Redden v. Spruance

4 Del. 265

• Court: Supreme Court of Delaware
• Decided: June 5, 1845
• Status: Published

Opinion

The unanimous opinion of the cotírt was announced by Judge Harrington.

Harrington, Justice.

—The general rule of evidence is not questioned, that the witness must swear to facts within his own knowledge, though his memory may be refreshed, and his knowledge verified, by reference to written memorandums. Further than this the memorandum or writing cannot be used; except in cases where it was made in the usual course of business as evidence of the fact to be proved; as in book entries, notes of presentment, protest, &c.; or where it is made with the knowledge and concurrence of the party to be charged, for the purpose of charging him ; or where the verification of the writing itself establishes the fact to be proved, as in the case of the attestation of solemn instruments. So where the question was whether a bill of exchange had passed through a banker’s hands, his clerk was allowed to prove his own writing on it, though he did not recollect it. Also with regard to inventories and schedules; precise dates; particular words, and other matters which the memory would not be likely to retain, a greater liberty of reference has been allowed, where the notes were made at or about the time of the transáction, and where the witness remembers that at the time they were made he knew them to be correct and true. This seems to be carrying the principle of substituting memorandums for the sworn recollection of witnesses far enough. It has been done from the apparent necessity of cases occurring so often as to form classes; but none of the cases heretofore adjudged to be exceptions to the general rule of evidence, have come up to the proposition now before us, that a statement of facts in a letter written by a witness, shall be evidence of those facts, merely because he will attest his own general veracity, though he cannot recollect any thing about them. What is that more than the unsworn statement of the wit hess'! He is called' to prove a conversation which he had many years ago with one of the defendants, and to establish a fact admitted by the defendant in that conversation. He has no recollection that such fact was admitted by the defendant; .he does not remember that at any time he did know that it had been admitted; he did not remember the conversation; or that he ever wrote the letter; but on its production he recognizes it to be his, remembers writing it, and remembers the conversation, and there his knowledge stops; though, being a man of truth, he is willing to swear from general confidence in his own veracity, that what the letter contains is true.

If we analyze this letter it is apparent that it cannot be regarded as legal evidence alone, or supported by proof of the general good character of the writer. It was made for no purpose of perpetuating testimony; from no necessity in the usual course of business ; by no one connected with the defendants; by a third person in casual correspondence with the plaintiff; not under oath; not subject to cross examination; arid which cannot now be the subject of a cross examination, for the memory of the writer is a blank as to every matter contained in the letter. It is, therefore, in itself a simple unsworn statement of facts not otherwise proved. Is this strengthened by proof that the writer is in general a man of truth 1 Certainly not. He is unable to testify on oath as to any fact contained in the letter; and, however good his general character may be, whether proved to be such by himself or by others, it is not good enough, nor is any man’s good enough, to dispense with the necessity of an oath, or make an unsworn statement evidence. The question is not whether the witness is a man whose unsworn statements verbally or in writing are likely to be true; it is whether facts so stated can be admitted in evidence without an oath to verify them, and that oath founded upon a knowledge or recollection of the facts, and not merely upon the writer’s general reliance on the accuracy as well as truth of his own statements.

Layton and Houston, for plaintiff. Frame and Bates, for defendants.

The case presents a remarkable instance of failure of memory; and, though we may regret the consequence in this particular case, we are bound by what we consider well settled and wise rules of evidence to exclude the contents of this letter. It states an important admission made to the witness by one of the defendants, and the writer is a man of good character; but his memory does not enable him here as a witness under oath to confirm that admission, and it would be an extremely dangerous precedent to admit his mere statement in evidence.

A great many cases were cited in the argument which it is unnecessary particularly to review. These with many others are examined in the American note to Price vs. Lord Torrington, Smith’s Leading Cases, 43 Law Lib. 223, and the result of all of them is “ that entries made in the regular and usual course of business are admissible in evidence, after the death of the person who made them, on proof of his handwriting; and, during his life, if authenticated by himself: other entries may be used to refresh the memory, but are not admissible in evidence.”