Martin v. Good

Tuck, J., delivered the opinion of this court. The objection to evidence made by the appellant is to be found in the middle of the statement of facts, it not appearing whether the point was raised on what precedes or on that which follows the objection. Although this was remarked upon at the trial, we think it can make no difference, because as the objection cannot be considered as applying to both portions of the statement, and, as the evidence, before and after-the objection is substantially the same, one or the other must be considered as having gone to the jury without objection. But, as the question is an important one, and was fully ar ⁴⁰⁹ g'ued, we shall not regard the manner of making the objection, but decide the point intended to be raised for review, and that is, whether the evidence of the witness as to the terms of the agreement between the parties was properly admitted, after he had said that he had no recollection of the paper, and that his memory was not so refreshed by reading it as to enable him to recollect the amount of accounts taken, or the particular dejifs assumed by each partner ? ' Whatever rules may have existed, as shown by the ear cases, requiring that the witness should be able to say, aftci reading a memorandum, that his memory was so far refreshed as to enable him to testify to the facts therein stated, independently of the memorandum, it is very certain that they are not now enforced with the same strictness as formerly, in this country and in England, the doctrine has been extended and applied to cases where justice would, otherwise, have failed, and, as we think, on grounds quite compatible with fundamental principles.^/For example, where it became necessary' to prove the receipt of money, and the witness said that from seeing the entry in his own book, made by himself, he had no doubt he had received the money, his testimony was allowed.

Maugham vs. Hubbard, 15 Eng. C. L. Rep., 147. 8 Barn. & Cress., 14. The same principle applies where persons are! called to prove the execution of deeds, and other writings to! which their names appear as witnesses, or to speak of dates,f amounts and other details which a man cannot carry in hi^ mind, but of which they have made memoranda. They may,' have no recollection of the facts, and yet, with the utmost safety, be willing to swear that they have no doubt of their occurrence, merely because their handwriting would not haveji appeared in connection with them if they had not taken place as therein stated.

We might refer to many authorities in support of this view, but content ourselves with naming 1 Smith’s Leading Cases, 139, Price vs. Earl of Torrington; 4 Ph. Ev. (Cowen & Hill, 726, note 377,) L Greenl. Ev., sec. 437; 16 Wend., 586 , where the cases may be found.

In The State vs. Rawls, 2 Nott & McCord, 331, it is shown that the doctrine in 1. Phillips’ Ev., 209, that a witness can ⁴¹⁰ not testify, after reading the memorandum, unless he can speak of the facts independently of the memorandum, is not sustained by the cases referred to by him; and several judges, whose attention appears to have been particularly called to the subject by the remarks of Mr. Justice Nott, have expressd their concurrence with him, and, indeed, the annotators upon that valuable treatise have signalized his opinion as a “bold and successful vindication of the English cases from the narrow construction of Phillips.” Cowen & Hill’s Phillips, Vol. 4, page 731, note 377. See Topham vs. M’ Gregor, 1 Carr & Kir., 320, in 47 Eng. C. L. Rep. 2 Adol. & Ellis, 210. 15 Wend., 193 , Clark vs. Vorce. 16 Wend., 586 , Merrill vs. Ithaca & Owego R. R. Co. Halsey vs. Sinsebaugh, 15 N. Y., (1 Smith,) 485.

Haven vs. Wendell, 11 N. Hamp., 112. Watson vs. Walker, 3 Foster, 471 . State vs. Colwell, 3 R. Island, 132. Bartlett vs. Hoyt,