Testimony to facts stated in document mentioned in section 162
Recorded, though forgotten. A witness may testify to facts in a § 162 document even with no specific recollection of them — provided he is sure they were correctly recorded.
How to read Section 163
Even if a witness no longer remembers the facts, he may still testify to what a § 162 document records — so long as he is sure it was recorded correctly.
A witness may testify to facts stated in a § 162 document…
…although he has no specific recollection of the facts themselves…
…if he is sure the facts were correctly recorded in the document.
The bare Act
The section in its own words — the rule and an illustration.
A witness may also testify to facts mentioned in any such document as is mentioned in section 162, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.
A book-keeper may testify to facts recorded by him in books regularly kept in the course of business, if he knows that the books were correctly kept, although he has forgotten the particular transactions entered.
In short: § 162 dealt with present recollection refreshed — the writing jogs the witness’s memory, and he then testifies from that revived recollection. This section deals with the opposite case: past recollection recorded. Sometimes the writing fails to revive any memory at all — the witness has genuinely forgotten the facts. Even then, he may testify to the facts as recorded in a § 162 document, although he has no specific recollection of them, if he is sure that the facts were correctly recorded. His evidence rests not on memory of the facts but on his confidence in the accuracy of the record — he vouches that what the document says is true, because he knows it was made correctly. The illustration is the everyday one: a book-keeper may testify to entries in books regularly kept in the course of business, if he knows the books were correctly kept, even though he has forgotten the particular transactions. The safeguard is his certainty of correctness — without it, a merely existing record is not enough.
→ This carries forward IEA 1872 § 160 — testimony to facts correctly recorded, though not now recollected.
Glossary
Facts set out in a contemporaneous writing usable to refresh memory.
He genuinely does not remember the facts themselves.
Confident of the accuracy of the record.
The illustration — routine business records.
§ 162 (writing jogs memory) vs § 163 (memory gone, record trusted).
Maintained accurately in the usual way.
The picture
When the record jogs nothing, the witness’s sureness that it was correctly made lets him testify to what it records.
The section, part by part
Tap a part — the picture-story tells it first; the word-by-word text and example follow.
the ruleTestify to what was recorded — though you no longer recall it
two modesMemory jogged (§ 162) vs memory gone but record trusted (§ 163)
Connected provisions
Refreshing memory
Present recollection refreshed — § 163 is its complement, past recollection recorded.
Right of adverse party as to the writing
A writing used to refresh memory must be produced and shown to the adverse party, who may cross-examine on it.
Entries in the course of business
The relevancy of regularly-kept books of account — the setting of the illustration.
IEA 1872, § 160
Carried forward — testimony to facts correctly recorded, though not now recollected.