
    
      James O'Neale vs. A. Y. Walton.
    
    Where a witness, of his own free will and accord, draws up a memorandum, or has it drawn up under his immediate direction, at the time of the fact, or recently afterwards, for the purpose of preserving the memory of it, he may adopt its contents as his testimony; although at the time of testifying he recollects nothing further than that he had accurately reduced, or procured to be reduced, the whole transaction to writing.
    But if the paper was drawn up weeks after the fact occurred, or if it was drawn up, or procured to be drawn up, by the party in whose favor the witness is called to testify, he cannot be allowed to testify to its contents, if he does not recollect them independently of the paper.'
    Can a \\ itness, for the purpose of refreshing his memory, be allowed to refer to a paper which was drawn up by the party in whose favor he is called to testify. Quarel
    
    
      Tried in the City Court of Charleston, July Term, 1844.
    This was an action of assumpsit, to recover a balance alleged to be due the plaintiff, a carpenter, for erecting certain buildings for the defendant. The point of serious controversy was as to the amount which the defendant agreed to pay for the buildings.
    The plaintiff and defendant had entered into some agreement, partly written and partly verbal; under which the plaintiff was to erect the buildings for the defendant. Some time afterwards, about the 1st Sept. 1842, the parties met in Fairchild’s back room, and had a conversation on the subject of the previous contract, in the presence of R. Fairchild, B. Neufville, and G. A. Hughes. About two weeks after the conversation, the plaintiff drew, or had drawn up, a paper containing what he alleged embraced the terms of the contract, as expressed and acknowledged in their previous conversation. This paper was presented to and signed by Fairchild, Neufville and Hughes, for the purpose of preserving the evidence of the contract, as it was understood by them in the conversation in Fairchild’s back room. On the trial of the case, they were called as witnesses, and the paper was presented to them, for the purpose of exciting their recollection of the facts contained in it. No objection was made to the use of the paper, as the means of refreshing the memory of the witnesses ; but when the witnesses said, as they did say, that independently of the paper itself, they had no distinct recollection of the facts which it contained, an objection was made, that the witnesses should not adopt the statements in the memorandum for their own recollection of the facts. Under the authority of the case of the State vs. Rawls, 2 N. and M!C. 332, they were, however, allowed by his Honor, the •Recorder, to do so; and although the paper did not go to the jury as evidence per se, its contents were transmitted through the medium of the witnesses’ testimony.
    The verdict was for the plaintiff, and the defendant appealed, and now moved for a new trial, on the ground that the Recorder erred in permitting the witnesses, under the circumstances, to testify to the contents of the paper.
    
      Pressly, for the motion.
    The rule is, that a witness \yill not be allowed to testify from a memorandum, unless it was made by the witness himself, and at the time the fact occurred, or was made in the usual course of business ; 2 Hill, 446; 3 T. R. 752; 38 Eng. C. L. R. 131; 1 Green. Ev. 487, note ; 6 Pick. 222. The paper used here was not made by the witness, but by the plaintiff, some time after the conversation was held. To allow such evidence would be dangerous. A witness of easy nature could easily be induced to sign such a paper; and then at the trial it would require great moral courage to say that it was incautiously signed, and was false.
    
      Yeadon, contra,
    cited 2 N. and M‘C. 331; 1 Mill, 344, 373, 423; 2 Phil. Ev. by C. and H. 750, note, 751, 755; and contended that the rule was, that the paper should be made at or about the time that the fact occurred. It was made here two weeks after — that was near enough. But it is said that the memorandum must be made by the witness. No authorities have been cited which prove this ; the cases in Mill prove the contrary. 2 Camp. 113. It is again said, that at any rate the memorandum must not be made by a party. The case in 29 Eng. C. L. R. 273, is an authority that he can. 1 Alab. R. 397. The memorandum in the hand writing of a party is competent, unless made post litem motam, or under such circumstances of suspicion as would induce the court to believe there was something wrong in it. In the case in 3 T. R. 752, the paper was drawn up post litem motam. 15 Ves. 381.
    The fairness of the transaction would not be questioned. The paper was made but a short time after the contract was entered into, while the things were fresh in the memory of the witnesses, and before the work was commenced — and of course before there could have been any dispute about the terms.
   Curia, per

Butler, J.

This is an extension of the principle laid down in the State vs. Rawls, referred to in the decision below, and is calculated, I fear, to give it a mischievous latitude. I shall presently advert to that case for the purpose of showing the material difference between it and the evidence before us.

There should be a liberal indulgence exercised in allowing a witness to refer to any memorandum, for the puppose of refreshing his memory, as to distinct facts not contained in the paper itself. In this way, the paper would be a mere aid to restore the recollection of other facts. Where the paper itself contains a state of facts, to which the witness is called to depose, in some cases the witness may be unable to recollect the facts themselves, but may say that the facts were true at the time they were inserted in the paper — not that such writing itself will always be admissible, but it must be introduced, that both parties may have a full opportunity to examine and cross examine, as to all the particulars contained in such paper. Greenleaf, 484. But there must be some limitation as to the time when the writing thus used to excite the recollection of facts, should be made. The general remark by law writers is, that the writing must have been made at the time of the fact in question, or recently afterwards. Perhaps no general rule can be laid down ; but thus much may be said, that the paper should contain not only what the writer was conscious of at the time the matter was noted, but should be one emanating from the witness himself, or made out under his immediate direction and of his own free will and accord. Where a witness had herself noted down the transactions from time to time as they occurred, but had requested the plaintiff’s solicitor to digest her notes into the form of a deposition, which she had af-terwards revised, corrected and transcribed, Lord Chancellor Hardwick suppressed the deposition, with strong expressions of indignation. The language of the Lord Chan, may not be uninstructive as to the principle we have under consideration. The case is quoted in 3d T. R. 753; “should the court connive at such proceedings as these, depositions would be really no belter than affidavits.” To be sure, he continued to say, “ a man may use papers at law in some cases, but I have known some judges (and I think I adhered chiefly to that rule myself) let them use only papers drawn up as the facts happened, and all other papers I have bid them put in their pockets ; and if any had been offered which had been drawn up by an attorney, I should have repremanded him severely.” Prof. Greenleaf quotes with approbation the law on this subject, as it is understood to exist in Scotland. The rule in the courts of that country is, that notes or memoranda, made up by the witness at the moment, or recently after the fact, may be looked to in order to refresh the memory; but if they were made up at the distance of weeks or months thereafter, and still more, if done at the recommendation of one of the parties, they are not admissible. Under this view of the law vindicating itself by its good sense and caution, the paper whose character we are now considering could not have been presented to the witnesses, even for the purpose of refreshing their memory— much less to sufferits contents to go indirectly to the jury. It was drawn up weeks after the transaction it purports to set forth, and was drawn up, too, by one of the parties to the suit; and-if not in view of his mota, it was to perpetuate evidence obtained ex parte, and for his own benefit. It was obtaining, by a prepared and leading examination, the statement of unsuspecting witnesses. I will not, now, go so far as to say, that the paper was not properly allowed to be used, for the purpose of reviving, in the minds of the witnesses, the facts contained in the paper. There seems to have been no objection made to it on that score. The objection is, that the witnesses were allowed to testify to a conversation, from a memorandum made by the plaintiff several weeks after the conversation; although the witnesses could not recollect the facts stated in the paper, after referring to it. The conclusion of the witnesses, as to-the truth of the paper, not verified by their memory at the time of the trial, went to the jury. And it is contended that this could be done, on the authority of the State vs. Rawls. That case goes thus far, to allow the writing itself to go to the jury,' in all cases where it is made by the witness, at the time of the fact, for the purpose of preserving the memory of it — although at the time of testifying he can recollect nothing further than that he accurately reduced the whole transaction to writing. The principle thus stated, with all its guards fairly maintained, is certainly unobjectionable. It has been adopted and approved by many eminent jurists in the United States. These are the guards against abusing the application of the principle in the case referred to. The facts must be noted at the time they are occurring, by a witness acting under the self-direction of his own mind, and for the purpose of perpetuating evidence. But where facts are noted by a party interested, and then suggested to witnesses, at the distance of weeks after they have transpired, what security would there be under the operation of such a practice? Alj the advantages of a cross-examination would be taken away, while all the mischief of leading questions would be introduced. All that an evasive or false witness would have to do, when he was under the ordeal of a cross-examination, would be to take refuge in his paper. And a witness of criminal facility would find his instructions in a paper of a friend, having all the characteristics of a leading examination. It is by no means certain that the witnesses before the court would have subscribed the paper prepared for them, if they had been subjected to the influence of an adversary examination ; they certified what they did not think at the time would be used as evidence at all. Certificates of the kind are given with too much facility, and when given, they sometimes control the conscience of witnesses, under the' influence of pride of opinion, or from some fear that a different statement might affect .their veracity. A man may impose on himself the restraints which should bind him, but the duress of third persons, obtained by artful address or unsuspected contrivance, should meet with no countenance from a court of justice, that should encourage the freedom and independence of witnesses. The paper which the witnesses had to refer to in the case before us, may have had a very different influence on different witnesses. Some it would have instructed — others it would have embarrassed — whilst others again would not have had the moral courage to contradict its statements, although they may have been satisfied that they were not altogether correct. Those who make their own statements, for the purpose of preserving and maintaining truth, may be trusted under the influence of their own conscience; but when third persons, and those who are interested, prepare the memorial, suspicion will assail, and justice should repudiate it.

We think that the witnesses should not have been allowed to testify, from the contents of the paper presented to them, when they could not speak from their memory, when refreshed by it. And this is the unanimous opinion of the court.'

The motion for a new trial is granted.

Richardson, O’Neall, Evans, Wardlaw and Frost, JJ. concurred.  