
    Smith v. Randall, executor, appellant.
    
      Evidence —memorandum — counter-claim — services.
    
    Where a witness, upon looking at a memorandum not made by him of certain items of account, was able to remember and testify to the sale of the items mentioned independent of the memorandum ; held, that the witness might refresh his memory in that manner, but could not depend upon the memorandum for either quantity or price of the articles sold.
    In an action against an executor upon contract services by defendant’s testator in aiding plaintiff to procure a writ of habeas corpus for his (plaintiff’s) release from confinement at his request, held allowable as a counter-claim.
    Appeal from a judgment entered upon the report of a referee. The action was brought by James J. Smith against Samuel B. Randall as executor, etc., of James Smith, father of plaintiff, for goods sold to and work done for deceased.
    
      S. S. Morgan, for appellant.
    
      C. D. Prescott, for respondent.
   Mullin, P. J.

The only material points passed upon in the opinion are given in the head-note, and a publication in full is not believed necessary.

New trial ordered.  