F. W. Flato v. Brod & Hemmi, 37 Tex. 734

Ogden, J. The court did not err in ruling that a boob, con- taining transcribed items of an account, taken from the book of original entries, could not be used as evidence of the correctness of the account, if either did the court err in ruling that Hemmi, when placed upon the stand as a witness, might refer to that book of transcribed items, in order to refresh his memory in regard to anything contained in that book, or, indeed, in regard to any other fact.

The witness should be made to swear of his own knowledge; but while he does so, he may be permitted to refer to any thing, or fact, he may choose, in order to refresh his memory in regard to any matter about which he may be palled upon to testify. The evidence in this case is somewhat contradictory and conflicting. But we are of the opinion that the jury are the proper judges of the facts, and especially in cases of conflicting testimony. We have been able to discover no error requiring a reversal of the judgment, and it is affirmed. Affirmed.