
    Mayor & Aldermen of Birmingham v. McPoland.
    
      Action on Written Contract, and on Common Counts for Work and Labor Lone and Materials Furnished.
    
    1. Mefreshiny memory of witness; copy of rw morandum. — When amem-orandum, to which it is proposed to permit a witness to refer for the purpose of refreshing his memory, does not purport to be the original, but a copy, made by some person other than the witness, the correctness of the copy must be proved before it can be used by the witness as an aid to his memory.
    Appeal from tbe City Court of Birmingham.
    Tried before tbe Hon. H. A. Shaepe.
    Tbis action was brought by tbe appellee, John McPoland, against tbe Mayor and Aldermen of tbe City of Birmingham, a municipal corporation, and was commenced November 7, 1891. Tbe complaint contained three counts. In tbe first count, tbe plaintiff claimed of tbe defendant tbe sum of $1778.15-100 alleged to be due under a written contract for the building of a sewer by tbe plaintiff for tbe defendant. Tbe second and third counts claimed tbe same sum as due, respectively, “on account, and for work and labor done and materials furnished by tbe plaintiff for tbe defendant.”
    One Fitzhugh, a civil engineer, being introduced as a witness for tbe defendant, testified that be made tbe measurements of tbe work done by tbe plaintiff in tbe construction of tbe sewer, but that be bad forgotten tbe result of tbe calculation made by tbe witness and one Kendrick from said measurements. Here tbe defendant’s counsel offered to show tbe witness a copy of a memorandum purporting to ■ have been made by said Kendrick from tbe calculations based on tbe measurements furnished by tbe witness. It was admitted that tbis paper, which was offered to tbe witness for tbe purpose of refreshing bis memory, was not tbe original memorandum made by Kendrick, but purported to be a copy thereof made by said Kendrick. Plaintiff’s counsel objected to tbe witness being allowed to examine tbe memorandum. Tbe court sustained the objection, and tbe defendant excepted. Tbis ruling is tbe only matter assigned as error.
    
      James J. BANKS, for appellant.
    E. T. TaliaeeRRO, contra.
    
   WALKER, J.

When tbe memorandum, to which it is proposed to permit a witness to refer for the purpose of refreshing his memory, does not purport to be the original, but a copy, made by some person other than the witness, the correctness of the copy must first be proved before it can be used by the witness as an aid to his memory. — Jaques v. Horton, 76 Ala. 238; Stoudenmire v. Harper, 81 Ala. 242. In the present case, the memorandum proposed to be shown to the witness Eitzhugh was admitted not to be the original, but what purported to be a copy made by one Kendrick. Kendrick was not introduced to prove the correctness of the copy, and it was not proposed to be shown that the witness Eitzhugh knew that the paper offered was a correct copy. The paper was wholly unauthenticated, and the court properly refused to permit the witness to use it for the purpose of refreshing his memory.

Affirmed.  