The law recognizes the right of a witness to consult memoranda in aid of his recollection, under two conditions : Hirst, when, after examining a memorandum made by himself, or known and 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 knowm to the jury, unless opposing counsel call out the same on cross-examination. This he may do, for the purpose of testing its sufficiency to revive a faded or fading recollection, if for no other reason.
In the second class are embraced cases in which the witness, after examining the memorandum, can not 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 it 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. — 1 Greenl. Ev. §§ 436-7; Bondurant v. Bank, 7 Ala. 830.
The foregoing covers all the questions presented in the briefs, and all the questions that appear to be material. Under the pleadings, and the tendency of the testimony, it would seem that the plaintiff’s reliance for a recovery is on an account stated, and on a promise, or partial payment, or an acknowledgment, to intercept the running of the statute of limitations. The testimony bearing on these questions places them after the close of the war, and hence no question of alien enemy, or opposing flags, can arise. If Hickman and Acklen belonged to opposing, belligerent nationalities, or organized forces, at the time the latter had the use and benefit of the labor and merchandise which are the consideration of the alleged promise to pay, hostilities had ceased, and peace had been re-established, long before the alleged accounting took place, or the asserted partial payment and promise to pay are claimed to have been made. If plaintiff has failed to establish his right to recover, by what took place after the close of the war, his claim is barred by the statute of limitations. This renders it unnecessary to inquire whether the account, when contracted, was between alien enemies. The accounting or payment afterwards, if made, healed that infirmity.
Beversed and remanded.