Curtis v. Patton , 6 Serg. & Rawle 135 ( 1820 )

Tilghman C. J.

In this case, two of the defendants only, were taken and became parties to the suit. These two pleaded severally ; nevertheless, the jury found a verdict against William Patton, who never was a party, and judgment was entered against him. In this, undoubtedly, there was error.

Another error has been assigned, on the trial of the issue against Samuel Patton, who pleaded infancy. In support of this plea, he offered in evidence a book, (called the family bible of his deceased father,) in which was entered the age of Samuel Patton, in the hand writing of his brother John Patton, who swore, that by direction of his father, he copied this, and other entries respecting the ages of the family, from another book, in which the original entries were made in his father’s hand writing. To this evidence, the plaintiff objected, but the Court admitted it. No account was given of the book in which the original entries were made, so that the case falls within the general rule, that a copy is not evidence, because, from the nature of the case, it appears, that better evidence might be had. If it had been proved, that the original was lost, or destroyed, the copy would have been evidence—but without that proof, it ought not to have been admitted. It is the opinion of the Court, therefore, that the judgment should be reversed, and a venire facias de novo awarded.

Judgment reversed, and a venire facias de novo awarded.