Whitcher v. McLaughlin

Colt, J. Under the plea of infancy, the issue was whether the defendant was of age at the time of the promise declared on. To prove that he was not, the defendant was permitted to put in the entry of his baptism contemporaneously made by a Roman Catholic priest since deceased in a book which appeared to be a church record of baptisms, and which was produced from the proper custody. In Kennedy v. Doyle, 10 Allen, 161, this was held competent evidence for the purpose of proving the date of the baptism. It was treated as an entry made by a third person in the discharge of an official duty. The plaintiffs contend that it was not admissible to prove the time of the defendant’s birth. But assuming this to be so, the exception cannot be maintained, unless it affirmatively appears that the evidence was improperly used for that purpose. The date of the baptism, with the aid of other evidence tending to fix the defendant’s age at that time, would become material, and the entry was competent to prove that date. We must presume that such evidence was in the case. The bill of exceptions indeed shows that the entry was offered in evidence “ among other things.” If the entry was admissible for any purpose, the plaintiff has no ground of exception, unless the judge refused at the trial to limit its effect and permitted it to be used for a purpose for which it -was not competent. In the absence of anything [170] showing the contrary, it must he presumed that the proper limitation was given. A general objection to its admissibility will not be sustained; and where evidence is admitted which is competent when connected with other evidence, it is held to be no ground of exception unless it appears from the bill of exceptions that such other evidence was not introduced. Liverpool Wharf v. Prescott, 4 Allen, 22. Burghardt v. Van Deusen, 4 Allen, 374, 377. Merritt v. Morse, 108 Mass. 270. Earle v. Earle, 11 Allen, 1. The preliminary facts which must have been shown to make the record entry evidence at all, such as that the book was regularly kept by the proper official, was in his handwriting, and came from the proper custody, it was the province of the judge who presided at the trial to pass upon ; and his decision is conclusive, unless he saves the question on report, or it is brought up on exceptions which state the evidence upon which his finding is made. Gorton v. Hadsell, 9 Cush. 508. There is no attempt to revise his findings in this respect. And it does not appear that the record was erroneously admitted. As to the second exception, the court must have found as fact that the original family record was lost; secondary evidence of its contents was therefore admissible. The copy produced with evidence of its accuracy was competent secondary evidence. Holmes v. Mar den, 12 Pick. 169. Pxceptions overruled.