
    McKivitt v. Cone.
    1. Evidence: cross-examination. For the purpose of eliciting truth great latitude is allowed in tlie cross-examination of witnesses; and whatever is pertinent to the direct examination and furnishes the means of determining the knowledge, honesty or bias of the witness is proper.
    2. —— account to refresh memory. Where a witness uses an account book to refresh his memory as to certain items of his account, the other party is entitled, on cross-examination, to an inspection of the book thus referred to.
    3. -landlord and tenant. In a suit between landlord and tenant it is not admissible on the part of the former for the purpose of establishing that the lease was made with certain stipulations, for him to show that he had that year rented premises to another tenant with like stipulations, and that that was his rule with all his tenants.
    
      Appeal from, Muscatine Circuit Court.
    
    Wednesday, January 25.
    Action upon a promissory note, and an account of forty-one items for work and labor, etc., and damages done by animals trespassing upon crops raised by plaintiff on shares upon land leased of defendant.
    Answer, denial, set-off, and that the lease provided that landlord and tenant should each assume the risk of damages from trespassing animals to his respective share of crops. Trial by jury. Verdict and judgment for plaintiff for $417.63
    Defendant appeals. The material facts are stated in the opinion.
    
      JEtiohmam, <& Ca/rskadda/n for the appellant.
    
      Cloud <& Broomhall for the appellee.
   Day, J.

I. Upon the trial of the cause the plaintiff as a witness in his own behalf,' for the purpose of refreshing his memory, referred to a book in which he % , , ,,, stated he had entered a part, but not all the items charged in his account. On cross-examination plaintiff gave at length the character and kind of work, dates, etc., from the book. Counsel for defendant then asked plaintiff whether item forty-one and divers other items of his account, were found in said book. To this the counsel for plaintiff objected, unless tbe defendant proposed to offer the book in evidence, for tbe reason that “ tbe book was not in evidence, and plaintiff bad been asked no question concerning it except as be referred to it to refresh bis memory.” Tbe sustaining of tbis objection is tbe first error assigned. Tbe witness should have been allowed to answer tbe question. Tbe object of judicial investigations is to discover and elicit truth, not to suppress it. In furtherance of tbis end, great latitude is properly allowed in cross-examinations. "Whatever is pertinent to tbe direct examination, and furnishes tbe means of determining tbe knowledge, tbe honesty, tbe intelligence or tbe bias of tbe witness should always be laid before tbe jury. In judicial determinations, where facts are to be established by moral evidence, tbe slightest drcumstances are always important, and often sufficient to turn tbe scales of justices Tbe witness here bad stated, that tbe book did not contain all tbe items of account. He bad also frequently referred to it during bis testimony for tbe purpose of refreshing bis memory. Tbe defendant bad a right, upon cross-examination, to ascertain tbe extent to which tbe witness testified from independent recollection, and bow far bis memory was refreshed by tbe book. Tbe effect of such testimony, probably, would have been but slight; but however inconsiderable its weight, it should have gone to tbe jury, and been allowed such effect as tbe circumstances warranted. Whether there be any evidence is a question for tbe court, but bow far tbe evidence shall go toward establishing tbe fact upon which it bears belongs to the domain of tbe jury.

II. Tbe plaintiff having testified as before stated, tbe defendant asked to be permitted to examine, tbe book to see if it contained tbe items of plaintiff’s accotlIlt Tpe piaintiff interposed the same objection as before, which was sustained. Tbis ruling of tbe court is assigned as tbe second error. We are of opinion that the defendant should not have been denied the privilege of an examination of the book. In Green-leaf upon Evidence, section 437, it is said that where the writing is used only for the purpose of assisting the memory of the witness, it does not seem necessary that it should be produced in court, though its absence may afford matter of observation to the jury. Yet its absence could hardly afford matter of just observation if the other party would have no right to examine it when produced in court. In the other class of cases where the witness recollects having seen the writing before and remembers that, at the time he saw it, he knew the contents to be correct, though he has, at the time it is produced, no independent recollection of the facts mentioned in it, the writing itself must he %>rodMced in court in order that the other party may cross-examine. In support of the foregoing views, see Gowen & Hill’s notes to Phillips on evidence, vol. 4, part II, p. 733, and cases cited.

III. Upon the trial the defendant and her husband testified that, in renting the demised premises to plaintiff, it was expressly stipulated that plaintiff should run the risk of all damages by trespassing animals to his crops, and that this was defendant’s invariable rule with all her tenants. This stipulation being denied by plaintiff, the defendant offered a witness to prove that he rented land of defendant in the same inclosure, in the same year, with the same stipulations, and that this was defendant’s rule with all of her tenants. The plaintiff’s objection to this testimony was sustained, and in this ruling lies the remaining alleged error. This evidence, in our opinion, was properly excluded. The jury could not legally infer that the defendant’s contract with plaintiff was the same as that with her other tenants.

For the errors before named, the judgment of the court is reversed, and the cause remanded.

Reversed.  