
    
      DAVID vs. SITTIG.
    
    East’n District.
    
      April, 1823.
    Appeal from the court of the parish and city of New-Orleans.
    Declarations of the father are good evidence of the age of the child if made before the cause of action arise.
   Mathews, J.

delivered the opinion of the court. This suit was brought on two promissory notes, executed by the defendant in favor of the plaintiff. The former pleaded infancy, and consequent incapacity to contract any binding obligation; he obtained judgment, from which the latter appealed.

The notes given in evidence by the appellant, are dated, one in September, and the other in November, 1819. In support of his plea of infancy the appellee offered a passport signed by his father, (wherein he states himself consul of his Majesty the king of the Netherlands,) dated in 1817. In this instrument the son is stated at that time to have been 17 years old, and its genuineness is ascertained by proof. Oral evidence was also tendered, to prove his youthful appearance and boyish conduct, during his voyage to New-Orleans, and subsequent to that period; and likewise that the fact of his minority, at the time of making the promissory notes on which this action is founded, was known to the plaintiff. To the introduction of all this testimony, a bill of exceptions was filed, as being contrary to the general rule of evidence, which requires the best that the nature of a cause admits. The passport signed by the father is also opposed on the ground of his incompetency to testify, as established by our code.

It is true that according to our law, ascendants and descendants cannot be witnesses for or against each other. Civil Code, p. 312, art. 248.

The most obvious reasons, on which this rule is founded, are danger of perjury on account of improper bias; and the inhumanity of arraigning as witnesses, parents against their children, or children against their parents. But in the present case, it is not attempted directly to introduce the father as a witness. Evidence is offered, only to show what he has declared and written, in relation to a fact, completely within his knowlege; and which was uttered at a time, when he stood without temptation to evade or fall short of the truth. In pursuance of this doctrine, (contrary to the general rule that hearsay is not evidence,) memoranda made in bibles, or any other family registers; and even public reputation, are received as good proof of births and pedigrees. See Phil. Ev.Am. ed. of 1816, p. 473.

It is true that the law of the country, under which these exceptions to the general rule are tolerated, does not render ascendants and descendants incompetent to testify for or against each other. But the reasons on which they are founded, viz. necessity or the frequent impossibility of procuring better evidence; and great probability of the truth of facts thus recorded or declared, arising from the unbiassed state of mind in which they are uttered, appears to us to be equally forcible under our own law. Parochial registers, in countries where by law they are required to be kept, are perhaps the most authentic and best evidence of births and pedigrees; but it does not appear that such is the law or custom of the kingdom in which the defendant was born; and even if it did, it is clear that the testimony on which registries of that kind are commonly made, is the declaration of the father or mother, and receives credit on the ground that they were best acquainted with the fact, and declared it free from improper bias, or temptation to falsify. In the absence of this higher species of evidence, courts of justice are in the habit of resorting to hearsay and public reputation, in relation to such matters; and we are of opinion that the parish court did not err in receiving the testimony offered in the present case on the part of the defendant. Being received, it supports his plea of minority, and consequent incapacity to contract in the manner alleged by the plaintiff.

Seghers for the plaintiff, Davezac for the defendant.

It is therefore ordered, adjudged and decreed, that the judgment of the court below, be affirmed with costs.  