(after stating the facts). Obviously, the admissions and declarations made by the defendant sheriff on his examination before the county commissioners, as to the receipt in question, were competent evidence in that respect against him and his co-defendants, especially, if, as suggested, these tended to sustain the evidence of the relator himself, and to contradict, impair, or destroy the force of that of the defendants.
Such admissions and declarations might be proven by any person who heard them, and could state what they were, or the substance of them. If the witness produced by the relator for that purpose, could not at first state what they were, and stated that he had written memoranda, from which he could refresh his memory, and then give the substance of them from his own recollection, the relator was entitled to have the witness thus qualify himself to testify, and have the benefit of his testimony. It is a well settled rule of law, that although a witness can testify only to such facts as are within his own knowledge and recollection, still he may refresh and help his memory by reference to a paper writing, memorandum or entry in a book, and, indeed, he may be compelled to do so, when the writing is present in Court. The purpose of such reference to the writing, whatever its nature, is not to supply facts, but to refresh, quicken and awake the memory of the witness, and thus enable him to testify of facts within his own knowledge and recollection. Human experience shows that it not infrequently happens, that a mere hint revives the distinct remembrance of facts and events, which, but for it, seemed to have been forgotten. State v. Cheek, 13 Ired., 114; *331 State v. Lyon, 89 N. C., 568; Cowles v. Hayes, 71 N. C., 230; Greenleaf on Ev., §436, et seq.
The witness Leeper was asked if he could state the substance of all that the defendant had sworn on the former occasion mentioned. He, in effect, replied that he could not, without refreshing his memory by reference to certain written memoranda, made by himself, that he then had present, plainly implying that he could, if permitted to refer to it. The Court refused to allow the witness to thus refresh his memory. Why it did so, does not appear, and we are unable to see any reason for such ruling. Plainly, the relator was entitled to have the evidence of the witness, and to have him qualify himself to testify, if he could do so, by reference to the writing then present, as he said he could do.
And when afterwards in the further progress of the trial, the same witness was again introduced, and he then stated that he could recollect and testify as to all that was sworn by the defendant McKee on the former occasion as to the receipt referred to, he ought to have been allowed to testify, because he said that he could do so, and if he could, the relator was entitled to have the benefit of his testimony. The plain inference was, that he had reflected about the matter, and had recollection of the facts, or had refreshed his memory by reference to the memoranda mentioned by him in his first examination. He had the rightto doso, and it was not necessary that, he should refer to the memoranda in the presence of the Court, or produce the same in Court, certainly not, unless the Court so required. When the witness stated that he had knowledge of the facts, that was sufficient, — he was then prepared to testify, and any question as to the accuracy of his knowledge and recollection, would notgo to his competency, but to his credibility.
The Court told the relator that he might read in evidence the whole or any part of the testimony of the defendant McKee, as taken down by the witness Leeper, before the county commissioners, but the relator at first declined to do so, it seems, doubt*332ing its competency. It may be, that under the circumstances and for the purpose contemplated, it was competent to receive it in evidence. Ashe v. DeRosset, 5 Jones, 299. State v. Pierce, 91 N. C., 606. But the relator had the right to have the benefit of the pertinent testimony of such competent witnesses as he produced on the trial. It was for the relator to determine what character of competent evidence he would introduce to prove his case — it was the office of the Court to determine its competency and application. The relator might wish to multiply and diversify the evidence produced by him, and he certainly had the right to do so, to a reasonable extent.
The fact that the defendants in reply, introduced the defendant McKee, and he stated that he had been examined on a former occasion before the county commissioners in respect to the receipt in question, and his statements then made were substantially the same as those proposed to be proven by the witness Leeper, did not have the effect to cure the error of the Court in refusing to admit the competent evidence offered by the relator and rejected. He had the right, in the order of the trial, to have the benefit of the competent testimony of his own witness, and to have his version of the facts. It may be, that he would have stated them differently in their detail and application. He might have added or omitted something that would have changed or modified the substance of McKee’s testimony. The jury might have believed him more readily than McKee, and given more weight to his version of the facts. A party ought to be allowed to prove his case in his own way and by his own evidence, if he offers to do so as allowed by law and according to the course and practice of the Court. It is scarcely just, when competent evidence, offered by one party, has been erroneously rejected, to allow the opposing party, in his own way, in a different stage of the trial, to supply the evidence so rejected, by the testimony of the opposing party himself.
The witness Leeper ought to have been allowed to refresh his memory by reference to the written memoranda mentioned by *333him, and to testify, and he ought to have been allowed to testify when he was introduced the second time, and stated that he then had recollection of the facts and could state them.
Appeal.
Where both parties appeal to this Court, and there is a new trial granted on one of the appeals, it renders the consideration of the other useless, and it will be dismissed.
There is error, and the plaintiff is entitled to a new trial. To that end let this opinion be certified to the Superior Court according to Jaw. It is so ordered.
Error. Reversed.
DEFENDANTS’ APPEAL.
This was the defendants’ appeal in the preceding case. It was argued by the same counsel.
In the case above named, both the plaintiff and defendants appeal. As we have decided that the plaintiff is entitled to a new’ trial, the result is to give the defendants the like benefit. So that we need not decide the questions presented by their appeal. It turns out that it was unnecessary, and it must be dismissed as having been improvidently taken. It is so ordered.
Dismissed.