue against Samuel Patton, who pleaded infancy. In support of this plea, he offered in evidence a book, (called the family bible of his deceased father,) in which was entered the age of Samuel Patton, in the hand writing of his brother John Patton, who swore, that by direction of his father, he copied this, and other entries respecting the ages of the family, from another book, in which the original entries were made in his father’s hand writing. To this evidence, the plaintiff objected, but the Court admitted it. No account was given of the book in which the original entries were made, so that the case falls within the general rule, that a copy is not evidence, because, from the nature of the case, it appears, that better evidence might be had. If it had been proved, that the original was lost, or destroyed, the copy would have been evidence—but without that proof, it ought not to have been admitted. It is the opinion of the Court, therefore, that the judgment should be reversed, and a venire facias de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  