Davis v. Field

56 Vt. 426

• Court: Supreme Court of Vermont
• Decided: February 15, 1884
• Status: Published

Opinion

The opinion of the court was delivered by

Rowell, J.

It is contended that the grand lists were not substantive evidence on the question of defendant’s residence in this State. Such is the law in Massachusetts: Mead v. Roborough, 11 Cush. 362; Commonwealth v. Heffron, 102 Mass. 148; Sewall v. Sewall, 122 Mass. 156. But we do .not find it necessary to decide that question here, because it appears from the supplemental report that the referee did not base his finding of defendant’s residence at all upon the lists as substantive evidence, but “ upon the testimony of Dudley and Strong, refreshed and made more positive.in the case of the former by the lists as memoranda of what he did as lister, and other testimony,” etc. But it is objected to their admissibility for the purpose of refreshing recollection that they were not made by either Dudley or Strong; that neither had any recollection of defendant in any of the years in question; and that they did not in fact refresh the memory. But we think they were admissible for this purpose. The witnesses were officially concerned in making the lists to which they referred, and signed and swore to them. This amounted to saying that in the time of it they knew they were correctly made. It is not necessary that they should have been in the handwriting of the witnesses. Commonwealth v. Ford, 130 Mass. 64; Huff v. Bennett, 6 N. Y. 337; Henry v. Lee, 2 Chit. 124; 1 Whart. Ev. s. 516.

Nor was it necessary that the witnesses should have had an independent recollection of having seen the defendant in the years in question or of having taken his list. In Mattocks v. Lyman, 16 Vt. 113, a witness was allowed to testify to his supposition and belief as to the time when a transaction took place, although he had no recollection as to the. time independent of his cash-book. A notary’s belief that protest and notice were given, based on his entry in his books, his habit being to make such entry on the happening of the event, is evidence, though he has no recollection of the fact independent of his books. The same rule applies to a surveyor’s field-book used to refresh his memory. 1 Whart. Ev. s. 518. In Maugham v. Hubbard, 8 B. & C. 14, a witness called to prove the receipt of a sum of money was shown an acknowledgement of the receipt thereof signed by himself, and on seeing it said he had no doubt he received the money, though he had no recollection of it. Held sufficient parol evidence of the payment of the money. It is not generally necessary that an attesting witness should be able to recollect the circumstances attending his attestation, nor the fact that he saw the maker of the instrument sign it. It is enough prima facie if he swears to his signature, and that it would not have been affixed but for the purpose of attestation : 1 Whart. Ev. s. 739; Alvord v. Collin, 20 Pick. 418; Burling v. Paterson, 9 C. & P. 570.

The old notion that the witness must bo able to swear from memory is pretty much exploded. All that is required, is, that he be able to swear that the memorandum is correct. Downer v. Rowell, 24 Vt. 343.

There seems to be two classes of eases on this subject: 1. Where the witness, by referring to the memorandum, has his memory quickened and refreshed thereby, so that he is enabled to swear to an actual recollection ; 2. Where the witness, after referring to the memorandum, undertakes to swear to the fact, yet not because he remembers it, hut.because of his confidence in the correctness of the memorandum. In both cases the oath of the witness is the primary, substantive evidence relied upon ; in the former, the oath being grounded on actual recollection, and in the latter, on the faith reposed in the verity of the memorandum, in which case, in order to judge of the credibility of the oath and the reliance to be placed upon the testimony of the witness, the memorandum must he original and contemporary and produced in court. The testimony objected to comes within this latter class.

But there is another answer to the objection that the lists did not in fact refresh the recollection of the witnesses, and that is, if they did not, they did no harm, as their testimony would have been just as positive without them as with them, in which event the referee reports that his finding would have been the same.

If a debtor, residing out of the State when a cause of action accrues against him, comes into the State temporarily, with no intention of residing here, the creditor not knowing thereof, the Statute of Limitations is not thereby set in operation: Mazozon v. Foot, 1 Aik. 282; Hill v. Bellows, 15 Vt. 727. But when the “coming” is to dwell and reside permanently, it is not necessary in order to set the statute in operation that the creditor should have knowledge thereof; it is enough if he can acquire such knowledge by the exercise of reasonable diligence : Skinner, C. J., in Mazozon v. Foot, 1 Aik. 282; Redfield, C. J , in Hull v. Nesmith, 28 Vt. 791; Fowler v. Hunt, 10 Johns. 464; Dicker v. Davison, 2 Barb. Ch. 477; s. c. 2 Sandf. Ch. 61; Little v. Blunt, 16 Pick. 359 ; Whitton v. Wass, 109 Mass. 40; Angell Lim. ss. 206, 207. The finding of the referee on this subject, .brings the case within the last-mentioned rule.

Judgment affirmed.