92 Mass. 161 | Mass. | 1865
1. This action was brought against two sisters upon an agreement of both to pay money borrowed by them on their joint account from the plaintiff. One of them suggested her insolvency, and set up no other defence. The other pleaded infancy at the time of the agreement. It was within the discretion of the presiding judge to order the trial to proceed against her alone.
2. The agreement, if made when she was under age, stood, as against her, on the same ground as any other contract by an infant for anything but necessaries. It was voidable and not void, and, if affirmed by her after coming of age, was binding upon her.
3. The remaining exception presents an interesting and im portant question of evidence. The parties being at issue upon the point whether the defendant was of age when she made the agreement, the plaintiff, to prove that she was, offered a book, which was admitted to be the church record of baptisms in a Roman Catholic church in Lowell, regularly kept by McDermott, the priest of that churen for a series of years, produced from the custody of O’Brien, the present priest, into whose hands it came
In England, a church record of baptisms, kept by a clergyman of the established church, is admissible, even before his death, accompanied by evidence of the identity of the child, to prove the date of its baptism ; but not the time of its birth, because the clergyman has no authority to make inquiry about the time of birth or any entry concerning it in the register. Draycott v. Talbot, 3 Bro. P. C. (2d ed.) 564. May v. May, 2 Stra. 1073. Wihen v. Law, 3 Stark. R. 63, and other cases cited in Stark. Ev (4th Eng. ed.) 299, note f. Doe v. Barnes, 1 M. & Rob. 389. In the Church of England, from the time of the Reformation, registers of baptisms, weddings and burials were kept by order of the crown as head of that church; and, in the words applied by Lord Chief Baron Gilbert to the original order of Henry VIII. on this subject, “ when a book was appointed by public authority, it must be a public evidence.” Gilb. Ev. (3d ed.) 77. Lord Coke, in Noy, 146. Hubback on Succession, 470-474. The ordinances of the English Commonwealth in 1644 and 1653 provided for the registration of births, deaths and marriages. Scooell’s Ordinances, 76, 236. Dudly's case, 2 Sid. 71. But these ordinances were annulled upon the restoration of Charles II And registers kept under ecclesiastical authority continued to be admitted in evidence by the courts, although not require,.
It is perfectly true that in this commonwealth the law makes
It becomes necessary, therefore, to determine whether his death has made his register competent evidence. Upon this question there seems to be some conflict of opinion in England.
The cases in which the registers of clandestine marriages in the neighborhood of the Fleet Prison in London have been rejected, even after the death of all the witnesses to the marriage, may be laid out of consideration; for those registers were not only kept without authority, but the marriage ceremonies there recorded were performed in direct violation of law, and the books showed upon their face that they were unworthy of credit. Read v. Passer, 1 Esp. R. 213; S. C. Peake R. 231. Lloyd v. Passingham, Coop. 155. Nokes v. Milward, 2 Addams, 391. Doe v. Gatacre, 8 C. & P. 578, and note.
The leading cases upon this subject are those in which Lord Holt held that entries, made in a tradesman’s books by his servant or drayman in the usual course of his employment, wrere admissible in evidence after the death of the latter, upon proof of his handwriting. Pitman v. Maddox, 2 Salk. 690; S. C. 1 Ld. Raym. 732; Holt, 298. Price v. Torrington, 1 Salk. 285; S. C. 2 Ld. Raym. 873; Holt, 300. It was long since settled beyond controversy in England that an entry of the receipt of tithes in the books of a deceased rector was evidence .for his successor; and the reason for this, assigned by Lord Hardwicke and Lord Ellenborough, was the absence of all interest to misstate, inasmuch as the entries could not be evidence for him during his life,- and his representative would have nothing to do with the living after his death. Glynn v. Bank of England, 2 Ves. Sen. 43. Roe v. Rawlings, 7 East, 290,291, So courts of law ha re admitted the
In Higham v. Ridgway, 10 East, 109, entries of charges in the books of a deceased man midwife, marked therein as paid six months afterwards, were admitted as evidence of the time of the birth of the child. It is true that one reason assigned by the court was that they were against his interest, yet, as was said by Mr. Justice Story, “ this seems very artificial reasoning,” especially in view of the fact that the payment was made six months after the charge. Nicholls v. Webb, 8 Wheat. 335. And the supreme judicial court of Maine, in a well considered case, admitted charges in the books of a deceased physician in the regular course of his business, without evidence of payment or any other circumstance bearing against his interest. Augusta v. Windsor, 19 Maine, 317.
Lord Chancellor Plunket repeatedly admitted the books of a Roman Catholic chapel in Dublin, made by Roman Catholic priests whose deaths and handwriting were proved, as evidence of marriages and baptisms, and on the last occasion, after argument, gave this reason for their admission: “ They are the entries of deceased persons, made in the exercise of their vocation contemporaneously with the events themselves, and without any interest or intention to mislead.” O’ Connor v. Malone, 6 Clark & Fin. 576, 577. Malone v. L'Estrange, 2 Irish Eq. R. 16
In the case of Davis v. Lloyd, 1 Car. & Kirw. 275, to show the infancy of one party, the other offered in evidence the book of a Jewish synagogue in the handwriting of the chief rabbi, who had since died, containing an entry of the circumcision of the party by him; and offered to show that by the Jewish law the custom was fqr a child to be circumcised on the eighth day after his birth, and it was the duty of the chief rabbi to perform the rite and make the entry. Lord Denman, after consulting Mr. Justice Patteson, would not admit the evidence. No reasons are reported, and as the party who offered the evidence prevailed, the case was not brought before the court in bank. The facts were very similar to those now before us, with one important difference. Here, the record was offered in order to prove full age, and was admitted only to show that the child was in being when the record was made. There, the evidence was offered to prove infancy, by the aid of presuming the child to have been only eight days old at the time of the entry; and that depended on the performance of duty by his parents, of which there was no evidence. The entry may have been rejected on that ground, just as legal records of baptisms, as above stated, are not evidence of the time of birth. If the ruling was made upon broader grounds, we do not see how it can be reconciled with the weight of English authority as shown by the cases already cited. See also 1 Stark. Ev. (4th Amer. ed.) 319-322; 1 Phil. Ev. (4th Amer. ed.) 356 ; 1 Taylor on Ev. (3d ed.) § 633.
In the United States, the law is well settled that an entry made by a person in the ordinary course of his business or
In the case before us, the book was kept by the deceased priest in the usual course of his office, and was produced from the custody of his successor; the entry is in his own handwriting, and appears, to have been made contemporaneously with the performance of the rite, long before any controversy had arisen, with no inducement to misstate, and no interest except to perform his official duty. The addition of a memorandum that he had been paid a fee for the ceremony could not have added anything to the competency, the credibility, or the weight, of the record as evidence of the fact. An entry made in the performance of a religious duty is certainly of no less value than one made by a clerk, messenger or notary, an attorney or solicitor or a physician, in the course of his secular occupation.
Exceptions overruled,