
    Lovell v. Wentworth.
    1. If no reply is filed to an answer of new matter constituting a defense but the cause is tried without objection as though such allegations had been denied, a demand for judgment on the pleadings, after each party has introduced his evidence, is too late,
    2. Where a statement of facts alleged to have occurred a year previously, is entered in a memorandum book, and the person making the entry brings suit involving the truth of the matters so stated, and while the suit is pending the book becoming worn, he copies the statement into another book, but is unable, except as aided by the writing, to testify to material matters therein, he should not be permitted, if objection be made, to use such copy while testifying as a witness in the cause.
    . Error to the District Court of Hamilton county.
    Wentworth claimed, in an action in the court of common pleas against Lovell, commenced in 1875, that be loaned money to Lovell and took his promissory notes therefor, payable on demand, as follows: September,1868, $225; October, 1868, $225; November, 186S, $125 ; October, 1869, $220 ; February, 1870, $200; December, 1871, $200; and that in February, 1872, the notes of November, 1868, and December, 1871, were destroyed. an additional sum of money was loaned, and a note for $458 was taken as representing the two notes and the additional sum of money; that later, in 1872, having the five notes in his possession, he applied to Lovell for payment of the notes of September, J868, and February, 1870, and left the same with him in order that he might calculate the interest thereon ; that Lovell has never returned the two notes, nor paid them, but has paid the other three notes, that is, the notes of October, 186S, October, 1869, and February, 1872. The action is to recover the amount of the notes of September, 1868, and February, 1870, of which, Wentworth claims, Lovell improperly retains possession.
    Lovell admits in his answer that he received moneys from Wentworth, and gave his notes therefor, “ all of which have been fully paid by this defendant to said plaintiff.” ILe claimed, in his testimony, that the notes for which a recovery is sought never had an existence, and no such sums of money were received; that four notes were given for money so loaned, two of which — not the notes stated by Wentworth — were consolidated, leaving three instead of five notes, all of which were paid.
    Wentworth testified that in 1873 he wrote in a memorandum book a statement of the amounts loaned to Lovell, and the dates of the loans ; that the dates and amounts of the notes were the same as in the statement, and were as hereinbefore set forth, not having the notes — certainly not all of them — in his possession at the time; that in 1876, since the commencement of this suit, the memorandum book being much worn, he copied the statement into a new memorandum book, which he produced. He said: “ I cannot remember the notes, dates or amounts without referring to these lead pencil memoranda.” Lovell objected tothe use of the memoranda by Wentworth while so testifying, but the objection was overruled, and Wentworth was permitted to and* did use the book for the purpose, as was stated, of refreshing his memory, and the book was offered in evidence, and Lovell excepted to the rulings of the Court on the subject.
    Wentworth moved the .Court for judgment on the pleadings, no reply having been filed to the alleged answer of payment ; but the cause had been tried and finally submitted to the jury, as though such allegation of payment had been denied, and the Court overruled the motion for judgment on the ¡headings.
    Yerdict and judgment for $637.27. Affirmance in the District Court, after remittitur of $13.50, by reason of error in calculation of interest. This petition in error is filed for the reversal as well of the original judgment as the judgment of affirmance.
    
      Mallon Coffee, for plaintiff in error.
    
      E. B. J. Molony and O. W. Gerard, for defendant in error.
   Okey, <1.

The Court properly overruled the motion for judgment on the pleadings. Assuming but not deciding that a reply was proper, the case was tried, without objection, as though the allegation of payment had been denied. When the evidence was all in, it was too late to make the objection. Woodward v. Sloan, 27 Ohio St. 592.

The cases relating to the fight of a witness to examine, on the witness stand, memoranda for the purpose of refreshing his memory, have been so fully considered in text-books (Starkie’s Ev. 10th Am. ed. 177; 2 Phiilipps’ Ev. 5th Am. ed. 767, 916*; Roscoe’s N. P. Ev. 14th ed. 176; Taylor’s Ev. §§ 1264, 1265 ; 1 Greenleaf’s Ev. § 438 ; 1 Whart. Ev. § 523; Abbott's Tr. Ev. 320). especially in the notes of the American editors of Starkie and Phiilipps (and see 14 So. Car. 444; 70 Ala. 63 ,; 15 Am. Dec. 194, note), that we deem it unnecessary to review them in this opinion. While the present tendency, perhaps, is to grant rather than deny to the witness the privilege of examining such memoranda, and while the tendency is also to concede to the judge presiding at the trial considerable discretion in this respect, there being no fixed or definite rules to guide him, still, we think it safe to say, that under the most liberal rule recognized in any well considered case, the plaintiff below, Wentworth, should not have been permitted to use the memorandum book while testifying as a witness. The entries in the original book were all made in 1873, and all at the same time. They cover transactions from 1868 to 1872, and the last transaction referred to therein occurred more than a year before the memorandum was made. Nor is this all. The memorandum produced in court was a copy of the original, made in 1876, since this suit was commenced; and it is fair to say the copy was made for use in this cause. The original, though worn, might have been preserved. Wentworth admitted that he could not “ remember the notes, dates or amounts without referring to the lead pencil memoranda.” Hence this was not the use of a paper merely to refresh the memory, so that, the memory being refreshed, the witness might be enabled to testify to the fact sought to be established, independently of the paper; and, indeed, to allow a paper so made to be thus used, is to permit the introduction of evidence which is not only dangerous in its character, but unwarranted by reason or authority. - We need not express an opinion as to the right to refer to the original, if that had been produced, nor do we mean to deny that, under some circumstances, a copy may be properly examined to refresh the memory. As a general rule, it must appear, where the original memorandum is used, that the person preparing it made it “ at a time when he had a distinct recollection of the facts, and cmte litem moiam ” (Powell’s Ev. 4th ed. 363); and undoubtedly the latter condition is equally indispensable where the memorandum produced is a copy. We hold that, under the circumstances, Wentworth had no right to use the memorandum produced in this case for any purpose, a.nd that the objection of Lovell’s counsel ought to have been sustained.

Judgment reversed.:  