State Bank v. Brewer

Laud, J. 1 In the ordinary course of plaintiff’s business, memoranda were made on slips of paper at the time of the transactions, and from these slips its books were made up. Hall, the assistant cashier, testified that he made the entries in the books from the slips at the time of the transactions, and knew them to be correct. He was then permitted, over the objection of the defendant, to refresh his memory therefrom, and testify. On cross-examination he stated that he was simply testifying from the record, and not from memory. The ruling of the court, when made, was correct. If it appeared on cross-examination that the witness, after refreshing his memory, could not recall the matters referred to, the defendant might properly have moved that the evidence already given be stricken from the record. 5 II. The slips relating to the transactions concerning which evidence was introduced, were marked exhibits, and thereafter the abstract shows that “plaintiffs offer in evidence Exhibits 5, 6, 7, and 8,” and the objection thereto was overruled. Whether these slips were ever introduced in evidence, or read to the jury, does not appear from the record, and therefore the question of their admissibility as evidence is not raised. ' ' [578] 3 III. Complaint is made of the action of the court in permitting the jury to take to their room the notes on which the action was brought. Admitting the execution of an instrument in the pleadings does not authorize the court to allow the jury to take it to their room, unless it has been introduced in evidence. It is not error, however, for the jury to take with them the ‘pleadings, and it is difficult to understand how the examination of the original instruments by the jury, instead of the copies contained in the pleadings, would be prejudicial to either party. In any event, the defendant in this action was not prejudiced. IY. Exception is taken to some of the instructions. They are considered in the argument as abstract propositions of law, and not in connection with the facts in the case. As applied to the evidence, they clearly and fully state the law. — Affirmed.