Thomas Coffin vs. Joseph Vincent & another, 12 Cush. 98

Merrick, J. Several objections were taken by the plaintiff to the ruling of the presiding judge at the trial in the court of common pleas. 1. It is insisted that the permission given to the witness, Thomas B. Fields, to inspect the form, produced by him for the purpose of refreshing his memory, was irregular and erroneous. And it is contended that the true rule of law on this subject restricts a witness to the examination of such papers merely as were written by himself, or by some other person with his knowledge, at or near the time when the facts recited in it occurred.

But this narrow limitation is neither warranted by the authorities referred to, nor consistent with the reason upon which the practice is allowed. In 1 Greenleaf on Evidence, § 436, it is said, that it seems not to be necessary that the paper should have been made by the witness himself, nor that it should be an original writing; but it is sufficient if the witness recollects that he saw the paper while the facts were fresh in his recollection, and remembers that he then knew that the particulars therein mentioned were correctly stated. And in Henry v.

Lee, 2 Chit. 124, it was determined that “ if a witness, in looking upon any document, can so far refresh his memory as to recollect a circumstance, he may inspect it; and it makes no difference that it was not written by himself; for it is his recollection, and not the memorandum that is the evidence.” The form, to the inspection of which the witness in the present case was permitted to resort, comes very clearly within the terms prescribed.

It was in his possession, and he was well acquainted with its contents when he read the notice posted up, and he then knew that the contents of the one corresponded with those of the other. He originally procured it as a guide to himself in the discharge of his official duty, and it must from that circumstance have been well adapted to assist Ms memory in relation to details embraced in it, which had partially escaped from his recollection. He was, therefore, very properly permitted by the presiding judge to use it for that purpose. 2.

The plaintiff next objects that the jury should have been instructed that the burden of proof was on the defendants to show that the notice posted up by them contained a statement of some particular specified cause, known to the law, for which each animal impounded was taken up. There seems, however, to be no ground for this objection, because it appears from the bill of exceptions that the instructions given were substantially to that effect.

The jury were directed that before they could find a verdict for the defendants, they must be satisfied that the notice of the impounding was posted up within twenty-four hours after the animals were put into the pound, and that it contained a statement of the time, place, and cause thereof. Such direction necessarily implied that these facts, essential to their defence and asserted by them, were to be proved by the defendants ; and was not less intelligible, and scarcely less direct, than if it had been said in express terms that the law imposed on them the burden of proof.

Besides; if the plaintiff supposed that any peculiarity in the trial, or in any of its circumstances, made it expedient or desirable that a more precise and exact statement of the obligation resting on the defendants in this particular should have been given to the jury, the suggestion ought to have been made to the court at the time. But as the general instruction was correct, and as it does not appear that any more definite statement was requested, the objection now made ought not to be allowed. 3.

But the plaintiff contends that he is entitled to maintain this action against the defendants, because, even if in all other respects their proceedings were strictly correct and justifiable, the sheep taken up by them were neither restored to him nor sold according to law. It is no doubt true, that any failure on their part to act in entire conformity to the provisions of the statute, and to do all that it required, would have been an abuse of the authority conferred on them by the law, and would have made them liable as trespassers ab initio. Smith v. Gates, 21 Pick. 55.

But if all which they did was allowed and authorized by the statute, and if they omitted nothing which they could possibly have done, there could have been no failure on their part, and of course no abuse of official authority. And such appear very clearly to have been the facts. The sheep were legally taken up and regularly dealt with until they were delivered into the town-pound.

As soon as that was done, the custody of them passed to the pound-keeper, and from thence until the arrival of the day, fixed by precise and positive provisions of law when a further official duty was to be performed by the defendants, they had no care of, and could exercise no eon-tool over the animals, and would not have been responsible for them if they had all perished in the pound for want of necessary care or of adequate supplies of food. Rev. Sts. c. 113, § 1; Pickard v. Howe, 12 Met. 198.

During this intermediate period, while the defendants were neither charged with their control or superintendence, nor had any right to interfere in the management of the place where they were confined, and were guilty of no default or neglect respecting them, the sheep were rescued or escaped from the custody of the pound-keeper; so that when the day arrived on which the defendants might otherwise have legally proceeded to cause their sale, they were not to be found, and all further action in relation to them had become impossible.

Mere inaction under such circumstances was no failure of duty, and of course, no abuse of authority. The instructions given by the presiding judge were therefore rightfully substituted for those asked for by the plaintiff. Exceptions overruled.