Wolfborough v. Alton

18 N.H. 185

• Court: Superior Court of New Hampshire
• Decided: July 15, 1846
• Status: Published

Opinion

Gilchrist, J.

The question presented by the case is, whether the account-book of the witness, containing original entries made by him, for the purposes for which such entries are usually made, was properly admitted to be read to the jury.

An original memorandum, or other writing, made by a witness at the time of a transaction, foj; the purpose of preserving the evidence of it in all its details, may, without doubt, be read in evidence to the jury for the purpose of proving the facts which are recorded in it. Such evidence is better than the uncertain and fading memory of man, in most cases, and in many is the only kind of which the facts sought to be proved is reasonably and practically susceptible. Haven v. Wendell, 11 N. H. Rep. 112.

If, therefore, these entries had been made to record a fact that it was material to the issue to prove, they would have been admissible, whether the witness recollected the facts or not; for such memoranda are evidence sometimes after the person who made them is dead. Welch v. Barnett, 15 Mass. 380; Washington Bank v. Prescott, 20 Pick. 339. But such is not this case. The entries showed that the witness made shoes for Rogers, lent him his horse, and sold him leather and the like, which facts were immaterial to the issue, and evidence to prove them could not regularly have been admitted.

If the witness could, by using the book, have refreshed his own memory, so as to have stated any fact that was material, it would have been proper, without doubt, to permit him to do so, and such is the constant practice. 1 Greenl. Bv., sec. 436. If, upon examining the entries, he had been able to say that when he made them he knew that Rogers lived a neighbor to him, and that the entries were correct, that would have enabled him, perhaps, to testify to something material. But the memoranda themselves are not evidence.

Verdict set aside.