Page images

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.1 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 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.2 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 attach generally to the copies of a copy. This view corresponds with the express dictum of Patteson, J., in Burton v. Plummer,3 that "the copy of an entry, not made by the witness contemporaneously, does not seem to be admissible for the purpose of refreshing a

1 Jones v. Stroud, 2 C. & P. 196.

2 Phill. 486.

3 2 A. & E 343.


witness's memory." The cases where such a privilege appears to have been conceded, as where the author of a written report, or an article in a newspaper,2 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.3

An adverse party will have a right to cross-examine as to the particular entries on which the witness relies ; but if he examines as to collateral or other entries, he makes them his evidence.4

Horne v. Mackenzie, 6 Cl. & Fin. 628. 2 Topham v. M'Gregor, 1 C. & K. 320. 3 Cf. Tayl. 1093.

4 6 C. & P. 281.



MANY matters can be proved only by deed or other writing; and, in such cases, oral evidence, however distinct and direct, is wholly inadmissible.


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.1 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.2


Contracts and acts done by corporations, must generally be by deed; and can therefore be proved only by a deed bearing the corporation seal.3

This rule is an ancient principle of common law, and still remains abstractedly unmodified. But practically a large class of exceptions has been engrafted on it, and their accumulative result appears to be that minor contracts, and other matters which are essentially

1 Tayl. 782


2 Wood v. Leadbitter, 13 M. & W. 842.
3 Arnold v. Mayor of Poole, 4 M. & G. 860.
2 E

incidental and necessary to the daily working of a corporation, may be proved by the ordinary principles of parol evidence. Thus it has been said by Rolfe, B. : "A corporation, it is said, 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."1

His lordship referred also to the judgment of Lord Denman, in Church v. Imperial Gas Light Company, and spoke of the test as being a paramount convenience so great as almost to amount to a necessity.

The contract or matter must be evidently within the category of a corporation's incidental necessities and daily emergencies, in order to be provable without a writing under the corporation seal and such a writing will be indispensable to prove any contract or other transaction, by or with the corporation, where the matter is not within the routine of its daily business; or when it is of such an importance as not to support a reasonable presumption that authority to make such a contract, &c., has been virtually delegated to the agents of the corporation. The practical question in such cases is, was the transaction incidental or foreign to the purposes and daily business of the corporation? If it be incidental, as to repair the premises of the corporation,2 or a contract to buy or sell such goods as the corporation is formed to buy and sell ;3 such a

1 Mayor of Ludlow v. Charlton, 6 M. & W. 821.

2 Saunders v. St. Neots Union, 8 Q. B. 810.

3 Church v. Imperial Gas Light and Coke Company, 6 A. & E. 846.

matter does not require to be proved by the corporation seal. But when the goods to be supplied are not such as those in which the corporation usually deals;1 or when the contract is of such a magnitude, and such an unusual description, as to require reasonably the formal and express assent of the corporation, the fact must be proved by writing under the corporation seal.2 It is also to be remarked, that a long current of recent cases has tended to restrict the general principle that corporations can only contract under seal. The courts are unwilling to hold such contracts void, merely because they are not evidenced by the corporation seal; and are becoming every year more and more inclined to hold corporations bound by the contracts and acts of authorized, or duly appointed, agents. Thus, it is said by a pre-eminent authority, in a very recent case, that "although corporations can only contract under seal, they are bound by their conduct, and by the acts of their solicitors, after their contract, just as an individual would be."3 So, in tort, corporations are liable for the act of their servant, although they have not been appointed under the corporation seal; and use and occupation may be maintained by a corporation against a tenant who has entered, but who has not been constituted by a demise under seal.5

It is doubtful how far a corporation is bound by an executed contract, not under seal, but of which the corporation has received the benefit. The Court of Queen's Bench holds that the corporation is bound :6 the Court of Exchequer and the Common Pleas hold, apparently, that it is not bound.

1 Copper Miners Company v. Fox, 16 Q. B. 229.

2 Homershan v. Wolverhampton Railway Company, 6 Exch. 137. 3 Lord St. Leonards: Eastern Counties Railway Company v. Hawkes, 25 L. T. 318.

Eastern Counties Railway Company v. Brown, 6 Exch. 314. 5 Mayor of Stafford v. Till, 4 Bing. 77.

6 Saunders v. St. Neots Union, 8 Q. B. 810. Lamprey v. Billericay Union, 3 Exch. 307. 8 Arnold v. Mayor of Poole, 4 M. & G. 860.

« EelmineJätka »