Argument for Defendant in Error. (1) As was said by Morton, C. J., in Miller v. Shay, 145 Mass. 162, 164, "The plaintiff had clearly the right to use his account book to refresh and aid his memory. The fact that the book went to the jury could not prejudice the defendant." (2) The schedule, annexed to their verdict by the jury, shows that, of all the securities mentioned on the various pages of the plaintiff's book, the only ones on which the verdict was based were eight Minneapolis bonds of $1000 each, one Eastern Illinois bond of $1000, three Oregon Railroad Navigation bonds of $1000 each, five Chicago Sewerage Loan bonds of $1000 each, and two N. Y. & N. E. R. R. bonds of $1000 each, and from the amount reckoned on this basis. the plaintiff remitted in accordance with the opinion of the court the amount allowed for one of the Chicago Sewerage bonds and for one of the Minneapolis bonds. The defendant's ninth alleged error is to the ruling of the court, permitting the rest of the plaintiff's book to go to the jury without sealing up the same so that it could not be examined by the jury. It is to be presumed that the court found that it was not practicable to seal up the rest of the book without impairing the use to be made of the leaves which were in evidence. At all events, it was within the discretion of the presiding judge to send the book to the jury after instructing them not to examine the parts which were not in evidence. It will be presumed that the jury followed these instructions. An examination of the part of the book not admitted in evidence shows that there was nothing contained therein, even if it had been read by the jury, which could have prejudiced the defendant unless it was the statement as to the plaintiff's dislike of the defendant Walley. But she had testified fully as to the facts on which this feeling was based. But it is well settled that a paper which is in part legal evidence and in part not, may go to the jury if they are instructed to disregard the part which is not evidence. Commonwealth v. Wingate, 6 Gray, 485; Commonwealth v. Dow, 11 Gray, 316. Opinion of the Court. MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court. There are thirty-four assignments.of error in this case, many of which are of little importance, and as we have come to the conclusion that the case must be reversed and a new trial ordered, it is neither necessary nor advisable that we should dispose of them all. (1) The seventh and eighth assignments are taken to the admission of certain pages of a memorandum book purporting to contain a list of securities owned by the plaintiff. Concerning this book she testified that "it was her own book, in her own handwriting, never seen by any one until it went into the hands of counsel; that the entries were made in it from time to time; that it showed the securities which she had, which went into the box in the safe deposit vaults.” One page she testified was cut from an earlier book kept by her, which was pinned into this book, and that page showed what securities she had in her box in 1878. On cross-examination, she testified with reference to the first page, "that the figures at the top in pencil she put there when she took the page out of the other book and put it into that book. Those figures in pencil were 1877 and 1878; that she did not remember at what time she did this; that it was before 1882, and was after she cut it out of the other books; that she had no memorandum except what was on that paper in the book; that some of it was written in ink and some in pencil; that what was in ink was written when it was in the other book; that the pencil part was written after it was put in this book; that the summing up was made by her, but was not correct; that at the bottom of the page the value appeared to be as of 1871; she did not know whether it was its correct value in 1871 or 1877," etc. "That the entries in her memorandum book were not reliable; that she could not tell when she made the entries upon them or when the figures were set down; that she could not tell why she made the entries, nor why she had struck out any of them." This book was sought to be used, not for the purpose of refreshing the memory of Opinion of the Court. the witness, but was laid before the jury as independent evidence of the character and value of the securities. There is no doubt that books of account kept in the usual and regular course of business, when supplemented by the oath of the party who kept them, may be admitted in evidence. Insurance Company v. Weide, 9 Wall. 677; Cogswell v. Dolliver, 2 Mass. 217; White v. Ambler, 8 N. Y. 170. But whether this rule extends to memoranda made by a witness contemporaneously with the event they purport to record, is open to very considerable doubt, elementary writers and courts being about equally divided upon the subject. 1 Greenleaf's Evidence, section 437, note 3; 1 Smith's Leading Cases, 6th Am. ed. 508, 510. In New York they are held to be admissible. Halsey v. Sinsebaugh, 15 N. Y. 485; McCormick V. Penn. Central Railroad, 49 N. Y. 303, 315. The cases in Massachusetts apparently favor a different view. Commonwealth v. Fox, 7 Gray, 585; Dugan v. Mahoney, 11 Allen, 572; Commonwealth v. Ford, 130 Mass. 64; Commonwealth v. Jeff's, 132 Mass. 5; Field v. Thompson, 119 Mass. 151. In this court it was held in Insurance Companies v. Weides, 14 Wall. 375, 380, that a statement in figures of the value of certain merchandise destroyed by fire, which statement professed to be a copy of another statement contained in a book, itself destroyed in the fire, accompanied by proof that on a certain day the witness took a correct inventory of the merchandise, and that it was correctly reduced to writing by one of them and entered in the volume burnt, and that what was offered was a correct copy, was admissible in evidence in a suit against the insurance company to fix the value of the merchandise burnt, though there was no independent recollection by the witness of the value stated. In delivering the opinion of the court Mr. Justice Strong observed: "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 been many times decided that they are to be received. And why should they not be? Quantities and values are retained in Opinion of the Court. the memory with great difficulty. If at the 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." This case might have been properly supported on the ground that they were entries made in the usual course of business, since from the report of a similar case (9 Wall. 677) this seems to have been the character of the entries. See also Chaffee v. United States, 18 Wall. 516. In Maxwell v. Wilkinson, 113 U. S. 656, a memorandum of a transaction which took place twenty months before its date, and which the person who made the memorandum testified that he had no recollection of, but knew it took place because he had so stated in the memorandum, and because his habit was never to sign a statement unless it were true, was held to be inadmissible. Many of the authorities are cited, but the inadmissibility of the memorandum was put upon the ground that it was made long after the transaction it purported to state. The general question of the admissibility of such memoranda as independent evidence was not, however, decided. In Vicksburg & Meridian Railroad v. O'Brien, 119 U. S. 99, which was an action against a railroad company by a passenger to recover for personal injuries, a written statement as to the nature and extent of his injuries, made by his physician while treating him for them, for the purpose of giving information to others with regard to them, was held not to be admissible in evidence against the company, even when attached to the deposition of the physician, in which he swore that it was written by him, and that in his opinion it correctly stated the condition of the patient. Numerous authorities were cited upon both sides of the general question as to the admissibility of such memoranda, but the court held that the case did not require an examination of such authorities, inasmuch as it did not appear but that at the time the witness testified he had, "without even looking at his written statement, a clear, distinct recollection of every essential fact stated in it. If he had such present recollection there was no necessity whatever for reading that paper to the jury." Opinion of the Court. We do not regard any of these cases as committing this court to the general doctrine that such memoranda are admissible for any other purpose than to refresh the memory of the witness. But even if it were conceded that such a memorandum as that in question made cotemporaneously with the deposit of the securities, and properly authenticated by oath of the plaintiff, would be admissible as independent evidence, the testimony of the plaintiff fell far short of establishing the requisite qualifications for its admission. It does not appear when the memorandum was made, or that it was cotemporaneous with the deposit of the securities. Upon the other hand, it seems the entries were made from time to time, though not apparently as the securities were deposited in the box. Indeed, the plaintiff swears directly that she could not tell when she made the entries upon them, or when the figures were set down; that she could not tell why she made the entries, or why she struck out any of them, and that the entries were not reliable. She further testified that she never "saw any Oregon Navigation six per cent bonds, and never saw or received any Eastern Illinois bonds; that she never had any New York and New England seven per cent bonds in her possession, and never saw them in her box; that she never saw any certificate of Consolidated Virginia stock;" and yet entries relating to these securities appear upon several of the pages of the book. Upon two or three of the pages there is not an entry that has the remotest connection with the question at issue, and it is difficult to see any ground upon which these pages were admitted. Upon the whole, we think these memoranda, if inadmissible. for no other reason, were not sufficiently authenticated to make it proper to submit them to the jury. (2) By the ninth assignment of error it appears that after the close of the case, and when the jury were about to retire to consider their verdict, the court allowed the whole of the memorandum book to go to the jury without any sealing or other protection of the leaves and pages not put in evidence. It appears that when the court admitted the leaves and pages containing the memoranda above alluded to, it directed the |