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The 103rd section of the act confines the act, and therefore this principle, to courts of civil judicature in England or Ireland.

In determining, therefore, in a civil case, whether it will be necessary under this act to call the attesting witness to an instrument, the practical and simple question is, whether the instrument is one which requires attestation to give it validity. If the instrument would be void without attestation, the subscribing witness must still be called; but, if attestation be unnecessary, the witness need not be called. Thus, in numerous statutory instruments, attestation is essential to their validity: e.g., wills, warrants of attorney, cognovits, agreements, and indentures of apprenticeship under the Merchant Shipping Act, 1854, instruments executed in pursuance of powers, &c. On the other hand, ordinary bonds, deeds, and agreements of every kind, which are equally binding whether attested or not, are clearly provable without the production necessarily of a subscribing witness.

There are also several common law exceptions to the reservation contained in the act. Thus it is a rule that an attesting witness need not be called to prove an instrument which is more than thirty years old; or when the original is withheld by an adverse party, who refuses to produce it after notice;1 or when the adverse party, in producing it after notice, claims an interest under it ; 2 or when the adverse party has recognized the authenticity of the instrument by acts in the nature of an estoppel in a judicial proceeding; or when the attesting witness is proved to be dead, insane, beyond the jurisdiction of the court, or otherwise not producible after due endeavours to bring him before the court.4


In such cases it will generally be sufficient to prove

1 Poole v. Warren, 8 A. & E. 588.

2 Tayl. 1412.

4 Ibid. 1415.

3 Ibid. 1414.

the handwriting of the attesting witness. It is also held, that where an instrument requires to be attested by several witnesses, it may be proved by calling any one of them; except in the case of wills, which can be proved in courts of equity only by the production of all the producible witnesses.2

An instrument, which is required to be attested by several witnesses, may be proved by evidence of the handwriting of one of such witnesses, coupled with proof of his identity, as soon as the absence of all the witnesses has been explained satisfactorily, but not otherwise.3

Where a witness, called to prove the execution of an instrument, sees his signature to the attestation, and says that he is therefore sure that he saw the party execute the deed, that is a sufficient proof of the execution of the instrument, though the witness adds that he has no recollection. of the fact of the execution of the instrument.4


A document which may be inadmissible intrinsically and per se as primary or secondary evidence, either because it does not embody the substance of the issue, or because it is in the nature of hearsay, will often be admissible to refresh the memory of a witness, and to enable him to speak to the matters to which it refers.

It appears that such a document may be handed to a witness for inspection, and that the witness may give oral evidence accordingly, after a perusal of its con


1 Holdfast v. Dowring, 2 Str. 1254.

2 M'Gregor v. Topham, 3 H. of L. Cas. 155.

Nelson v. Whittall, 1 B. & Ald. 19.

Bayley, J.: Maugham v. Hubbard, 8 B. & C. 16.

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1st. When the writing actually revives in his mind a recollection of the facts to which it refers.

2nd. When, although it fail to revive such a recollection, it creates a knowledge or belief in the witness that, at the time when the writing was made, he knew or believed it to contain an accurate statement of such facts. 3rd. When, although the writing revives neither a recollection of the facts, nor of a former conviction of its accuracy, the witness is satisfied that the writing would not have been made unless the facts which it purports to describe had occurred accordingly.1

It is not necessary that the memorandum should have been actually made by the witness, if he can otherwise make it an original source of personal recollection. Thus, a witness has been allowed to refresh his memory from a paper which he remembers to have recognized as a correct narrative when the facts were fresh in his memory.2

In this way a writing, which is inadmissible for want of a stamp, may practically be made evidence, as a memorandum to prompt the oral statement of a witness. But this case can only arise where the writing is not in itself primary or best evidence, and where a party has his option of resorting either to written or oral evidence. Thus, a writing which is void as an agreement may be equally serviceable as a memorandum. Thus, a memorandum of the receipt of money, which was void as a receipt for want of a stamp, has been held strictly admissible to refresh the memory of a witness, and to enable him to say, from the fact of his signature, that he had received money which he had no recollection of having received.3 Lord Tenterden,

1 Cf. sup. p. 45.

2 Duchess of Kingston's Case, 20 How. St. Tr. 619. 3 Maugham v. Hubbard, 8 B. & C. 482.

C.J., said: "In order to make the paper itself evidence of the receipt of the money, it ought to have been stamped. The consequence of its not having been stamped might be, that the party who paid the money, in the event of the death of the person who received it, would lose his evidence of such payment. Here the witness, on seeing the entry signed by himself, said that he had no doubt that he had received the money. The paper itself was not used as evidence of the receipt of the money, but only to enable the witness to refresh his memory; and, when he said that he had no doubt he had received the money, there was sufficient parol evidence to prove the payment."

According to the third principle, suprà, a person who is shown his name on a writing may depose to the genuineness of the document, although he has no recollection of it, or of affixing his name to it.'

Generally, the memorandum, from which a witness speaks, need not be produced in court; but, if produced, the opposite party will be entitled to see it, and to cross-examine from it.2 But where the witness derives his knowledge of a fact solely from his reliance on the accuracy of the memorandum, it must be produced.3

There is no precise time within which a writing must be shown to have been made, before it can be used by a witness. It is not necessary that it should have been made cotemporaneously 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.1

It appears to be only necessary that the witness should swear positively that the memorandum was

1 R. v. St. Martin's, Leicester, 2 A. & E. 210.

2 R. v. Hardy, 24 St. Tr. 824.

3 Doe dem. Church v. Perkins, 3 T. R. 754. 42 Phill. 484.

made at a time when he had a distinct recollection of the facts, and ante litem motam.1

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 appear to be the statement of a third person; as where it had been drawn up by such a person from the witness's own memoranda; or even if it be a copy made by the witness himself from his own original memoranda.2 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 ;3 and there appears to be neither principle nor authority to support the personally eminent opinion of Mr. Phillipps, that the copy of an original memorandum, made by the witness himself from his own original, would be admissible. It must be remembered, that the original memorandum is itself not primary, but secondary evidence; that it is itself not an original, but a transcript and copy of the witness's own cotemporaneous knowledge, which in its oral form would be the strictly primary and original evidence. Therefore, if the copy of a memorandum were admissible to refresh a witness's memory, there would be no reason why the examined copy of an examined copy of an original document should be, as it clearly is, inadmissible. Mr. Phillipps puts a case of a witness making a memorandum, then a copy of such memorandum, and then destroying the original; and supposes that in such a case the witness might refresh his memory from the copy. But, independently of an objection that the witness would be taking advantage of his own wrong or carelessness, it is clear that such a writing would be open to all the objections which

1 Wood v. Cowper, 1 C. & K. 646; Tayl. 1092. 2 Jones v. Stroud, 2 C. & P. 196.

4 2 Phill. 486.

Sup. p. 356,

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