Robinson v. Gilman , 43 N.H. 295 ( 1861 )

Bartlett, J.

As Mr. "Wood was competent to testify, evidence of his statements was inadmissible. Tenney v. Evans, 14 N. H. 347. The circumstance that he had forgotten the facts to which he formerly testified does not render his former testimony competent. Drayton v. Wells, 1 N. & McC. 409, cited in 1 Gr. Ev., sec. 163, n, and 1 C. & H’s Notes to Phill. Ev. 329. The failure of the recollection of a witness may sometimes work a hardship to a party, but it is not one peculiar to a case like the present. We do not think the exception to the general rule has been extended in this State so far as to permit the reception of such evidence. We see no stronger reason for admitting the former testimony of Mr. Wood than existed in Haywood v. Barron, 38 N. H. 371, for receiving a deposition given in the cause by a witness, who, on being called to the stand, refused to testify, upon the ground that her answers would tend to criminate herself.

The defendant claims that Mr. Sullivan’s notes were admissible in connection with Mr. Wood’s testimony, upon the principle of Haven v. Wendell, 11 N. H. 112. In this view the fact that the statements thus written down were made under oath is quite immaterial. The contemporaneous memorandum is received upon the witness’ present testimony as to his former knowledge of its accuracy. The present case stands no better than if the witness had formerly, when the facts were fresh in his recollection, made a verbal statement to Mr. Sullivan, which the latter had then reduced to writing. We think such a writing could not be received to establish the facts stated in it, upon the testimony of the writer that he drew up the statement as made, and of the narrator that what he then stated was true, though he now had no recollection of the facts as they existed or were stated. Clute v. Small, 17 Wend. 238. Mr. Sullivan’s notes were not made under the direction of the witness or with his concurrence ; he had no power to control or examine them ; he did not examine them at the time or take any part in making them ; they were not the witness’ or Mr. Sullivan’s memorandum of the transaction which they were offered to prove ; and therefore we need not inquire if they were made sufficiently near the time of that transaction. 2 C. & H’s Notes to Phill. Ev., 733, 457; 1 Gr. Ev., secs. 436, 437; Bradley v. Davis, 26 Me. 54. These notes were merely Mr. Sullivan’s memorandum of the witness’ former testimony, and as such inadmissible.

Mr. Wood’s testimony that his former evidence was correct adds nothing to the ordinary case, for evidence is usually given under oath as correct, and the witness merely testifies here that he gave his former evidence as he was then sworn to do. What Mr. Wood might have previously testified or said as to the matters in controversy in the present case was entirely immaterial. Seavey v. Dearborn, 19 N. H. 355.

The verdict must, therefore, be set aside, and a new trial granted.