41 S.C. 149 | S.C. | 1894
The opinion of the court was delivered by
This was an action on an account against the defendant, tried before his honor, Judge Norton, and a jury, July 24,1893. The complaint alleged an indebtedness of $364.76, due to plaintiff as assignee of Joseph H. Coates & Co. The account itemized is in the record. The answer was a general denial.
It appeared that Joseph H. Coates & Co. were in the cotton business in the city of Savannah, at the time the account was contracted; that they failed, and made an assignment for the benefit of their creditors to the plaintiff, Horace H. Fritz, which assignment included the claim on account now in question, and he brought this action to recover it. In the course of the trial the plaintiff opened a commission which had been issued to examine, among other witnesses, R. W. Gamble, who represented Joseph H. Coates & Co., doing the business in their name under power of attorney. When the reading of the in
“The Court: The rule is, that a witness may refresh his memory from any memorandum that he made, or that he saw made, or knew to be correct; but unless it is a writing of that kind, I don’t think he can use it, aud I don’t think the testimony here comes up to the requirements. (Plaintiff excepts.)
“Mr. Jefferies: Will your honor allow such portions of that question to remain that goes to show the indebtedness?
“The Court: The testimony objected to was the statement of the witness that the defendant here was indebted to the assignees to a certain amount. The knowledge of that indebtedness arose, as the evidence of a witness was derived, from the books. The books were not produced in evidence, and it was not shown that the person who gave the information did not keep the books, but, ou the contrary, one Williams kept the books, and it is not shown that he had a knowledge of the entries when they were made, and that they were made, and upon that statement by Mr. Haynsworth, I ruled that he could not testify as to his sources of information.
“Mr. Jefferies: Does that shut me out from bringing out from him what he knows in his own mind, independent of the books?
“The Court: No, sir, I think not. It seems to me that it is about as responsive an answer as you can get, oven if you had the witness on the stand. The testimony in response to the cross-interrogatory may be admitted. The answer to the seventh interrogatory was not admitted, on the ground that the witness’ knowledge of the facts to which he testified was derived from the books,” &c.
The trial proceeded. The defendant waived proof of partnership of Joseph H. Coates & Co., and proof of the execution of the assignment, and admitted that B. W. Gamble was general agent of Joseph H. Coates & Co. The defendant offered evidence denying the truth of the testimony contained in the
As we understand it, the object of testimony is to ascertain the facts; aud the rule of primary importance upon that subject is, that a witness shall state only facts within his own knowledge, aud not “hearsay.” He may, however, be allowed, under certain circumstances, to refer to a written memorandum or book; not to make the paper referred to evidence in itself, but simply to refresh the memory of the witness, the testimony which he may be able to give, being still his own. It seems to us, therefore, that the rule as to refreshing the memory, must rest largely on the known correctness of the paper or books referred to; otherwise, the testimony would not be that of the witness, but of “the books” referred to, which may be unreliable, and mislead the witness. Hpou this point it seems that all the authorities agree. It is said in article 136 of the “Digest of the Law of Evidence,” by Mr. Justice Stephens, said to be the best extant, aud reproduced in 7 Am. & Eng. Enc. Law, page 111: “that 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 at the time fresh in his memory. The witness may also refer to any such writing made by any other person and read by the witness within the time aforesaid, if, when he read it, he knew it to be correct,” &c. See, also, the latter part of section 436, Greenleaf on Evidence: “But where the witness neither recollects the fact, nor remembers to have recognized the written statement as true, and the writing was not made by him, his testimony, so far as it is founded upon the written paper, is but hearsay; aud a'witness can no more be permitted to give evidence of his inference, from what a third party has written, than from what a third party has said,” &o.
The account as such was not offered in evideuce, the witness did not make the entries himself, nor see them made by the book-keeper, Williams, nor assured himself of their correctness, when they were fresh in his memory. It seems to us difficult
The judgment of this court is, that the judgment of the Circuit Court be affirmed.