MAXWELL'S EXECUTORS
v.
WILKINSON & OTHERS
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In a dispute over whether a protest had been filed with a customs collector, the Supreme Court held that a memorandum could not be used to refresh a witness's testimony where the memorandum was made twenty months after the transaction and the witness had no independent recollection of the facts. The Court established that memoranda used to refresh memory must be made contemporaneously with or shortly after the transaction while the events were fresh in the witness's mind, not months later based on other lost documents.
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Mr. Justice Gray delivered the opinion of the court. He recited the facts in the foregoing language, and continued :
The witness, according to his own'testimony, had no recollection, either independently of the memoranda, or assisted' by them, that he had filed a protest with the collector; did not know when he made the memorandum in pencil; made the memorandum in ink twenty months after the transaction, from the memorandum in pencil, and probably other memoranda, since destroyed and not produced, nor their contents proved; and his testimony that he did file the protest was based exclusively .upon his having signed a statement to that effect twenty months afterwards, and upon his habit never to sign a statement unless it was true.
Memoranda are not competent evidence by reason of having been made in the regular course of business, unless contemporaneous with the transaction to which they relate. Nicholls v. Webb, 8 Wheat. 326, 337; Insurance Co. v. Weide, 9 Wall. 677, and 14 Wall. 375; Chaffee v. United States, 18 Wall. 516.
It is well settled that memoranda are inadmissible to refresh the memory of a witness, unless reduced to writing at or shortly after the time of the transaction, and while it must have been fresh in his memory. The memorandum must have been “presently committed to writing,” Lord Holt in Sandwell v. Sandwell, Comb. 445; S. C. Holt, 295; “ while the occurrences mentioned in it were recent, and fresh in his recollection,” Lord Ellenborough in Burrough v. Martin, 2 Camp. 112; “ written contemporaneously with the transaction,” Chief Justice Tindal in Steinkeller v. Newton, 9 Car. & P. 313; or “ contemporaneously, or nearly so with the facts deposed to,” Chief Justice Wilde (afterwards Lord Chancellor Truro) in Whitfield v. Aland, 2 Car. & K. 1015. See also Burton v. Plummer, 2 Ad. & El. 341; S. C. 4 Nev. & Man. 315; Wood v. Cooper, 1 Car. & K. 645; Morrison v. Chapin, 97 Mass. 72, 77; Spring Garden Ins. Co. v. Evans, 15 Maryland, 54.
The reasons for limiting the time within which the memorandum must have been made are, to say the least, quite as strong when the witness, after reading it, has no '•recollection of the facts stated in it, but testifies to the truth of those facts only because of his confidence that he must have known them to be true -when he signed the memorandum. Halsey v. Sinsebaugh, 15 N. Y. 485; Marcly v. Shults, 29 N. Y. 346, 355; State v. Rawls, 2 Nott & McCord, 331; O'Neall v. Walton, 1 Rich. 234.
In any view of the case, therefore, the' copy of the protest was erroneously admitted, because the memorandum in ink, which was tfie only one on which the witness relied, was made long after the transaction which it purported to state; .and its admission requires that the
Judgment be reversed, amd a new trial ordered.
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Putnam v. United States, 162 U.S. 687 (U.S. 1896)…the occurrence, when the facts were fresh in the mind of the witness, that he can with safety be allowed to recur to them in order to remove any weakening of memory on bis part, which may have supervened from lapse of time. In Maxwell v. Wilkinson, 113 U. S. 656, 658, speaking through Mr. Justice Gray, the court said: “ Memoranda are not competent evidence by reason of having been made in the regular course of business, unless contemporaneous with the transaction to which they relate. Nicholls v. Webb, 8 W…
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United States v. Riccardi, 174 F.2d 883 (3d Cir. 1949)…tiorari denied 270 U.S. 618, 48 S.Ct. 213, 72 L.Ed. 734. Generally, see 3 Wigmore on Evidence, Sections 744-755 (3d ed. 1940). Exemplary are: Putnam v. United States, 1896, 102 U.S. 687, 16 S.Ct. 923, 40 L. Ed. 1118, and Parsons v. Wilkinson, 1885, 113 U.S. 656, 5 S.Ct. 691, 28 L.Ed. 1037, (time when made); Shapiro v. Pennsylvania R. Co., supra note 10, and Jewett v. United States, 9 Cir., 1926, 15 F. 2d 955, 956 (necessity for original); New York & Colorado Mining Syndicate v. Fraser, 1889, 130 U.S. 611,…
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Bates v. Preble, 151 U.S. 149 (U.S. 1894)…round that they were entries made in the usual course of business, since from the report of a similar case (9 Wall. 677) this seems to have been the character of the entries. See also Chaffee v. United States, 18 Wall. 516. In Maxwell v. Wilkinson, 113 U. S. 656, a memorandum of a transaction which took place twenty months before its date, and which the person who made the memorandum testified that he had no recollection of, but knew it took place because he had so stated in the memorandum, and because his…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Chaffee & Co. v. United States, 18 Wall. 516 (U.S. 1873)
- Ins. Cos. v. Weides, 14 Wall. 375 (U.S. 1871)
- Nicholls v. Webb, 8 Wheat. 326 (U.S. 1823)
- Ins. Co. v. Weide, 9 Wall. 677 (U.S. 1869)