Tandy v. Masterson's administrator

4 Ky. 330, 1 Bibb 330, 1809 Ky. LEXIS 48

• Court: Court of Appeals of Kentucky
• Decided: May 15, 1809
• Status: Published

Opinion

OPINION of the Court, by

Judge Boyle.

— The errors assigned in this case question the correctness of the opinion of the circuit court in refusing to set aside the verdict and grant a new trial.

The issue was joined upon a piea of infancy, and the verdict and judgment were for the plaintiffs in the court below. On the trial, it appears from the record, there was but one witness sworn ; who deposed positively that the defendant in the suit was born the 21st day of September, 1777, and was not twenty-one until the 21st day of September ensuing the date of the obligation upon which the action was founded.

The character ot the witness not being impeached, nor his testimony contradicted or discredited by any circumstance in the cause, the verdict appears to have been clearly against evidence, and ought to have been set aside, and a new trial granted.

The non production of the register, which the witness swore he kept of the defendant’s age, inasmuch as it was a mere private memorandum, and could not have been used as legitimate evidence if it had been produced, ought not to have weakened the force, or destroyed the competency of the testimony of the witness.

Nor was the circumstance of the defendant having worked apart from his father, and contracting for himself for a year before the date of his contract with the plaintiffs in the court below, a consideration which ought to have had weight or influence in deciding the cause : it could have made him neither older nor younger, and the onlv question to be tried by the jury was the minority or manhood of the defendant.

Judgment reversed.