party." And again: "If you find that the witness Britt conspired to put up false testimony in the case, this would be a crime under the laws of the state. You may consider any temptations which are apparent from his testimony and the motives by which he is actuated." And again: "If you believe that the witness Britt willfully falsified in any single particular, you are at liberty to disregard his testimony altogether." And finally, on his own motion, the court charged the jury as follows: "You are the sole and exevery witness who has testified in this case. As to some of the witnesses, you have been told that you should receive their testimony with great caution. As to others, you have been instructed that you may consider any interest which they may have in the result of this case, and these instructions you should heed. But it is equally true that you are to give to the testimony of each and every witness who has been sworn upon his trial just so much or so little credit as you find it is entitled to. You are the sole judges of the credibility of the witnesses, as well as of the weight of the evidence in the case. It is apparent that the circuit judge fairly presented the question of the credibility of the witnesses to the jury, and that he gave all proper requests of respondent's counsel, and the jury could not have failed to understand that the question of the credibility of the witnesses was solely for them. The charge of the court, as a whole, was fair, and covered all the questions presented by the record. The respondent had a fair trial. We think his rights were fully protected, and that the conviction should be affirmed. testimony of the witnesses for the respondent | ing an innocent party instead of the guilty the jury had the right to take into consideration any interest which such witness might feel in the result of the suit, growing out of their relationship with respondent or otherwise, and give to the testimony of such witness or witnesses such weight as it was deemed entitled to under all the circumstances proved on the trial, and that in considering the testimony given by the respondent in his own behalf they might consider whether or not such testimony was affected in any manner by his interest in the result of the prosecution." We do not under-clusive judges of the credibility of each and stand that counsel contend that these instructions were not proper enough in themselves, but it is said: “A general charge that the jury should consider the interest of all witnesses would not have been objectionable; but when nothing is said about the people's witnesses, and attention is directed to the respondent and his witnesses, and the jury is told that their interest is an important consideration, the rights of the accused are not properly protected." But upon turning to the record we find that the respondent's counsel asked and the court gave numerous instructions relating to the question of the weight to be attached to the testimony of various witnesses for the prosecution. Respondent's thirtieth request, as follows, was given by the court: "In considering the question of identification, you may consider the fact that the witness Wagner swore to a complaint for the arrest of the respondent before he had seen him, and also upon his visit to Detroit the respondent was brought into his presence alone, in such a manner that there could be no doubt as to the person charged with the crime," etc. And again: "If the jury believe from the evidence that the witness Hammond did in fact indorse the draft in controversy in this case, you may consider this fact as bearing upon the likelihood of his identify Grant, J., did not sit; the other Justices concurred. CONNECTICUT SUPREME COURT OF ERRORS. Lewis F. CURTIS 0. Frederick H. BRADLEY. (........Conn.........) 1. An appeal does not lie in Connecticut on the ground that the evidence does not support the facts found by the court below but does support a state of fact which the court found not proved. 2. A written statement of relevant facts is admissible in evidence on testimony of a witness that he knew when it was made that NOTE.-The use as evidence of a writing proved, by witnesses to have been made with the knowledge of facts therein stated, but which they cannot now remember, is a matter upon which the above decision is an important one and on which it shows a conflict of authorities. No reconciling of the authorities is possible, and as the courts in which the question remains open have nearly equal authority to sustain their choice on either See also 36 L. R. A. 693. the facts were correctly stated therein but cannot now remember them. 3. Testimony of a witness that facts 4. It is proper to mark as an exhibit a side the reasonableness of the doctrine of the above case will probably draw them to its support. We believe it ought to become in reality what it has sometimes been called, the "American doctrine," and that such a document proved to have been correct when made should be recognized as an independent witness like the plaster cast referred to in the opinion above or like a monument of boundary. Plaintiff had grounds for exception in that, in connection with the oral testimony, the bills thus marked and designated were not themselves admitted as part of the res gesta. Etna Ins. Co. v. Weide, 76 U. S. 9 Wall. 677, 19 L. ed. 810; Abbott, Civil Trial Brief, water v. Roxbury, 54 Conn. 213. RESERVATION by the Superior Court for $ 396; Abbott, T.14 Ex. 321 321; Bridge Fairfield County for the opinion of the Supreme Court of Errors of a motion for a new trial after verdict in favor of plaintiff in an action brought to recover money which plaintiff had paid out for the erection of a building at the defendant's request upon defendant's land. Motion denied. The facts are stated in the opinion. Messrs. J. C. Chamberlain and Elbert O. Hull for defendant in support of the motion. Messrs. Allan W. Paige and George P. Carroll, for plaintiff, contra: By construction of law, which controls even the express intention and understanding of the parties, Plumb became agent for the plain tiff, either in the whole work of building or else for the act of receiving the pay for it. Whatever was the scope of the agency the plaintiff could sue for the money. Mechem, Agency, $$ 766, 769; 1 Am. & Eng. Encyclop. Law, p. 423; Huntington v. Knox, 7 Cush. 371; Sutton v. Mansfield, 47 Conn. 388. He who did something in reliance upon a promise, being he from whom "the consideration moves," is the proper person to sue in assumpsit. Hare, Cont. pp. 146-149; The History of Assumpsit, by J. B. James, 1 Harvard Law Rev. 1, 53; 1 Chitty, Cont. 11th Am. ed. pp. 74-78; 1 Parsons, Cont. pp. 466-468; Steene v. Aylesworth, 18 Conn. 252; Crocker v. Higgins, 7 Conn. 347; 3 Am. & Eng. Encyclop. Law, p. 863, note 5; Bishop, Cont. §§ 1219, 1220. An account stated is a mutual adjustment of everything and operates by way of estoppel. Anderson's Law Dict. 16, 17; Abbott, Trial Ev. 461: Abbott, Brief on Mode of Proving Facts, 53; 1 Am. & Eng. Encyclop. Law, pp. 110-120; Lockwood v. Thorne, 11 N. Y. 170, 62 Am. Dec. 81; Wiggins v. Burkman, 77 U. S. 10 Wall, 129, 19 L. ed. 885. If there had been previously any doubt, the effect of the transaction between the parties was to make the defendant debtor to the plaintiff in all events. 3 Am. & Eng. Encyclop. Law, p. 892, and note. As witnesses Curtis and Plumb, by means of certain bills and slips, refreshed their recollections as to the amounts incurred by the plaintiff and paid out by the plaintiff in accordance with the defendant's request, by way of labor and material bills on this house. These bills were not themselves introduced in evidence. The defendant had no ground of objection. Unless such evidence was used how could there ever be any recovery under the second common count? Republican F. Ins. Co. v. Weide, 81 U. S. 14 Wall. 375, 20 L. ed. 894; Erie Preserving Co. v. Miller, 52 Conn. 444, 52 Am. Rep. 607; Card v. Foot, 56 Conn. 369; State v. Jerome, 33 Conn. 266; Platt v. Hubinger, 58 Conn. 153; 1 Greenl. Ev. § 437. The amount may be allowed to be proved by testimony of a witness that he once knew it and told it correctly to plaintiff, and testimony of plaintiff to what amount the witness told him. Abbott, Civil Trial Brief, citing Shear v. Van Dyke, 10 Hun, 528; Abbott, Brief on Mode of Proving Facts, SS 397, 398, citing New Yorh v. Second Ave. R. Co. 102 N. Y. 572, 55 Am. Rep. 839; Payne v. Hodge, 7 Hun, 612, affirmed, 71 N. Y. 598; Adams v. People, 3 Hun, 654, affirmed, 63 N. Y. 621; Green v. Cawthorn, 15 N. C. 409. Hamersley, J., delivered the opinion of the court: In the summer of 1890 the plaintiff sold the defendant a building lot. In September of that year the defendant decided to have a house erected on the lot. It was then understood that one Simeon E. Plumb, a builder, should build the house, and that the plaintiff, a merchant, should advance the money for the cost of construction. The decision of this case depended on the actual terms of the agreement then made, the defendant subsequently claiming that his only agreement was with the plaintiff, and that by such agreement the plaintiff undertook to have the house built for the agreed price of $1,700. Plumb built the house under the directions of the defendant. The plaintiff paid to Plumb the amount of all bills for labor and materials as they came due. The house was finished in March, 1891, and the defendant accepted and occupied it. At the time the house was completed, Plumb and the plaintiff went over the labor and other bills, and the account of money paid for the cost of construction as charged on the plaintiff's ledger, and at the foot of that account Plumb wrote the following: "I have examined the above account, and find it correct. S. Plumb." The 14th of the same month, the plaintiff made a copy of this ledger account, and gave it to the defendant as the bill due from him to the plaintiff, in pursuance of their agreement. The defendant examined the bill, obtained the labor and material bills, made inquiries among the men who furnished materials whether the prices of the materials were correct, and found that they were correct. The defendant made no objection to the bill rendered as regards amount or price, except the claim that one item of 32 cents was charged twice; but the defendant did object to the total amount of the bill, and refused payment. Subsequently Plumb, as an original contractor, placed a mechanics' lien on the land upon which the house stood, to enforce payment for its construction, and brought an action against the defendant for the foreclosure of said lien. The plaintiff then brought an action against Plumb to recover the money paid for the cost of the house, and garnished the defendant as the debtor of Plumb. Subsequently, Plumb as- | carpenter work for the house, and have the signed to the plaintiff his interest in said bills for the same charged to the plaintiff. mechanics' lien, and in the sum due from The plaintiff, at the request of the defendthe defendant to Plumb for the construction ant, agreed to be responsible and liable for of the house; and the plaintiff then withdrew all such materials and other work as Plumb his action against Plumb, and became sub- should order for the house, and advance the stituted as party plaintiff in the action to money for the payment of them, and also to foreclose said lien. The action of foreclosure advance money to Plumb from time to time was tried, and in December, 1892, judgment as he might require to meet his weekly pay was rendered in favor of Bradley, the present rolls. The defendant agreed that on the comdefendant. By the record of the judgment, pletion of the house, in consideration of the it appeared that the court found that the lien money thus to be advanced by the plaintiff had been made and recorded, and had been for the building of said house, and in conassigned to the plaintiff, who became sole sideration of the building of the same, he owner, and was the actual and bona fide would repay the plaintiff the total amount holder and owner of the chose in action; of the moneys so paid out by the plaintiff." but that the contract for the building of the Upon these facts, the court rendered judg house had not been made with Simeon ment that the plaintiff recover of the defendPlumb, as alleged in the complaint; and ant the sum of $2,974.51, such sum being, that neither he nor the plaintiff, as his as- as the court found, the total amount paid by signee, was entitled to foreclose the same. the plaintiff in pursuance of that agreement, After this judgment was rendered, the plain-with interest. From this judgment the detiff brought the present action. fendant appeals. The complaint follows the form called the 'common counts," authorized for the commencement of an action. The counts relied on are those for money paid, goods sold and delivered, goods bargained and sold, and work performed and materials furnished, under which counts a bill of particulars was filed, detailing each item that the plaintiff claimed entered into the cost of the house, and also the count for money due on account stated, under which count the bill rendered the defendant in March, 1891, was filed as the bill of particulars. The answer is a general denial. Upon the trial there appears to have been no contest as to the fact that the plain tiff had paid for the construction of the house, and no serious contest as to the accuracy of his account as rendered. The claim of the defendant appears to have been in the alternative, either the defendant's contract was made with the plaintiff for a fixed price, or the contract was made only with Plumb, and therefore the plaintiff has no cause of action against the defendant; the position of the defendant under the latter claim, which was the one mainly relied on in argument, being that, having induced the court in the former action to hold that the contract was not with Plumb, he had escaped all liability on that ground, and, if he now induced the court to hold that the contract was made with Plumb, he would escape all liability whatever, and secure his house without any payment, obtaining judicial sanction for the practical theft, under two contradictory judgments. So far as the record shows, the main question at issue was: What agreement, if any, had the defendant made with the plaintiff? It was not claimed on the trial that any ques tion of law was involved in the determination of this issue, and the court found from the evidence that there was an agreement between the plaintiff, Plumb, and the defendant that Plumb should perform work in erecting a house for the defendant on this lot. Plumb, as carpenter, was to work by the day, under the defendant's directions, at twenty-five cents an hour, and was to employ other carpenters at the same rate. He was also to order materials and work other than The appeal contains two distinct grounds for an appeal from the judgment: 1. Because the evidence introduced on the trial, and printed in the record, does not support the facts found by the court below, but does support a different state of facts claimed by the defendant, and which the court below found were not proved by the evidence. The law does not authorize an appeal from the judgment of a trial court for such reasons, and this court will not take jurisdiction of such appeal. Styles v. Tyler, 64 Conn. 432. The record discloses no reason for the correction of the appeal on the ground that the finding of facts does not fairly present the questions of law actually raised and decided. 2. Because the defendant is entitled to a new trial on account of errors alleged to have been made in the admission of evidence. Under this ground of appeal four errors are assigned: First. The plaintiff offered in evidence certain slips of paper, testifying that Plumb came to the store each Saturday during the building of the house, and gave him the names of the men employed by him during the week, and their time; that the plaintiff wrote down at the time, in the presence of Plumb, on these slips, these names, the hours of time, the amount due each man, the total amount due, and the date; that he paid Plumb the total amount of money called for by each slip, and filed the slip on a spindle; and that he had no personal knowledge of the facts so stated to him by Plumb, and so written by him on the slips, but that he made such memoranda correctly as Plumb then stated the facts to be. Plumb had already testified that he had employed these men on the Bradley house, and that the slips of paper were correct statements of the facts of each case as far as he could recollect; that he knew them to be correct when made; and that he had given the names, hours of time, and the amounts to the plaintiff, in the manner that the plaintiff subsequently testified; and that, after deducting his own wages, he paid each man the amount due him. This evidence was offered to prove that the plaintiff had incurred liabilities and paid out moneys upon the order of and as required by Plumb, as agent for the defendant, in the manner agreed upon by the parties, and to prove the correctness of the items and prices. The defendant objected to the introduction of these slips, and to the testimony of the plaintiff and of Plumb as shown. The court admitted the slips, not as themselves evidence apart from the oral testimony, but as memoranda made at the time and in the manner shown, and to be used by the witnesses Plumb and Curtis in the manner indicated. the witnesses reading the contents of the slips, and admitted the testimony of Curtis and Plumb in connection with them as stated. Said slips were marked as exhibits. the manner shown, the witnesses reading their contents as marked, and their value depending upon the oral testimony accompanying them, and admitted the testimony of the plaintiff and Plumb as stated above. There is no error in the above rulings. The court found that Plumb was authorized by the defendant to perform and to employ the labor on the house, and present his weekly pay rolls to the plaintiff; also, to order other work and materials for the house, and present the bills for such materials and work to the plaintiff; that the plaintiff was authorized by the defendant to pay to Plumb such weekly pay rolls, and to pay such bills for materials and work so ordered by Plumb, and charge the amounts of the pay rolls and bills so paid by him against the defendant. The court was bound to admit the testimony of the plaintiff and of Plumb as to the liabilities incurred and the payments made under such authority. The use of the slips and bills made at the time of the transaction, and known to the witnesses to have been correctly made, as memoranda to be used by them in connection with their oral testimony, comes within the settled rules of evidence. "A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the trans Second. The plaintiff offered in evidence certain bills, testifying that they were rendered him from time to time, and that he went over the bills with Plumb, in the defendant's absence, at various times as they came due, while the house was building or upon its completion; that some of these bills were exclusively for materials and work for the defendant Bradley's house, and some contained other items not for that house, and Plumb picked out the items of material and work that went into the Bradley house, and stated that the items and prices were correct; that when the designation "Bradley house" was not in the body of the bill when ren-action concerning which he is questioned, dered, as it was in many bills, he (the plaintiff) wrote it in at the time in Plumb's presence, and correctly as given to him, and that he also made the check marks appearing on the bills when offered in evidence, to indicate Plumb's assent to the correctness of the items and prices; that these check marks were made in Plumb's presence, and correctly, as then stated by him to, the plaintiff and that he could not recall those items or prices without referring to the bills and memoranda made on them at the time. Plumb had already testified that he had given the orders to the persons thus rendering bills to the plaintiff, and that he had gone over these bills in the manner that the plaintiff testified, and that he had stated to the plaintiff that the items and prices as picked out were correct, and that these items represented materials and labor that had gone into the house, and that he had no recollection of the details of those items independently of the bills and the memoranda upon them, which he had seen at the time, and which he then knew to be correct. This evidence was offered to prove that the plaintiff had incurred liabilities and paid out money as required and ordered by Plumb as agent for the defendant, in the manner agreed by the parties, the correctness of the items and prices, and that the materials went into the Bradley house. The defendant objected to the introduction of the bills, and to the testimony of the plaintiff and of Plumb as above set forth. The court did not admit the bills, marked and designated as stated, as themselves evi dence apart from the oral testimony, but admitted them as memoranda made or seen by witnesses who at the time either had knowledge of their truth or made them upon the statements of one who had such knowledge at the time, and to be used by witnesses in or so soon afterwards that the judge considers it likely that the transaction was at that time fresh in his memory. The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if, when he read it, he knew it to be correct." Stephen, Dig. Ev. art. 136. "How far papers not evidence per se, but proved to have been true statements of fact at the time they were made, are admissible in connection with the testimony of a witness who made them, has been a frequent subject of inquiry, and it has many times been decided that they are to be received. And why should they not be? Quantities and values are retained in the memory with great difficulty. If, at a time when an entry of aggregate quantities or values was made, the witness knew it was correct, it is hard to see why it is not at least as reliable as the memory of the witness. Republican F. Ins. Co. v. Weide, 81 U. S. 14 Wall. 380, 20 L. ed. 895; Bridgewater v. Roxbury, 54 Conn. 213. The defendant also claims error in marking the slips as exhibits, on the ground that, if they might properly be read by the witness, they are not themselves admissible as evidence. Courts in other jurisdictions have made different rulings as to the admissibility of such a writing. In England it is excluded. In Massachusetts and some other states it is excluded. Costello v. Crowell, 133 Mass. 355; Morrison v. Chapin, 97 Mass. 72; Dugan v. Mahoney, 11 Allen, 572. In Vermont it seems to be treated as evidence. Lapham v. Kelly, 35 Vt. 195. In New York and some other states the writing is admitted as evidence. Guy v. Mead, 22 N. Y. 462, 465: New York v. Second Are. R. Co. 102 N. Y. 572, 55 Am. Rep. 839; Haven v. Wendell 11 N. H. 112; Kelsea v. Fletcher, 48 N. H. We 282; State v. Rawls, 2 Nott & McC. 331; | cludes every tangible object capable of mak. Pearson v. Wightman, 1 Mill, Const. 336, 12 ing a truthful statement, such evidence being Am. Dec. 636; Owens v. State, 67 Md. 307; roughly classified as documentary evidence. Anchor Mill. Co. v. Walsh, 108 Mo. 277. In In oral evidence the witness is the man who the federal jurisdiction the question is still speaks; in documentary evidence the witness open. In Republican F. Ins. Co. v. Weide, is the thing that speaks. In either case the supra, the court indicates the admissibility witness must be competent,-i. e. must be of the evidence; but the opinion in Bates v. deemed competent to make a truthful statePreble, 151 U. S. 155, 38 L. ed. 109, shows ment. And in either case the competency of that the court is not committed to the gen- the witness must be proved before the evieral doctrine that such memoranda are ad- dence is admitted; the difference being that missible for any other purpose than to refresh in oral evidence the competency is proved the memory of the witness. We do not at- by a legal presumption, and in documentary tempt to cite all the cases bearing on the evidence the competency must be proved by question, or to weigh the conflicting author- actual testimony, and the further difference ities; for we are satisfied, on principle, that that in oral evidence the credit of the witthe evidence in question is admissible. The ness is tested by his own cross-examination, discussion would be endless, unless confined while in documentary evidence the credit of to the precise question presented, which may the witness is tested by the cross-examinabe stated as follows: The litigated question tion of those who must be called to prove is. Did the plaintiff pay to the agent of the its competency. defendant a certain sum on a certain date, as wages due for labor performed by a certain man employed by the agent? The plaintiff and the agent testify that a sum was paid for such purpose; that at the time of payment the agent gave to the plaintiff the exact amount due, and the name of the employé entitled to the same, and the plaintiff then, in the presence of the agent, wrote on a piece of paper the date, the amount, and the name; that these items, as then written by the plaintiff, were correct; that the paper produced in court is the identical paper then written upon by the plaintiff, and since un changed; that they have no recollection, either before or after examining the paper, of the date, the amount, or the name. Is that paper admissible as evidence? All courts concur in holding that the witness may read the statement of such paper to the jury, and that the jury may draw the conclusion that the statement so read to them is a true statement of the facts; but some courts hold that the paper is not evidence. It seems to us to be pressing the use of a legal fiction too far for a court to permit the statement made by such paper to be read as evidence, while holding that the law forbids the admission as evidence of the paper which is the original and only proof of the statement admitted. In other words, it would seem as if, in admitting the paper to be so read, the court, of necessity, admitted the paper as evidence, and therefore, by the concurrent authority of all courts, the paper is itself admissible. But, waiving the question whether, in admitting such paper to be read, the courts have gone so far as to make the denial of its admissibility no longer tenable, we will deal with the matter as if wholly undecided. Is the paper itself admissible as evidence? Its admissibility, in the first instance, depends on its relevancy. Of this there can be no doubt. Being relevant, it must be admitted, unless excluded under some legal principle or rule of public policy which forbids the admission of certain classes of evidence, no matter how relevant and material. It cannot be said that the paper is not capable in its nature of being treated as competent evidence. Legal evidence is not confined to the human voice or oral testimony; it in The competency of this paper is clearly established by the testimony, and it would seem to follow, of necessity, that it should be admitted on the same ground that any relevant and material documentary evidence, proved to be competent, is admitted. The doubt has arisen from the complication of the admissibility of such paper with the right of a witness to refresh his memory. In fact, the two questions may be entirely distinct. The right of a witness to refresh his memory is a settled and necessary rule of evidence. The application of that rule is often difficult, involving delicate distinctions. are not called upon now to draw the line which limits the right of a witness to the use of such aids as, under the subtle laws of association, serve to refresh his memory. All courts recognize that right, and rightly hold that the thing used to refresh the memory is not, by reason of such use, itself admissible as evidence. When, in the application of the rule, a document like the one in question was presented to the witness, and absolutely failed to refresh his memory, its exclusion as a means of refreshing his memory became imperative; but the evidence of the document was so clearly essential to a fair and just trial that its use in some form seemed also imperative. Instead of treating the paper as itself competent documentary evidence, resort was had to a palpable fiction. The paper is read by the witness, and the knowledge the witness once had of the facts stated by the paper is imputed to him as still existing, and the statement of the paper is received as the testimony of the witness, and the paper itself, the only witness capable of making the statement, is excluded. The use of such a fiction in the administration of justice can rarely, if ever, be justified. It is certainly uncalled for in this instance. The princi ples of law invoked to justify the fiction are amply sufficient to support, indeed to demand, the admission of the document as evidence. There is no occasion to sacrifice truth in order to secure justice. As regards its admissibility as evidence, there is no substantial difference between this paper and any other tangible object capable of making a truthful and relevant statement. It is true that a writing may be a mere declaration, |