While most of the authorities are uniform on the general rule of practice, there is, however, considerable discord on some of the points which frequently arise. Much of this conflict arises from a failure, in many instances, to properly restrict the use of the memorandum, resulting from a misapprehension of the true principles governing the practice. It must be remembered that the paper has a distinct office. It is of itself but mere hearsay evidence and used solely for the purpose of aiding the memory, and it can in no proper sense supplant the witnesses testimony. It must be strictly confined to this purpose. 2. Conflict as to Whether Memory of Fact Should be Independent of Memoranda.There are two conflicting views presented by the decisions with respect to this practice. Even in the decisions of the same State this discord is apparent. An attempt will be here made to fully state these conflicting positions, to harmonize as much as possible, and finally, to point out, as near as may be, the true principles which underlie the practice. One class of cases holds that it is sufficient toauthorize a use of the memordum, if after looking at it, the witness testifies to its genuineness and accuracy, either from having made it himself, when the facts to which it relates were fresh in his memory, or from having verified it immediately, or very soon after it was made. In other words, in such case, the witness will be permitted to swear to the fact, yet not because he remembers it, but because of his confidence in the correctness of the memorandum. While the other class is to the effect that the witness must have a present recollection, wholly independent of the memorandum, of the transaction mentioned in it, although the inspection of the paper may alone awaken this recollection. 3. Independent Recollection Unnecessary. (a) Rule Stated and Illustrated.-As consistent with the first view, that an independent recollection of the fact is unnecessary, the rule has been frequently laid down that where a witness has so far forgotten the facts of the transaction that he cannot recall them, even after looking at the memorandum; yet, Lindsey, 1 East. 227; Kensington v. Inglis, 8 East. 273; Horne v. McKenzie, 6 Cl. and Fin. 628; Burton v. Plummer, 2 A and E. 341; Rex v. Duchess of Kingston, 20 How. St. Tr. 619. 5 Henry v. Lee, 2 Chitty, 124. if he testifies that he once knew them and made a memorandum of them at the time or soon after they transpired, which he intended to make correct, and which he believed to be correct, such memorandum may be used to refresh his memory, although he has no present recollection of them.6 Hence, under this rule, where check-slips are made by a clerk in the ordinary course of business, showing the number of cars shipped and the descriptive mark of the goods, they are admissible with the testimony of the clerk that they were truly made by him, and that the goods were marked and shipped as thereby indicated, although the witness has no present recollection of the transaction." And where the point is to prove protest and notice, a notary may refer to an entry in his book where it was his habit to make such entries at the happening of the event, although he has no independent recollection of the fact in question, his belief being based altogether upon such entry. Likewise of a notary's clerk who had forgotten his entry of notice to an endorser.9 The same rule has been held to apply to a memorandum of a gambling transaction;10 so to notes of evidence of counsel; so to the entry of a bank clerk;12 so to the entries of charges for penalties of a town clerk. 13 And it has also been held that under like 6 Howard v. McDonough, 77 N. Y. 592; Costello v. Crowell, 133 Mass. 352, 355; Abbott's Trial Ev., p. 322, par. 38; Wernag v. C. & A. R. R. Co., (Kansas City Court of App.) 22 Cent. L. J. XXXV. Mo. Add., 20 Mo. App. 7 Shiedley v. State, 23 Ohio St. 130. 8 Bank of Tennessee v. Cowan, 7 Humph. (Tenn.) 70. "To require that a notary shall particularly recollect every specific case when he protests commercial paper and directs notice to the parties entitled thereto would be to defeat recovery to a great extent upon such instruments, for in the very nature of the thing it is impossible for a notary to retain such recollection when the amount of business done by him is extensive. It is sufficient in such cases, if the statement be contained in his notary book, and it was his habit to make such entries at the happening of the event in such case; his belief based upon such entry is good evidence and should be received." See Bullard v. Wilson, 5 Mart. (La.) (N. S.) 196; Mangham v.Hubbard,8 B. and C. 16. 9 Haige v. Newton, 1 Rep. Const. Court, 423. 10 State v. Rawls, 2 Natt. & McCord (S. C.) 334; approved in Halsey v. Sinsbaugh, 15 N. Y. 485, 487. 11 Rogers v. Burton, Pick. 108, 118; Clark v. Vorce, 15 Wend. 193. 12 Bank v. Boraef, 1 Rawle, 152. 13 Corp. of Columbia v. Harrison,2 Rep. Const.Court, 213. circumstances a witness may refresh his memory from corporation books, 14 or from lists made by another which were signed and sworn to by the witness. 15 Dr. Wharton says that this is the prevailing rule: "The fact that the witness has no independent recollection of the notes, does not exclude the testimony, as to the facts stated in the notes, when he states that it was his uniform and unvarying practice to make notes of the events of the character noted immediately after the occurrence of the events, and the memoranda are part of the notes in * In such case it is, of course, question. * necessary that the notes relied on should be produced in court.” 16 (b.). Limitations on Rule.-This rule is strictly confined to cases where the "uniform and unvarying practice" is to note the fact immediately after the event.17 The memorandum must have been "presently committed to writing" by the witness, "while the occurrences mentioned in it were fresh in his recollection," 19 "written contemporaneously with the transaction," 20 or "nearly so with the fact deposed to." The fact that the memoranda are made in the regular course of business is not alone sufficient, unless contemporaneous with the transaction to which it relates.21 Some cases restrict the rule to entries made in the regular course of business, but others hold that it is applicable to every species of memoranda. 28 The rule also requires the memorandum to be an original entry and not a copy; 24 that it be 14 Mattocks v. Lyman, 16 Vt. 113. 15 Davis v. Field, 56 Vt. 426. 16 1 Whart. on Ev. § 518 and Cases in N. 1. 17 1 Whart. on Ev. § 518. 18 Lord Holt in Lindwell v. Sandwell, Comb. 445; S. C. Holt. 295. 19 Lord Ellenborough in Barrough v. Martin, 2 Camp. 112. 20 Ch. Justice Tinsdall in Stemkeller v. Newton, 9 Car. & P. 313. 21 Chaffee v. U. S. 18 Wall. 516; Ins. Co. v. Weide, 9 Wall. 677; S. C. 14 Wall. 375; Nicholls v. Webb, 8 Wheat. 326, 337. 22 Bank v. Culver, 2 Hill, 531; Merrill v. Ithaca etc. R. R. Co. 16 Wend. (N. Y.) 586, 599; Davis v. Field, 56 Vt. 429. 23 Guy v. Mead, 22 N. Y. 465. See Russell v. Hudson R. R. Co. 17 N. Y. 134. 24 Cowen J, in Merrill v. The Ithaca Oswego R. R. Co. 16 Wend. 586, 599, after a full examination of the English and American authorities gives the result that made by the witness himself,25 or where it is made by another, that it be verified by the witness soon after it is made, and that he knows from his own personal knowledge of the transaction that the facts therein recorded are correct: at least it is believed that no case has extended it farther.26 (c.) Greenleaf's Rule. - Mr. Greenleaf states a rule which is not only in harmony with the view under consideration, but which seems to go farther. He says: "Where the writing in question neither is recognized by the witness, as one which he remembers to have before seen, nor awakens his memory to the recollection of anything contained in it; but, nevertheless, knowing the writing to be genuine, his mind is so convinced, that he is on that ground enabled to swear positively to the fact." 27 This rule has not escaped severe criticism. It was strongly condemned by Chief Justice Whiteman, of Maine, in Bradley v. Davis. 28 All the cases cited by Mr. Greenleaf in support of it, were where the witness could recognize the genuineness of his own handwriting, although he was not able to recall ever having written it, or the purpose for which it was written. If this rule is meant to be confined to proving signatures in the attestation of instruments it is correct, but if applied to cases where the purpose is to refresh the memory of a witness as to facts contained in a written document, it cannot stand as sound law. 4. Independent Recollection Necessary. "original entries, attested by a man who makes them, may be read to the jury, though he remembers nothing of the facts they record," Halsey v. Sinsebaugh, 15 N. Y. 487, approves this distinction also the case of State v. Rawls, supra, and holds that Lawrence v. Barker, 5 Wend. 301; Feeter v. Heath, 11 Wend. 485; Calvert v. Fitzgerald, 1 Litt. Sell. Cas. 388, and Jumta Bank v. Brown, 5 Searg. and R. 235,which announce a contrary rule, are bad law and quotes and follows the rule laid down in Cowen and Hill's note to Phillips on Ev. (note 528 to p. 290) "that an original memorandum made by the witness, presently after the facts noted in it transpired and proved by the same witness at the trial, may be read by him, and is evidence to the jury of the facts. contained in the memorandum, although the witness. may have totally forgotten such facts at the time of the trial." Guy v. Mead, 22 N. Y. 465 approves these cases. See also, Davis v. Field, 56 Vt. 429; Jones v. Stroud, 1 E. C. L. R. 96; 2 Car. and P. 196: Fisher v. Kyle Mich. 455. 25 See cases in last last note. The doctrine just stated and Illustrated is not supported by all cases. The rule that the evidence must be given of the fact wholly independent of the memorandum, as above indicated, has been adopted by numerous decisions. Thus, it is said, in support of this principle, that if the witness has no recollection of the transaction, separate and distinct, of the memorandum, or if, upon inspecting the paper his memory is not awakened to the fact, he will not be permitted to use it, although he may have perfect faith in its correctness. In other words, it is contended that the paper must be used for the sole and distinct purpose of refreshing the memory, and not for the purpose of enabling the witness to gain entirely new and original information from it; 29 and whether a memorandum can be used for this purpose depends upon whether the witness, after examining it, can state the fact from memory; 30 that the witness may inspect it provided after doing so he distinctly recollects the facts to which it relates, independent of it.31 He must swear to the fact from memory, 32 for it is his recollection, and not the memorandum, that is the evidence.33 Hence, if he cannot speak to the fact any farther than as finding it stated in the written entry, his testimony will amount to nothing. It is not enough for him to swear that he made the memorandum himself, which he believes to be true, and that he relies upon present recollection of the fact. it without "If, after 29 Erie Preserving Co. v. Miller, 32 Conn. 444; S. C. 52 Am. Rep. 607. 30 Watts v. Sawyer, 55 N. H. 39. 31 Feeter v. Heath, 11 Wend. (N. Y.) 477. This case is disapproved in Halsey v. Sinsebaugh, supra. 32 Doe v. Perkins, 3 T. R. 409; S. C. 3 Durnf. & East. 749; Tanner v. Taylor, cited in last case. In the first case it is said that if the witness cannot swear from memory after inspection, and knows no more than what he finds entered in the book or paper, the original must be produced. In this case the witness testified from extracts made by himself from the original bookssome entries in which were made by the witness and some by another. The witness confessed upon crossexamination that he had no memory of his own of the specific facts contained in the entries; but that the evidence that he was giving was founded altogether upon the extracts. His testimony was rejected. It is claimed in Merrill v. Ithaca, supra, that the rule of these cases only relate to copies and not original, and hence the confusion results from a misapprehension of the cases. 33 Henry v. Lee, 2 Chitty. 124; Hill v. State, 17 Wis. 675. See Pinshower v. Hanks, 1 West. Coast Reptr. S. C. Nev. 369; S. C. 18 Nev. 99, 105. 34 Lawrence v. Barker, 5 Wend. 301, 305, relying on In one case a witness, to identify and disdistinguish certain articles in a ship yardwhich articles had been attached-selected them himself, but they were marked on the schedule by another person: at the trial he could not, after reading the schedule, distinctly recollect from memory that the articles were in the yard, but only by reference to the paper; his testimony was rejected.$7 This view has also been taken by the Supreme Court of the United States in a very recent case. The memorandum in question had been made by the witness twenty months before its date. The witness testified that he had no present recollection of the transaction, or no remembrance of it otherwise than as stated in the paper, but that he knew it took place because he had so stated it in the memorandum, as it was his duty to do, and because his habit was never to sign a statement unless it was true, and that he was willing to positively swear that it was true. The trial court admitted the evidence, but on appeal the Supreme Court reversed this ruling. 38 Many other cases hold substantially the same rule.39 Tanner v. Taylor, and Doe v. Perkins, supra. This case is disapproved in Halsey v. Sinsebaugh, supra. See Cameron v. Blackman, 39 Mich. 108, 109. 35 Harrison v. Middleton,11 Gratt. (Va.) 527, 543. "The doctrine established by the authorities seems to be that if the witness, after looking at the paper, to recall the facts, can speak from his own recollection of them, and not merely because they are stated or referred to in the paper, his evidence will be admissible, notwithstanding the manner in which his recollection was revived, and no matter when or by whom the paper was made, nor whether it be original or a copy, or an extract, nor whether referred to by the witness in court or elsewhere." Citing 4 Phil. on Ev. (Cowen v. Hill's, notes,) part. 2 p. 734. 36 Ackler v. Hickman, 63 Ala. 494, 498; S. C. 35 Am. Rep. 54. 37 Glover v. Hunnewell, 6 Pick. 222, 224. See also Ludewig v.Lyon, 8 Mo. App. 567; Berry v. Jourdan, 11 Rich. (S. C.) 67, 78; Coffin v. Vincent, 12 Cush. 98, 101. 38 Maxwell's Exe. v. Wilkinson, 113 U. S. 656; S. C. 5 S. C. Reptr. 691, S, C. 29 Reporter, 577. 39 Nolin v. Parmer, 21 Ala. 66, 70; Memphis etc. R. R. Co. v. Maples, 63 Ala. 601; See State v. Collins, 15 S. C. 375; S. C. 40 Am. Rep. 697, for full discussion of 5. Summary of the Conflicting Views. From this examination of the authorities it is seen that there are two distinct classes of cases on the question under consideration: 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. All authorities concur that if the paper produces this effect, it may be used. 2. Where the witness, after referring to the memorandum, undertakes to swear to the fact, yet not because he remembered it, but 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 of the reliance to be placed upon the testimony of the witness, all the well considered cases hold that the memorandum must be original and contemporary with the transaction, or nearly so, and must be produced in court. Although at one time limited to transactions in the regular course of business, it is now held, by a few cases, to apply to all kinds of memoranda. The first class of cases permit the use of copies, also memoranda not made by the witness, (but within the limits above pointed out). While a few of the second class sanction the use of memoranda made by a third person, yet it is believed that the best considered cases hold that the paper must be in the witness' own handwriting. 6. Arguments in Favor of both Views.-As argument in favor of sustaining the principle of the second class of cases, it is urged that the adverse rule would serve, in many cases, to defeat the ends of justice, and particularly in cases where witnesses are called upon to testify to the language of parties, used upon occasions long previous, for the reason that it is well known that the efforts of memory are seldom equal to the task of recalling, after any considerable lapse of time, even the exact substance of words and phrases; while 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. it would be comparatively easy at the time or immediately afterwards, to make an accurate record of their import; hence, to exclude such a record, when shown to have been honestly made, would be to reject the best and frequently the only means of arriving at the truth.40 And it would seem that this reasoning should apply with greater force respecting memoranda of dates, amounts, lists of articles, etc., made in the regular course of business, for the likelihood of their accuracy, is more obvious. The certainty of the contents being the truth, it is insisted that it is not important whether or not the witness can swear to the fact from memory, for the truthis not effected by that, either way.41 Therefore, if the witness states that he knows the contents of the writing to be correct, it is claimed that the ground upon which its use is sanctioned, is thereby established, 42 and the reasons of the contrary rule, which requires an independent recollection, are thus exploded.43 The oath of the witness to the truth of the paper is indisputably the true principle, yet this admission does not necessarily concede that an independant recollection of the fact is not required. On the other hand, it would seem that the reason for insisting upon such recollection is, that the witness may be in a position to swear to the truth of the fact; for it is difficult to understand how he can state absolutely, that he knows a writing to be genuine and wholly accurate, unless he has some remembrance-though it be very slight of the facts to which it relates. He, of course, can be certain of his own handwriting and can swear to his own signature, but this alone does not warrant him in testifying to the correctness of the statements in the writing. The rule which declares that it is not necessary that an attesting witness to an instrument of writing should recollect the circumstances attending the attestation, 44 not be invoked to support this view, for that can 40 Halsey v. Sinsebaugh, 15 N. Y. 488. See also Raynor v. Norton, 31 Mich. 210, 212. 41 Downer v. Rowell, 24 Vt. 343, 346. 42 See Cowen and Hill's notes to Phil. on Ev. § 528, p. 750. 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 "uniform 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 a 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. 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 accordance with the laws of that State conveying personalty, situated in this State, to a trustee for the benefit of assignor'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 insolvent 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 |