the genuineness of the document, although he has no recollection of it, or of affixing his name to it (o). Generally speaking, the memorandum from which a witness speaks need not be produced in court; but, if produced, it becomes evidence for the party producing (p), and the opposite party will be entitled to see it, and to cross-examine from it (q). He may cross-examine upon such part of the memorandum as is referred to by the witness, without making the memorandum evidence per se for the opposite party; but if he cross-examines upon other parts, he makes them portions of his own evidence (r). Where a document is put into a witness's hand, but nothing is done upon it, the opposite party is not entitled to see it (s); and where a diary was used by a witness to refresh his memory, it was held that the opposite party was only entitled to see such portions as referred to the subject-matter of the suit (t). Where the witness derives his knowledge of a fact solely from his reliance on the accuracy of the memorandum, it must be produced (u), and his evidence is not, of course, conclusive (x). There is no precise time within which a writing must be shown to have been made, before it can be (0) R. v. St. Martin's, Leicester, 2 A. & E. 210. (p) Payne v. Ibbotson, 27 L. J., Ex. 41. (q) R. v. Hardy, 24 How. St. Tr. 824. (r) Per Gurney, B., Gregory v. Tavernor, 6 C. & P. 281. (8) Sinclair v. Stevenson, 1 C. & P. 585. (t) Burgess v. Bennett, 20 W. R. 720. used by a witness. It is not necessary that it should have been made contemporaneously with the occurrence of the fact; but it ought to have been made soon afterwards, or at least within such a subsequent time as will support a reasonable probability that the memory of the witness had not become impaired when the statement was committed to paper. It appears to be only necessary that the witness should swear positively that the memorandum was made at a time when he had a distinct recollection of the facts, and ante litem motam (y). The memorandum must either have been made by the witness, or recognized by him, at or about the time when it was made, as a correct account. It must not contain any of the elements of hearsay, and it will therefore be inadmissible if it appears to be the statement of a third person (z), as where it had been drawn up by such a person from the witness's own memoranda; or even if it is a copy made by the witness himself from his own original memoranda (a). This rule is consistent with the general principles of secondary evidence, by which the copy of a copy, unless in the nature of a duplicate original, is entirely inadmissible, and corresponds with the express dictum of Patteson, J., in Burton v. Plummer (b), that "the copy of an entry, not made by the witness contemporaneously, does not seem to be admissible for the purpose of refreshing a witness's memory." The cases where such a privilege appears to have been conceded, as where the author of a written report (c), or an article in a newspaper (d), has been allowed to refer to the printed versions, are cases where such printed versions appear to have been treated as originals, and not as copies. (c) Horne v. Mackenzie, 6 C. & F. 628. CHAPTER V. MATTERS WHICH ARE REQUIRED TO BE PROVED BY WRITING-THE STATUTES OF FRAUDS AND OF LIMITA- TIONS-PRESCRIPTION. MANY matters can be proved only by deed or other writing; and, in such cases, oral evidence, however distinct and direct, is wholly inadmissible. INCORPOREAL RIGHTS, Such as advowsons, rents, remainders, reversions,. profits à prendre, and easements, can be created or assigned only by deed, and must therefore be proved by deed. Thus, a ticket of free admission to a theatre or a race course is insufficient evidence of a title to enter, unless it be by deed (a). CONTRACTS BY CORPORATIONS. Contracts and acts done by corporations must generally be by deed, and can therefore be proved only by a deed bearing the corporate seal (b). This rule is an ancient principle of the common law, and still remains in the abstract unmodified; but practically, a large class of exceptions has been engrafted (a) Wood v. Leadbitter, 13 M. & W. 842. on it, and their accumulative result appears to be that minor contracts, where there is a paramount convenience such as to amount almost to a necessity, or contracts connected with the objects for which the corporation was established, may be proved without being under the seal of the corporation. Thus, it has been said by Rolfe, B., "A corporation which has a head may give a personal command and do small acts; as, it may retain a servant; it may authorize another to drive away cattle, damage feasant, or make a distress, or the like. These are all matters so constantly recurring, or of so small importance, or so little admitting of delay, that to require in every such case the previous affixing of the seal would be greatly to obstruct the every-day ordinary convenience of the body corporate, without any adequate object. In such matters, the head of the corporation seems from the earliest times to have been considered as delegated by the rest of the members to act for them" (c). Although, as a general rule, an inferior servant can be retained even by a non-trading corporation by parol, the same principle does not apply to all such servants; for it has been held that the contract for the engagement of a clerk to a master of a workhouse by a board of guardians must be under seal (d). The practical question in such cases is, Was the (c) Mayor of Ludlow v. Charlton, 6 M. & W. 821; cf. Church v. Imperial Gas Co., 6 A. & E. 861. (d) Austin v. Bethnal Green Guardians, L. R., 9 C. P. 91; 43 L. J., C. P. 100; 22 W. R. 406; cf. Dyte v. St. Pancras Guardians, 27 L. T., N. S. 342. |