Vastbinder v. Metcalf

ORMOND, J. The bill of exceptions is so vague and un--certain, that it is difficult to say what point was intended to be presented in this Court. It is clear, however, that the Court erred in permitting the written memorandum of the contract to go to the jury as evidence. It is obviously an unfinished contract of the parties, 'which as it was never executed by either, is not binding on either, and was, therefore, no evidence of the contract between the parties. A witness who has made a memorandum of facts, may refresh his memory by referring to it; and if by that means he obtains a recollection of the facts themselves, as distinct from the memorandum, his statement is evidence. 1 Starkie on Ev. 127. For this purpose only, could this paper have been looked to by the witness, but it was hot evidence for any purpose whatever, to go before the jury. The charge of the Court in reference to the slaves, as an abstract legal proposition, is correct; and unless the contrary be shown, we must presume that the evidence authorised the charge to be given. For the error of the Court in permitting the unfinished contract to be given in evidence to the jury, the judgment must be reversed, and the cause remanded.