
    David Taylor ads. William Hawkins.
    ■Where the age of the defendant had been written in a bible, the Com-t Beld, that such memorandum in the book was not the best evidence of his age, but that he might prove it by a person who swore from mere recollection of the fact of his birth.
    Cowberry — March Term, 1821. Motion for a new trial. Tried before his honor Judge Gantt.
    
    £*HIS was a suit by summary process on an open account. The plaintiff being a merchant proved the account from, his books. The defendant pleaded infancy. To support this plea, the defendant introduced a witness who proved his infancy, but stated that he bad acquired his knowledge from a family register, or a memorandum in a family bible. The written register not being produced, the evidence of this witness was rejected.
    The defendant offered to prove his minority by a wiu ness who could speak from recollection of the defendant’s age. But the Court rejected this witness also, on the ground that the defendant’s minority could not be established without producing the written evidence disclosed by the first witness, and decreed for the plaintiff the amount of Ills account. The defendant moved the Constitutional Court for a new trial, on the following grounds :
    1st. The evidence of the first witness proved the defendant’s infancy.
    2d. The second witness ought to have been sworn and examined, to prove the defendant’s infancy.
    Bauskett, for the motion.
    
      Onml&v.i Johnson, contra.
   Mr. Justice' Colcock

delivered the opinion of the Court.

The evidence offered was competent, and should have been received. The private memorandum of an individual is of itself no evidence. When produced, it requires to be supported by an oath. It is considered as aiding the recollection of the witness, but not of the foundation of his knowledge : Thus the clerk who is called to prove a merchant’s sum, and introduces the book of original entries to refresh his memory. But he may prove the delivery of the goods without the book ; and in this case the witness may have proved the age of the defendant, (although such entry existed) from mere recollection of the fact of hie birth. In short it is the very best evidence which the nature of the case admits. If no other evidence could have been had, the memorandum, upon proof of the hand writing, may have been admitted. Even the declarations of a deceased parent have been admitted to prove the birth of a child. (Phillips, 178-9.)

The motion is granted.

Justices Nott, Richardson, Johnson and linger, concurred.  