The court says: "An entry or memorandum made by the witness himself, at or near the time of the transaction in question and before it has in any degree faded from his memory, which is full and complete, so as naturally to suggest and aid the mind in recalling what really transpired, is a strong ground of reliance and belief. It would, therefore, seem that it is a legitimate subject of inquiry and examination with reference to a witness referring to entries on the stand for the purpose of refreshing his recollection, whether the memorandum thus used and referred to really does assist his memory or not. That must depend in some measure upon its character, and that can be ascertained only by inspection and cross-examination in respect to it, and when and by whom made, its appearance, genuineness, fullness and faithfulness.

'It is always usual,' says Phillips (1 Phil. Ev. p. 289), 'and very reasonable, when a witness speaks from memoranda, that the counsel should have an opportunity of looking at them when he is cross-examining the witness;' and Starkie (1 Starkie, Ev. p. 179) asserts the same doctrine. He remarks: "The witness may be cross-examined as to other parts of the entry.' If the document be produced the opposite counsel is entitled to cross-examine from it. See also part 1, Cowen & Hill's notes (2d ed.) 757; Rex v. Ramsden, 2 Car. & P. 603. The view as presented by these authorities is alone consistent with the party's right to cross-examine the witness upon whose credibility the question in issue somewhat depends, and which, it is said, constitutes a 'strong test, both of the ability and willingness of the witness to declare the truth.' In no other way can his accuracy and recollection be ascertained and tested, which in all cases are proper matters of inquiry with a view to weighing his evidence, and the range of inquiry is open to this extent. And a witness cannot deprive a party of this right, or shield himself from the obligation of disclosing the whole truth to this end, or refuse the production and examination of a memorandum which is in court, and upon which he relies and to which he refers for the reason disclosed by this case; certainly not, unless it appears to the court that he had a reasonable ground of belief that he would subject himself to personal injury in consequence of producing and allowing an examination of it.”

Mr. Justice Andrews, in Peck v. Valentine, 94 N. Y. 569, characterizes this right to inspect the document and cross-examine

the witness as one of great importance, and a substantial safeguard and protection against fabricated evidence. To the same effect are the following decisions: Peck v. Lake, 3 Lans. 136; Chute v. State, 19 Minn. 271; Duncan v. Seeley, 34 Mich. 369; Stanwood v. McLellan, 48 Me. 275; Tibbitts v. Sternberg, 66 Barb. 201; McKivitt v. Cone, 30 Iowa, 455; Dugan v. Mahoney, 11 Allen, 573; Costello v. Crowell, 133 Mass. 352; Adae v. Zangs, 41 Iowa, 536; Davis v. Field, 56 Vt. 426; Burgess v. Bennett, 20 Week. Rep. 720.

When a witness produces a memorandum, and testifies that he made it in the usual course of business, and that he knew at the time its contents were true, his testimony and the memorandum are both admissible as evidence; and if the person who made the memorandum or entries in books is dead, they are admissible as evidence on proof of his handwriting, and of the fact that they were made in the usual course of business, at or about the time of the transaction to which they relate. Hancock v. Kelly, 81 Ala. 368.

A witness may be allowed to refresh his memory by referring to memoranda made by himself, relating to numbers, dates, sales and deliveries of goods, payments and receipts of money, accounts and the like, in respect to which no memory could be expected to be sufficiently retentive without depending upon memoranda. Wernwag v. Chicago & A. R. Co. 20 Mo. App. 473; Howard v. McDonough, 77 N. Y. 592.

To render a memorandum admissible as evidence, the witness must be able to testify that he knew its contents when it was made and knew them to be true; it must have been made at or near the time of the occurrence or transaction to which it relates, and the original must be produced, or its absence accounted for. But a witness may refresh his memory by reference to a memorandum made at or about the time of the occurence to which it relates, when he knows it to be correct, and after refreshing his memory, can testify from independent recollection; and he may use a copy which he knows to be correct without producing the original; in which case, the memorandum is not admissible as evidence unless called for by the adverse party, nor can a copy be used if the original is in court. Stoudenmire v. Harper, 81 Ala. 242.

A witness will be permitted to refresh his memory by an examination of the memoranda reasonably contemporaneous with the

transaction to which they relate, regarding dates, figures, results of calculation and the like. Friendly v. Lee, 20 Or. 202.

A witness may be permitted to refresh his memory by reference to bank book entries and by inspection of stubs of checks, where such entries were made by those having charge of the books, in the usual and ordinary course of the business in which the witness was at the time engaged and with the conduct of which he was familiar, and were examined by him and found correct and were calculated only to render accurate and definite that which was otherwise in a manner shown to be true by his evidence. Third Nat. Bank v. Owen, 101 Mo. 558.

A reporter for a commercial agency who visited a certain person for the purpose of getting a statement of his financial condition and who has made a copy of his statement, may in testifying as to representations made by such person refresh his memory from the copy, but where he does not remember the figures given him by such person but only that he went to him and procured a statement he cannot read the copy in evidence. Caldwell v. Bowen, 80 Mich. 382.

An almanac may be received in evidence, to refresh the memory of the jury as to the time the moon rises or sets. Case v. Perew, 46 Hun, 57.

If a witness swears that he made an entry or memorandum in accordance with the truth of the matter as he knew it to exist at the time of the occurrence, such entry or memorandum is admissible in evidence in confirmation of what the witness states from memory. Owens v. State, 67 Md. 307.

A witness cannot refresh his memory from an affidavit previously sworn to and subscribed by him ex parte, unless it be shown that the affidavit was written by him or under his direction at the time the facts occurred or immediately thereafter, or at some other time when the facts were fresh in his memory, and that he knew the same were correctly stated in his affidavit. Morris v. Lachman, 68 Cal. 109.

A witness may be permitted to refresh his memory from a writing or memorandum made by himself shortly after the occurrence of the fact to which it relates; but it is only when the memory needs assistance that resort may be had to these aids, and if the witness has an independent recollection of the facts inquired about, there is no necessity nor propriety in his inspecting any writing or memorandum. State v. Baldwin, 36 Kan. 3.

The copy of a writing, as well as the original may be referred to by the witness, if his memory, refreshed thereby, enables him to testify of his own recollection of the original facts, independent of his confidence in the accuracy of the copy. But he is not in such case to read from the copy. Bonnet v. Glattfeldt, 120 Ill. 166.

A witness in fixing the date of a transaction may refer to a book or diary and the entries therein, but the book or diary may not be produced for the inspection of the jury. First Nat. Bank of Dubois v. First Nat. Bank of Williamsport, 114 Pa. 1.

The supreme judicial court of Massachusetts in a well considered case, held that a newspaper reporter who had made specific memoranda of certain alleged facts, and had frequently woven the data so obtained in a newspaper article, which had been printed, might examine the printed report for the purpose of assisting his recollection. It was not contended that the written or printed report could be put in evidence. Com. v. Ford, 130 Mass. 64, 39 Am. Rep. 436.

The Georgia supreme court seems to have adopted a most liberal view of the subject, and admits a memorandum in evidence, on the ground that it is a part of the res gestæ, and is further competent as corroborating the memory of the witness. The memorandum is regarded as a memorial made at the time of what transpired in a form more durable and less liable to mistake than mere human memory. Reviere v. Powell, 61 Ga. 30, 34 Am. Rep. 94. This decision exhausts the logic of the case, and it is to be regretted that it is not of wider acceptation.

The rule is no doubt well settled that a witness for the purpose of refreshing his memory may use any memorandum made at the time of a transaction in regard to which he is called upon to testify, whether made by himself or another, and when his memory has been refreshed, he must testify to facts of his own knowledge, the memorandum itself not being evidence. Bigelow v. Hall, 91 N. Y. 145.

There seems to be two classes of cases on this subject. 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; and where the witness, after referring to the memorandum, undertakes to swear to the fact, yet, not because he remembers it, but because of his confidence in the cor

rectness 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 upon actual recollection, and in the latter on the faith imposed 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 be original and contemporary, and produced in court. Davis v. Field, 56 Vt. 426.

A witness having no recollection of the details of a fact claimed to have occurred in the course of the routine of his official business, may testify to the uniform routine, and that the details of this transaction must have been in accordance with that routine or habit. Abbott, Trial Brief, § 394, citing Morrow v. Ostrander, 13 Hun, 219; People v. Oyer & Terminer, 83 N. Y. 436, aff'g People v. Genet, 19 Hun, 91.

A witness may be permitted to refresh his memory from a writing or memorandum made by himself shortly after the occurrence of the fact to which it relates, but it is only when the memory needs assistance that resort may be had to these aids, and if the witness has any independent recollection of the facts inquired about, there is no necessity nor propriety in his inspecting any writing or memorandum. State v. Baldwin, 36 Kan. 3.

Of similar tenor are the New York cases which uniformly hold that a memorandum may be read in evidence, if made at the time and by the witness who made them. Halsey v. Sinsebaugh, 15 N. Y. 487. It is competent to read an entry made by a witness, or a witness may use one made by another, if he can testify then from recollection to the fact to which the entry relates. He cannot refer to an entry not original, and to one not made at or near the time. Marcly v. Shults, 29 N. Y. 346; Guy v. Mead, 22 N. Y. 462; Russell v. Hudson River R. Co. 17 N. Y. 134; Odell v. Montross, 68 N. Y. 499. The fact that the memorandum was made by the witness should be proven with a degree of certainty which leaves no room for doubt. Gilchrist v. Brooklyn Grocers Mfg. A880. 59 N. Y. 499.

871. The Formula Deduced. The formula deducible from the authorities is this: "It is competent to read an entry made by a witness, of any fact material to the issue, if made at or near the time when the fact occurred, and he can swear that it was made correctly (Guy v. Mead, supra); or may use an entry made