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While most of the authorities are uniform if he testifies that he once knew them and on the general rule of practice, there is, how made a memorandum of them at the time or ever, considerable discord on some of the soon after they transpired, which he intended points which frequently arise. Much of this to make correct, and which he believed to be conflict arises from a failure, in many instan correct, such memorandum may be used to ces, to properly restrict the use of the mem refresh his memory, although he has no presorandum, resulting from a misapprehension ent recollection of them.6 of the true principles governing the practice. Hence, under this rule, where check-slips It must be remembered that the paper has a
are made by a clerk in the ordinary course of distinct office. It is of itself but mere hear business, showing the number of cars shipped say evidence and used solely for the purpose and the descriptive mark of the goods, of aiding the memory, and it can in no proper they are admissible with the testimony of the sense supplant the witnesses testimony. It clerk that they were truly made by him, and must be strictly confined to this purpose. that the goods were marked and shipped as
2. Conflict as to whether Memory of Fact thereby indicated, although the witness has Should be Independent of Memoranda. no present recollection of the transaction." There are two conflicting views presented by And where the point is to prove protest and the decisions with respect to this practice. notice, a notary may refer to an entry in his Even in the decisions of the same State this book where it was his habit to make such endiscord is apparent. An attempt will be here tries at the happening of the event, although made to fully state these conflicting positions, he has no independent recollection of the fact to harmonize as much as possible, and finally, in question, his belief being based altogether to point out, as near as may be, the true
upon such entry.8 Likewise of a notary's principles which underlie the practice. clerk who had forgotten his entry of notice to
One class of cases holds that it is sufficient an endorser. toauthorize a use of the memordum, if after The same rule has been held to apply to a looking at it, the witness testifies to its gen memorandum of a gambling transaction ;10 so uineness and accuracy, either from having to notes of evidence of counsel;"1 so to the made it himself, when the facts to which it
entry of a bank clerk ;12 so to the entries of relates were fresh in his memory, or from charges for penalties of a town clerk. 13 having verified it immediately, or very soon And it has also been held that under like after it was made. In other words, in such case, the witness will be permitted to swear 6 Howard v. McDonough, 77 N. Y. 592; Costello v. to the fact, yet not because he remembers it,
Crowell, 133 Mass. 352, 355; Abbott's Trial Ev., p. 322,
par. 38; Wernag v. C. & A. R. R. Co., (Kansas City but because of his confidence in the correct
Court of App.) 22 Cent. L. J. XXXV. Mo. Add., 20 Mo. ness of the memorandum. While the other Арр. . class is to the effect that the witness must
7 Shiedley v. State, 23 Ohio St. 130.
8 Bank of Tennessee v. Cowan, 7 Humph. (Tenn.) have a present recollection, wholly indepen
70. “To require that a notary shall particularly recol. dent of the memorandum, of the transaction lect every specific case when he protests commercial mentioned in it, although the inspection of
paper and directs notice to the parties entitled thereto
would be to defeat recovery to a great extent upon the paper may alone awaken this recollection. such instruments, for in the very nature of the thing 3. Independent Recollection Unnecessary. - it is impossible for a notary to retain such recollection
when the amount of business done by him is exten(a) Rule Stated and Illustrated.--As con
sive. It is sufficient in such cases, if the statement be sistent with the first view, that an indepen contained in his notary book, and it was his habit to dent recollection of the fact is unnecessary,
make such entries at the happening of the event in
such case; his belief based upon such entry is good the rule has been frequently laid down that
evidence and should be received." See Bullard v. Wilwhere a witness has so far forgotten the facts son, 5 Mart. (La.) (N. S.) 196; Mangbam v.Hubbard,8
B. and C. 16. of the transaction that he cannot recall them,
9 Haige v. Newton, 1 Rep. Const. Court, 423. even after looking at the memorandum; yet, 10 State v. Rawls, 2 Natt. & McCord (S. C.) 334; ap
proved in Halsey v. Sinsbaugh, 15 N. Y. 485, 487. Lindsey, 1 East. 227; Kensington v. Inglis, 8 East. 273; 11 Rogers v. Burton, Pick. 108, 118; Clark v. Vorce, Horne v. McKenzie, 6 Cl. and Fin. 628; Burton v. 15 Wend. 193. Plummer, 2 A and E. 341; Rex v. Duchess of Kings 12 Bank v. Borael, 1 Rawle, 152. ton, 20 How. St. Tr. 619.
13 Corp. of Columbia v. Harrison,2 Rep. Const.Court, 5 Henry v. Lee, 2 Chitty, 124.
circumstances a witness may refresh his made by the witness himself, 25 or where it is memory from corporation books, or from made by another, that it be verified by the lists made by another which were signed and witness soon after it is made, and that he sworn to by the witness. 15
knows from his own personal knowledge of Dr. Wharton says that this is the prevail
the transaction that the facts therein recorded ing rule: "The fact that the witness has no
are correct: at least it is believed that no independent recollection of the notes, does
case has extended it farther. 26 not exclude the testimony, as to the facts (c.) Greenleaf's Rule. - Mr. Greenleaf stated in the notes, when he states that it was states a rule which is not only in harmony his uniform and unvarying practice to make
with the view under consideration, but which notes of the events of the character noted im- seems to go farther. He says: “Where the mediately after the occurrence of the events,
writing in question neither is recognized by and the memoranda are part of the notes in
the witness, as one which he remembers to question. + * In such case it is, of course,
have before seen, nor awakens his memory to necessary that the notes relied on should be the recollection of anything contained in it; produced in court.
but, nevertheless, knowing the writing to be (b.). Limitations on Rule.-This rule is genuine, his mind is so convinced, that he is strictly confined to cases where the “uniform on that ground enabled to swear positively to and unvarying practice” is to note the fact
the fact.” 27
This rule has not escaped seimmediately after the event.17
vere criticism. It was strongly condemned The memorandum must have been pres
by Chief Justice Whiteman, of Maine, in ently committed to writing” by the witness, 18 Bradley v. Davis.28 All the cases cited by "while the occurrences mentioned in it were
Mr. Greenleaf in support of it, were where fresh in his recollection,” 19 "written contem
the witness could recognize the genuineness poraneously with the transaction, or "near
of his own handwriting, although he was not ly so with the fact deposed to.” The fact
able to recall ever having written it, or the that the memoranda are made in the regu
purpose for which it was written. If this lar course of business is not alone sufficient,
rule is meant to be confined to proving signaunless contemporaneous with the transaction
tures in the attestation of instruments it is to which it relates.2 Some cases restrict the
correct, but if applied to cases where the rule to entries made in the regular course of
purpose is to refresh the memory of a witness business, 22 but others hold that it is applica
as to facts contained in a written document,
it cannot stand as sound law. ble to every species of memoranda. 23
4. Independent Recollection Necessary.The rule also requires the memorandum to be an original entry and not a copy;
24 that it be
"original entries, attested by a man who makes them,
may be read to the jury, though he remembers nothing 14 Mattocks v. Lyman, 16 Vt. 113.
of the facts they record,” Halsey v. Sinsebaugh, 15 N. 15 Davis v. Field, 56 Vt. 426.
Y. 487, approves this distinction also the case of State 16 1 Whart. on Ev. $ 518 and Cases in N. 1.
v. Rawls, supra, and holds that Lawrence v. Barker, 5 17 1 Whart. on Ev. $ 518.
Wend. 301; Feeter v. Heath, 11 Wend. 486; Calvert v.
Fitzgerald, 1 Litt. Sell. Cas. 388, and Jumta Bank v. 18 Lord Holt in Lindwell v. Sandwell, Comb. 445; S.
Brown, 5 Searg. and R. 235, which announce a contrary C. Holt. 295.
rule, are bad law and quotes and follows the rule laid 19 Lord Ellenborough in Barrough v. Martin, 2 Camp. down in Cowen and Hill's note to Phillips on Ev. (note 112.
528 to p. 290) “that an original memorandum made by 20 Ch. Justice Tinsdall in Stemkeller v. Newton, 9
the witness, presently after the facts noted in it transCar. & P. 313.
pired and proved by the same witness at the trial, may 21 Chaffee v. U. S. 18 Wall. 516; Ins. Co. v. Weide, 9
be read by him, and is evidence to the jury of the facts. Wall. 677; S. C. 14 Wall. 375; Nicholls v. Webb, 8
contained in the memorandum, although the witness, Wheat. 326, 337.
may have totally forgotten such facts at the time of the
trial.” Guy v. Mead, 22 N. Y.465 approves these cases.. 22 Bank v. Culver, 2 Hill, 531; Merrill v. Ithaca etc.
See also, Davis v. Field, 56 Vt. 429; Jones v. Stroud, 1 R. R. Co. 16 Wend. (N. Y.) 586, 599; Davis v. Field, 76
E. C. L. R. 96; 2 Car. and P. 196: Fisher v. Kyle Vt. 429.
Mich. 455. 23 Guy v. Mead, 22 N. Y. 465. See Russell v. Hudson
25 See cases in last last note. R. R. Co. 17 N, Y. 134. 24 Cowen J, in Merrill v. The Ithaca Oswego R. R.
26 1 Green. on Ev. $ 437. Co. 16 Wend. 586, 599, after a full examination of the
27 1 Green, on Ev. $ 437. English and American authorities gives the result that 28 26 Maine, 55.
The doctrine just stated and Illustrated is not looking at the paper, the witness cannot supported by all cases. The rule that the speak from his recollection merely, his testievidence must be given of the fact wholly in- mony, so far as he cannot speak from recoldependent of the memorandum, as above in- laction, is inadmissible.” 35
"If the paper dicated, has been adopted by numerous deci- fails to revive and refresh his recollection, sions. Thus, it is said, in support of this and thus constitute its present knowledge, he principle, that if the witness has no recollec- cannot testify.": 36 tion of the transaction, separate and distinct, In one case a witness, to identify and disof the memorandum, or if, upon inspecting distinguish certain articles in a ship yardthe paper
memory is not awakened to the which articles had been attached-selected fact, he will not be permitted to use it, al- them himself, but they were marked on the though he may have perfect faith in its cor- schedule by another person: at the trial he rectness. In other words, it is contended could not, after reading the schedule, disthat the paper must be used for the sole and tinctly recollect from memory that the artidistinct purpose of refreshing the memory, cles were in the yard, but only by reference and not for the purpose of enabling the wit- to the paper; his testimony was rejected. 87 ness to gain entirely new and original infor- This view has also been taken by the Sumation from it; 29 and whether a memorandum preme Court of the United States in a very can be used for this purpose depends upon
recent case. The memorandum in question whether the witness, after examining it, can had been made by the witness twenty months state the fact from memory;
80 that the wit- before its date. The witness testified that he ness may inspect it provided after doing so had no present recollection of the transache distinctly recollects the facts to which it tion, or no remembrance of it otherwise than relates, independent of it.31 He must swear as stated in the paper, but that he knew to the fact from memory,
for it is his it took place because he had so stated it in recollection, and not not the memorandum,
the memorandum, as it was his duty to do, that is the evidence. 33 Hence, if he can
and because his habit was never to sign a not speak to the fact any farther than as find
statement unless it was true, and that he was ing it stated in the written entry, his testi- willing to positively swear that it was true. mony will amount to nothing. It is not
The trial court admitted the evidence, but on enough for him to swear that he made the appeal the Supreme Court reversed this rulmemorandum himself, which he believes to be true, and that he relies upon it without Many other cases hold substantially the present recollection of the fact. 34 “If, after same rule. 39
29 Erie Preserving Co. v. Miller, 32 Conn. 444; S. C. 52 Am. Rep. 607.
Tanner v. Taylor, and Doe v. Perkins, supra. This 30 Watts v. Sawyer, 55 N. H. 39.
case is disapproved in Halsey v. Sinsebaugh, supra. 31 Feeter v. Heath, 11 Wend. (N. Y.) 477. This case See Cameron v. Blackman, 39 Mich. 108, 109. is disapproved in Halsey v. Sinsebaugh, supra.
35 Harrison v. Middleton,11 Gratt. (Va.) 527, 543. "The 32 Doe v. Perkins, 3 T. R. 409; S. C. 3 Durnf. & East. doctrine established by the authorities seems to be that 749; Tanner v. Taylor, cited in last case. In the first if the witness, after looking at the paper, to recall the case it is said that if the witness cannot swear from facts, can speak from his own recollection of them, and memory after inspection, and knows no more than what not merely because they are stated or referred to in he finds entered in the book or paper, the original must
the paper, his evidence will be admissible, notwithbe produced. In this case the witness testified from
standing the manner in which his recollection was reextracts made by himself from the original books
vived, and no matter when or by whom the paper was some entries in which were made by the witness and
mude, nor whether it be original or a copy, or an exsome by another. The witness confessed upon cross
tract, nor whether referred to by the witness in court examination that he had no memory of his own of the
or elsewhere." Citing 4 Phil, on Ev. (Cowen v. Hill's, specific facts contained in the entries; but that the
notes,) part. 2 p. 734. evidence that he was giving was founded altogether 36 Ackler v. Hickman, 63 Ala. 494, 498; S. C. 35 Am. upon the extracts. His testimony was rejected. It is Rep. 54. claimed in Merrill v. Ithaca, supra, that the rule of 37 Glover v. Hunnewell, 6 Pick. 222, 224. See also these cases only relate to copies and not original, and Ludewig v. Lyon, 8 Mo. App. 567; Berry v. Jourdan, 11 hence the confusion results from a misapprehension Rich. (S. C.) 67, 78; Coffin v. Vincent, 12 Cush. 98, 101. of the cases.
38 Maxwell's Exe. v. Wilkinson, 113 U.S. 656; S. C. 33 Henry v. Lee, 2 Chitty. 124; Hill v. State, 17 Wis. 5 S. C. Reptr. 691, S, C. 29 Reporter, 577. 675. See Pinshower v. Hanks, 1 West. Coast Reptr. S. 39 Nolin v. Parmer, 21 Ala. 66, 70; Memphis etc. R. C. Nev. 369; S. C. 18 Nev. 99, 105.
R. Co. v. Maples, 63 Ala. 601; See State v. Collins, 15 34 Lawrence v. Barker, 5 Wend. 301, 305, relying on $. C. 375; S. C. 40 Am. Rep. 697, for full discussion of
5. Summary of the Conflicting Views. it would be comparatively easy at the time or From this examination of the authorities it is immediately afterwards, to make an accurate seen that there are two distinct classes of record of their import; hence, to exclude cases on the question under consideration : such a record, when shown to have been hon1. Where the witness, by referring to the estly made, would be to reject the best and memorandum, has his memory quickened and frequently the only means of arriving at the refreshed thereby, so that he is enabled to
And it would seem that this reasonswear to an actual recollection. All authori ing should apply with greater force respectties concur that if the paper produces this ing memoranda of dates, amounts, lists of effect, it may be used. 2. Where the wit articles, etc., made in the regular course of ness, after referring to the memorandum, business, for the likelihood of their accuracy, undertakes to swear to the fact, yet not be is more obvious. The certainty of the concause he remembered it, but because of his tents being the truth, it is insisted that it is confidence in the correctness of the memo not important whether or not the witness can randum. In both cases, the oath of the wit swear to the fact from memory, for the ness is the primary substantive evidence re truthis not effected by that, either way. 41 lied upon; in the former, the oath being Therefore, if the witness states that he grounded on actual recollection, and in the knows the contents of the writing to be corlatter, on the faith reposed in the verity of rect, it is claimed that the ground upon which the memorandum, in which case, in order to its use is sanctioned, is thereby established, 42 judge of the credibility of the oath and of the and the reasons of the contrary rule, which reliance to be placed upon the testimony of
requires an independent recollection, are thus the witness, all the well considered cases
exploded. 43 hold that the memorandum must be original The oath of the witness to the truth of the and contemporary with the transaction, or paper is indisputably the true principle, yet nearly so, and must be produced in court. this admission does not necessarily concede Although at one time limited to transactions in that an independant recollection of the fact the regular course of business, it is now held, is not required. On the other hand, it would by a few cases, to apply to all kinds of me
seem that the reason for insisting upon such moranda. The first class of cases permit the
recollection is, that the witness may be in a use of copies, also memoranda not made by position to swear to the truth of the fact; for the witness, (but within the limits above
it is difficult to understand how he can state pointed out). While a few of the second absolutely, that he knows a writing to be class sanction the use of memoranda made by genuine and wholly accurate, unless he has a third person, yet it is believed that the best
some remembrance—though it be very slight considered cases hold that the paper must be
-of the facts to which it relates. He, of in the witness' own handwriting.
course, can be certain of his own handwriting
and can swear to his own signature, but this 6. Arguments in Favor of both Views.-As
alone does not warrant him in testifying to argument in favor of sustaining the principle of the second class of cases, it is urged that
the correctness of the statements in the writthe adverse rule would serve, in many cases,
ing. The rule which declares that it is not to defeat the ends of justice, and particular
necessary that an attesting witness to an inly in cases where witnesses are called upon to
strument of writing should recollect the cir
cumstances attending the attestation, cantestify to the language of parties, used upon
not be invoked to support this view, for that occasions long previous, for the reason that it is well known that the efforts of memory
40 Halsey v. Sinsebaugh, 15 N. Y. 488. See also Rayare seldom equal to the task of recalling, af
nor v. Norton, 31 Mich. 210, 212. ter any considerable lapse of time, even the 41 Downer v. Rowell, 24 Vt. 343, 346. exact substance of words and phrases; while
42 See Cowen and Hill's notes to Phil. on Ev. § 528,
rule; Murray v. Cunningham, 10 Neb. 167, 170; Webster v. Clark, 30 N. H. 245, 254; Marcly v. Schultz, 29 N. Y. 346, 351,approved in McCormick v. Penn. Centr. R. R. 49 N. Y. 315.
43 Downer v. Rowell, 24 Vt. 343, 346; Davis v. Field, 56 Vt. 426.
44 1 Wharton on Ev. $ 739; Alvord v. Collins, 20 Pick. 418; Burling v. Paterson, 9 C. and P. 570; 1 Greenl. on Ev. $ 437.
rule proceeds upon a different principle. There the only fact to be established is the genuineness of the signature, and when the witness testifies to that, he is not required to give evidence as to the contents of the instrument. The supposed analogy of this rule to the one under consideration, has doubtless led to much confusion in the minds of judges and text writers, and has thus introduced discord in the decisions. Indeed, Mr. Greenleaf's rule seems to be based upon this analogy, as a large number of his cited cases are of this character.
Even though the witness states that it is his "uniform and unvarying practice to make notes of the events, of the character noted, immediately after the occurence of the events, " this does not place him in a position to swear to their truth, when he confesses that he has not the slightest independent knowledge of them. He may believe they are true, have perfect faith in their accuracy, but this belief alone does not establish their truth. And if it be admitted that this "uni. form and unvarying practice” is sufficient to authorize the witness to swear to their truth, it is obvious that the rule must be confined to memoranda made in the ordinary course of business transactions. If the principles upon which this practice is founded are properly considered, the conclusion will be reached, that under no circumstances should a witness be permitted to give evidence of facts contained in
paper, unless there are grounds, apart from the contents of the paper itself, upon which he will be enabled to base his belief as to their truth and accuracy. This view does not assume that he shall remember the statements in the paper, indeed, he may not remember a single item, yet it does assume that he shall recollect something of the facts to which it relates.
EUGENE McQUILLIN. St. Louis, Mo.
COMITY ASSIGNMENT IN ANOTHER STATE-ATTACHMENT_WHEN LAWS OF ONE STATE WILL BE EXECUTED IN ANOTHER.
WEIDER V. MADDOX.
Supreme Court of Texas, June 11, 1886. 1. Comity.-The laws of one State will be enforced in another as to property within such latter State, unless such enforcement contravenes the public policy, or some law, general or special, of that State.
2. Voluntary Assignments. Hence a voluntary assignment made by a citizen of another State in accord. ance with the laws of that State conveying personalty, situated in this State, to a trustee for the benefit of as. signor's creditors will be enforced in this State, although such assignment has not been recorded, nor has the trustee executed a bond in this State in accordance with its laws: Semble, it would be otherwise if the assignment were not voluntary, but the effect of the operation of law, or otherwise compulsory.
3. Effect upon Title.-Such an assignment so made in conformity with the laws of the assignor's domicile passes to the assignee the title to personal property situated in this State, unless the operation of such assignment is limited or controlled by some law of this State.
4. Attachment.-Such an assignment so made in conformity with the laws of the assignor's domicile is good as against an attachment levied after the assignee had taken possession: Semble, it would be equally good if the attachment had been levied before such possession had been taken, so that such levy was subsequent to the execution of the assignment, because it is the assignment which passes the title, not the delivery.
Hyde Jennings, Carter & Wynne, for appellants; Hogsett & Greene, for appellees.
STAYTON, J., delivered the opinion of the court:
On April 27, 1882, M. Spiro, who was an insol. vent person residing in the State of Missouri, in accordance with the laws of that State made a voluntary assignment of all his property for the benefit of his creditors, except such as by the laws of the State in which he resided, was exempted from forced sale. The assignment was such as, under the laws of this State regulating assignments by insolvent debtors, would be held valid if made by a person here resident, unless vitiated by the fact that the exempt property must be ascertained by the laws of State of Missouri. The assignment expressly covered a stock of goods situated in Fort Worth, Texas, at which place, as well as at the city of St. Louis in the State of Missouri, Spiro was doing a mercantile business at the time the assignment was made. The goods in Fort Worth were seized by the appellee, Maddox, who was the sheriff of Tarrant county, on the next day after the assignment was made, under attachments issued in suits instituted against Spiro by some of his creditors. This action is brought by the assignee appointed by the deed of assignment, against Maddox and the sureties on his official bond as sheriff to recover