Spring Garden Mutual Insurance v. Evans ex rel. Riley

Le Grand, C. J., delivered the opinion of this court. This case was before this court at .Tune term 1856, and the decision then given must control the one now to bo made, the record not having boon materially altered as to its facts. We regret this because, there is nothing appearing in the evidence from which we can infer there had been any concealment or fraud on the part of the insured or his assignee. But this case, like all others, is to be made out by legal evidence, and this, in our opinion, has not been done, At the former trial it was held by this court, that: there was no waiver of preliminary proof, and. that the refusal- of the defendant, after notice to do so, to produce the papers left at its office with its president, in.

Philadelphia, did not authorize any inference against the party refusing; that its only legal effect was, to allow the opposite party to prove their contents. 9 Md. Rep., 17 . We consider it unnecessary to pronounce upon each of the exceptions, because the recovery of the plaintiff depends on the affidavit of George W. Hammond, of the 18th day of August 1849, and the testimony of Hammond in regard to it. If the testimony was inadmissible, then, the third prayer of the defendant was improperly rejected. Much has been written and decided as to the use which may he made of memorandums in relation to the matter inquired of at the trial, and great difference of opinion expressed.

In the case of Martin vs. Good, 14 Md. Rep., 398 , decided at the June term 1859, this court adopted the rule, as it had been relaxed from its former strictness by some of the courts of this country. In that case a paper containing the terms of a settlement. ⁶² between partners, was placed in the hands of a witness to refresh his memory. The witness recognized the paper as in Ms handwriting, but did not remember where or when he wrote it, though he thought it was on the day of the settlement, and it must have been within a week thereafter. His. memory was not refreshed, by reading the paper, so as to enable him to recollect the amount