Folsom v. Chapman , 59 Me. 194 ( 1871 )

Appleton, C. J.

At a former trial of this cause, Ephraim Folsom, the plaintiff’s intestate, was a witness. The counsel for the defendant introduced his testimony as then given. Having introduced it, he offered the defendant as a witness to contradict it, but the court ruled his testimony inadmissible.

This was correct. The testimony of Folsom at a former trial was offered by the defendant. Having offered it, ho did not thereby acquire the right to contradict it. It is sufficient, that the evidence was not in the form of a deposition. If it were, it may well be doubted whether the adverse party could, within R. S. 1871, c. 82, § 87, offer the deposition of his deceased opponent for the purpose of rendering his own testimony admissible when otherwise it would not' be.

The defendant does not bring himself within any of the exceptions in § 87. Kelton v. Hill, 59 Maine.

The paper containing the charges of milk, the case specially finds, was placed in the witness’ hands to refresh her memory. It was not offered as evidence to the jury by the plaintiff’s counsel, nor used as such. The evidence of the defendant 'was not, therefore, admissible under fourth case under § 87, which is as follows; “ In an action by an executor, administrator, or other legal representative of a deceased person, in which his account books or other memoranda are used as evidence on either side, the other party may testify in relation thereto.” The mere handing a paper to refresh the memory of a witness is not using it “ as evidence on either side ” so as to authorize the other party to testify in relation thereto. The books or memoranda must be used as specific pieces of evidence, and must be submitted to the court or jury as and for evidence. Exceptions overruled.

Kent, Walton, Barrows, Danforth, and Tapley, JJ., concurred.