175; Costello v. Crowell, 133 Mass. 352; Walker v. Curtis, 116 Mass. 98; Callaway v. McMillian, 11 Heisk. 557; Bland v. Warren, 65 N. C. 372; Clemens v. Patton, 9 Port. (Ala.) 289; Field v. Boynton, 33 Ga. 239; Craft's App. 42 Conn. 146.

While this general statement of the doctrine is universally accepted, there are some points of difference in its practical application. These differences will be found, upon careful examination, to arise, not from any doubt as to the general principle itself, but from a certain want of uniformity in the local law of the various states in respect to the nature of the quantum of preliminary proof.

65. Views of the United States Supreme Court.-The high consideration which attaches to any decision of the United States Supreme Court naturally invests its utterances with great interest and imposes a certain degree of respect upon the most assertive and unconventional tribunal. In a very recent case the topic now under treatment received the attention of that court, and a decision was reached that will doubtless go far to quiet the controversy upon this subject. The court, Mr. Justice Gray writing the opinion, holds that a memorandum in writing, of a transaction which occurred twenty months before its date, and which the person who made the memorandum testifies that he had no recollection of, but knows it took place because the memorandum so states, and because his habit was never to sign a statement unless it was true, cannot be read in aid of his testimony. Parsons v. Wilkinson, 113 U. S. 656, 28 L. ed. 1037.

Memoranda are not competent evidence by reason of having been made in the regular course of business, unless contempora neous with the transaction to which they relate. Nicholls v. Webb, 21 U. S. 8 Wheat. 326-337, 5 L. ed. 628-630; Ætna Ins. Co. v. Weide, 76 U. S. 9 Wall. 677, 19 L. ed. 810; Republic Fire Ins. Co. v. Weide, 81 U. S. 14 Wall. 375, 20 L. ed. 894; Chaffee v. United States, 85 U. S. 18 Wall. 516, 21 L. ed. 908.

66. Views of the Alabama Supreme Court.-The present status of this entire subject has the benefit of a discriminating and logical review from Mr. Justice Stone of the Alabama supreme court. As it would be difficult to frame in language a more elucidative statement, we append the decision in full.

"The law recognizes the right of a witness to consult memoranda in aid of his recollection, under two conditions: First, when after examining a memorandum made by himself, or known

or recognized by him as stating the facts truly, his memory is thereby so refreshed that he can testify, as matter of independent recollection, to facts pertinent to the issue. In cases of this class, the witness testifies to what he asserts are facts within his own knowledge; and the only distinguishing difference between testimony thus given, and ordinary evidence of facts, is that the witness by invoking the assistance of the memorandum, admits that without such assistance his recollection of the transaction he testifies to had become more or less obscured. In cases falling within this class, the memorandum is not thereby made evidence in the cause, and its contents are not made known to the jury, unless opposing counsel call out same on cross-examination. This he may do for the purpose of testing its sufficiency to revive a fading or faded recollection, if for no other reason.

"In the second class are embraced cases in which the witness cannot testify to an existing knowledge of the fact, independent of the memorandum; in other words, cases in which the memorandum fails to refresh and revive the recollection, and thus constitute its present knowledge. If the evidence of knowledge proceed no further than this, neither the memorandum nor the testimony of the witness can go before the jury. If, however the witness go further, and testify that at or about the time the memorandum was made, he knew its contents, and knew them to be true, this legalizes and lets in both the testimony of the witness and the memorandum. The two are the equivalent of a present positive statement of the witness affirming the truth of the contents of the memorandum." Acklen v. Hickman, 60 Ala. 568.

In order to refresh the recollection of the witness it is not important that the paper, book or memorandum should have been written or printed by himself, or that it should be an original writing. It is sufficient that he saw it while the facts stated therein were fresh in his memory, and he knows that they are correctly transcribed or printed. Upon inspecting it, he can state the facts, if thereby called to his recollection. Chapin v. Lapham, 20 Pick. 467. See Coffin v. Vincent, 12 Cush. 98; Kensington v. Inglis, 8 East, 273; Rex v. Dutchess of Kingston, 29 How. St. Tr. 619; Burton v. Plummer, 2 Ad. & El. 341; Huff v. Bennett, 6 N. Y. 337. In Horne v. M'Kenzie, 6 Clark & F. 728, a surveyor was called to refresh his memory by an extract

from his field notes, embodied in a printed note made by him, and verified by him as correct.

67. Statement of the English Rule.-"A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction, concerning which he is questioned, or so soon afterwards that the judge considers it likely that the transaction was then fresh in his memory.

"The witness may also refer to any such writing made by any person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct.

"An expert may refresh his memory by reference to profes sional treatises." Stephen, Dig. art. 136.

§ 68. A Distinction Noted.-A distinction which it is of the utmost importance to observe is this: In all instances where the witness has a clear and accurate recollection of the fact it is sought to show by the written memoranda-has a vivid recollection of all facts independent of the memoranda-the latter must be excluded from all consideration. It is not admissible as a medium of evidence, and must not be introduced. Corning v. Ashley, 4 Denio, 354; Peck v. Von Keller, 76 N. Y. 604; Dunn v. James, 62 How. Pr. 307.

The importance of emphasizing this distinction is illustrated in a recent case in the general term of the fourth department of the New York supreme court. The action was for goods sold and delivered, the answer alleged payment; on the trial the defendant stated: "I remember distinctly paying this money, I was perfectly sure I had paid it without looking at my memorandum." Just here was developed the difficulty that led to the reversal of the case, and where the subtlety of the distinction sought to be emphasized is best illustrated. The defendant swears to a distinct recollection of paying, independent of the written memorandum which he produced and read from, under the objection of counsel. The objection was to the incompetency of the written memorandum, it appearing that the witness could distinctly recall the fact without it-that his recollection of the transaction which resulted in the payment of the claim was vivid and abiding, and that he was in no wise dependent for the least assistance upon the writing. Collins v. Rockwood, 64 How. Pr. 57.

In Marcly v. Shults, 29 N. Y. 346, the same rule was approved,

and it was held that a memorandum was incompetent because, in the language of Judge Mullin, "it was not intimated by the witness that he did not remember the fact without reference to the memorandum." And at page 335 of the same case, Judge Denio reaffirms the same rule.

The absence of harmony in the various state decisions as to the legal status of the writing itself admonishes us to indicate a further distinction which should constantly be borne in mind. This distinction relates to the varying degrees of credence given to the original memorandum, and a copy of it. Those jurisdictions which still adhere to the exclusionary principles of the early common law decisions are inclined to a very discourteous reception of a principle which has found great favor in other states. To introduce into one cause a copy of a paper the truth of the copy must be first established and a proper foundation laid for its introduction, (Smith v. Carrington, 8 U. S. 4 Cranch, 65, 2 L. ed. 551; Catlin v. Underhill, 4 McLean, 199) but after such foundation is laid, the memorandum itself may be introduced and it is abundantly established by authority that such evidence is competent. Pembroke v. Allenstown, 41 N. H. 365; Guy v. Mead, 22 N. Y. 462; Halsey v. Sinsebaugh, 15 N. Y. 485; Etna Ins. Co. v. Weide, 76 U. S. 9 Wall. 677, 19 L. ed. 810. See also Moots v. State, 21 Ohio St. 653.

§ 69. Restrictions on the General Rule.-There is some conflict in the authorities regarding the rules as to the admission of memoranda as evidence, and we find an unfortunate disposition in some jurisdictions among jurists of acknowledged eminence to uphold the principle engrafted upon the Scottish law, and approved by Lord Tenterden, to exclude from consideration all memoranda not in the handwriting of the witness. This refinement must be clearly apprehended. The doctrine was asserted and declared in the early years of the common law, and has been a pet theory with the Scottish jurists, who have continued to assert it with unbroken force from the earliest time.

"The law is a practical science and repudiates subtle refinements and speculative inquiry. It will not sacrifice substantial rights to impracticable processes, but will reject them to make way for practical justice. Recondite discussion of efficient cause,' 'plurality of causes,' and cognate topic are for the metaphysician and the speculative philosopher, not for the practical

lawyer or judge. There are doubtless instances where the reasoning which supports the rule excluding the memoranda of a stranger from evidence operates in a beneficial way, but those instances merely illustrate the force of that glib phrase 'hard cases make bad law." Tait, Ev. § 133.

A legal maxim originating in the dark ages has been the prolific source of this contrariety of view, and is directly responsible for the sluggish attitude of some courts upon this subject of memoranda.

Where memoranda of disputed items covering ten years, made by a decedent on a loose slip of paper, found in his desk after death, without proof that they were original items, or when made, or that it was his custom to make charges in this manner, are not admissible as evidence of an indebtedness to the decedent. Bar ber v. Bennett, 58 Vt. 476, 56 Am. Rep. 565.

While the peculiar situation disclosed by previous evidence had given this case an exceptional status in the law of evidence, still we can detect the presence of a restrictive tendency on the part of the court, in the matter of memoranda as evidence. The court says: "There was error in admitting the exhibit as evidence, and the error cannot be regarded as a harmless one. The jury might and probably did consider the account, as it appeared on that exhibit, of the same value, as evidence, as they would any other account that Elijah Barber might have kept against the defendant; and their verdict, under the charge of the court, may have been predicated upon that evidence." Lapham v. Kelly, 35 Vt. 195; Cross v. Bartholomew, 42 Vt. 206; Godding v. Orcutt, 44 Vt. 54; Barber v. Bennett, 58 Vt. 476, 56 Am. Rep. 565.

§ 70. Recent Cases Examined.-It would contravene the most obvious principles of justice, were a party allowed to produce memorandum evidence without submitting it to the inspection of the opposite party. The law guards with exceptional caution every avenue that leads to forgery or imposition. Merrill v. Ithica & O. R. Co. 16 Wend. 600, 30 Am. Dec. 130. A correlative right follows as of course to cross-examine with reference to the memoranda.

The practitioner is referred for further elucidation upon this subject of inspection to a Vermont case, where the matter was a subject of a carefully prepared opinion which has been cited repeatedly with every symptom of approval. See State v. Bacon, 41 Vt. 526, 98 Am. Dec. 616.