Carskadden v. Poorman

[84] The opinion of the court was delivered by Rogers, J. The plaintiff assigns as error, the admission of the testimony, in the several bills of exception, and the charge of the court. As to the latter, it must be disregarded, as the general errors without a specification of the points relied on, give no information to the adverse party. This was an action to recover the penalty of 50 pounds from the defendant, the plaintiff in error, who was a justice of the peace, for marrying the son of the plaintiff, who was a minor, without the consent of the father. To prove that the son was a minor, which was essentially requisite, under the act, it was given in evidence by the testimony of Peter Poorman, the plaintiff, as follows:— “ This is my family Bible; that record, is the record of the birth of my children; the entries are in my own handwriting; the entry of my son Henry’s birth (the son alluded to) was made a day or two after the birth. It was truly made.” The entry is, “ Henry born the 14th January, ISIS.” The objections to the testimony are two: that the Bible is not evidence of the time of the birth, though duly proved, and that it cannot be proved by the oath of the party to the suit. The first exception was not taken at the trial, and has been but little pressed in the argument here. Evidence of pedigree, of birth, and of .death, is somewhat relaxed from necessity, and for these purposes, entries in the register of burials, and the entries of the births and deaths of the members of the family, in a Bible, are always given in evidence without objection. Indeed without reverting to some such sources of information, it would be, in many cases, impossible to prove the pedigree, or the time, either of the birth or death, of obscure individuals. Experience has shown, that it is less exceptionable, and more to be depended on, than the frail recollections or memory of strangers, of such facts as are alone interesting to the parents, or the immediate members of the family. But although there can be no doubt, that the entries when duly proved, are evidence, yet it is not so clear, that the party in interest, is a competent witness to authenticate the book, and prove the entries. No case has been cited, nor isany known, where the point has been directly decided. It may be laid down as a general rule, that when the evidence is not to the court, but to the jury, the party in interest is not a competent witness; but this though a general, is not a universal rule. In Garwood v. Dennis, 4 Binn. 326, it is said, “Necessity, either absolute or moral, is sufficient ground for dispensing with the usual rules of evidence.” Thus, in this country, from necessity, the party is competent to prove his book of original entries, and there would seem to be an equal necessity here. Without resorting to the testimony of the parents, it would be, in many cases, very difficult to authenticate the family record. It is believed, there is but [85] little danger which can arise from such proof, accompanied as it is by the book itself, which is open to the inspection of the jury. An attempt to fabricate an entry, to subserve a particular purpose, would be easily detected, and it is difficult to believe that there is any thing to fear from a false entry, made at a distant period of time, to answer a contingent purpose. When entered at the time it purports to bear date, it is liable to no objection, and there is no evidence on which a jury would place more implicit reliance. The defendant was permitted to give any evidence which tended to show the assent of the father to the marriage, or that he encouraged it; and for this, purpose, he was allowed to prove, that the son’s wife lived at the house of the father, previous to the marriage, that he knew he visited her, and that he, the son, thought a good deal of her. But they refused to admit evidence, that since the marriage, the father had put the son on a farm, and had expressed himself well satisfied and pleased with the match. In this the court have taken a sound and proper distinction. We cannot perceive, in what respect, such testimony conduces to prove, either an encouragement, or a previous assent to the marriage. It is a matter of no sort of consequence, so far as' any inquiry into the improper conduct of the justice is involved, whether the parent is well or ill pleased, or whether the match be^good or bad. The act was intended to prevent clandestine marriages, and for this purpose has imposed upon the justice a proper penalty, for marrying or joining in marriage, any person under twenty-one, without the assent of the parents. It is intended as a punishment of the offender, rather than a compensation to the parent, and to make this depend on -the fitness or unfitness of the match, would lead to indecent and worse than fruitless inquiries. Nor is a good reason perceived, why the act should be eluded, because the kind and tender feelings of the parent, induce him to receive into favour an erring child, and to supply him with the common necessaries or comforts of life. Such testimony, by the encouragement it would give to angry passions, would produce infinite mischief which the court, by their decision, have properly prevented. The defendant further offered to prove, that the son communicated his marriage to his fathershortly after it took place, and what he said about it. The offer was evidently too general. The defendant should have specified what was said, and if it tended to prove assent or encouragement, on the authority of the case of Rodelsough v. Sands, 2 Watts 9, it would have been evidence. But as it stands, it is but little more than the repetition of the offer of evidence, which in another shape had been properly rejected. The objection to the notice is too refined, nor can we see any thing in the charge of which the defendant has the slightest reason to complain. There is convincing evidence of every fact necessary to maintain the suit, viz.: — that the son was a minor, and that the [86] defendant, who was a justice of the peace, joined him in marriage without the consent of his parents. Judgment affirmed.