97 Ala. 154 | Ala. | 1892
—
Tyler on Infancy & Coverture § 145, supports this view in this language: “If a person pleads his infancy to avoid a contract executed by him, the proof of infancy lies on him, and the rule will not be departed from, even where the plaintiff replied a new promise, after twenty-one, for the reason, that the fact of infancy is supposed to rest more immediately within the infant’s knowledge, while it may be absolutely impossible, for the adverse party, to prove the contrary, though the contrary were true,” (citing in support thereof, Bigelow v. Grannis, 4 Hill. 206; Bay v. Gunn, 1 Denio. 108;
The charge of the court, complained of, was in accordance with the foregoing principles, and is free from error.
II. The plaintiff introduced two witnesses who testified against the objection of the defendant, the one, that he was the brother, and the other, that he was the husband of the sister of the plaintiff, and, each, that he knew the reputation in plaintiff’s family as to his age, and that reputation was, that he was under twenty-one years; and the defendant moved to exclude from the jury the testimony of these witnesses, on the ground, that it was illegal and hearsay, and the court granted the motion, and excluded the evidence. We hold, there was no error in this ruling, because, as we long ago held, approved by a later rendering: “Hearsay evidence is never admissible, in such cases (pedigree and age) except to prove the declaration of deceased persons. The reputation of relationship, if it existed, in the family, must have arisen from the knowledge of the fact, in some of the members, and their subsequent declaration to others, or from the acts and conduct of the person, (whose pedigree or age is the subject of inquiry), or of the members of the family toward him, and in either case, the individuals making the declaration, or witnessing the acts and conduct, would furnish better evidence.” — White v. Strother, 11 Ala. 724; Cherry v. State, 68 Ala. 30. In this latter case, was said, “The better opinion seems to be, that the declaration of third persons can not be admitted to prove pedigree, (held to embrace particular facts of birth, marriage and death, and the times when these events may have happened), unless it is shown that they are deceased.” — 1 Gr. on Ev. § 104; 2 Gr. on Ev. § 103; 1 Phil, on Ev. p. 211; 2 Best on Ev. § 498; 1 Pick. 245.
There is no error in the record, and the judgment is affirmed.