In such cases it will generally be sufficient to prove 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 (q); except in the case of wills, which, under certain circumstances, can be proved in courts of equity only by the production of all the producible witnesses (r).

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 (s).

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 (t).

Where an attesting witness is blind he must be called to give evidence from recollection (u).

If the attesting witness be called, and can recollect nothing, then the execution of the deed may be proved aliunde (x).

If all the witnesses are dead, the handwriting of

(q) Holdfast v. Dowring, 2 Str. 1254.

(r) M'Gregor v. Topham, 3 H. of L. Cas. 132; cf. sup. p. 383. (s) Nelson v. Whittall, 1 B. & Ald. 19.

(t) Per Bayley, J., Maugham v. Hubbard, 8 B. & C. 16; cf. Burling v. Pattison, 9 C. & P. 579.

(u) Rees v. Williams, 1 Dr. & Sm. 314.

(x) Talbot v. Hodson, 7 Taunt. 251.

one of them must be proved, and then the statement in the attestation clause will be presumed to be correct (y). But where an attesting witness lived abroad, it seems that stricter proof of his death ought to be required (z).

ON WRITINGS WHICH REFRESH THE MEMORY.

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 (a).

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

contents:

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

(y) Adam v. Kerr, 1 B. & P. 360; cf. sup. p. 71.
(z) Henley v. Philips, 2 Atk. 48.

(a) Cf. Act ii. of 1855, ss. 45 and 56.

unless the facts which it purports to describe had occurred accordingly.

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 (b).

ness.

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 witBut 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 (c). Lord Tenterden, 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 him

(b) Duchess of Kingston's Case, 20 How. St. Tr. 619.
(c) Maugham v. Hubbard, 8 B. & C. 482.

self, 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, supra, 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 (d).

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(e). But where the witness derives his knowledge of a fact solely from his reliance on the accuracy of the memorandum, it must be produced (ƒ), and his evidence is not, of course, conclusive (g).

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 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

(d) R. v. St. Martin's, Leicester, 2 A. & E. 210.

(e) R. v. Hardy, 24 St. Tr. 824.

(f) Doe v. Perkins, 3 T. R. 754.

(g) Dupuy v. Truman, 2 Y. & C. C. C. 341.

should swear positively that the memorandum was made at a time when he had a distinct recollection of the facts, and ante litem motam (h).

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 (i), 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 (j). 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 (k), 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 (1), or an article in a newspaper (m), 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.

An adverse party will have a right to cross-examine

(h) Wood v. Cowper, 1 C. & K. 646.

(i) Anon. Ambler, 252.

(j) Jones v. Stroud, 2 C. & P. 196.

(k) 2 A. & E. 343.

(1) Horne v. Mackensie, 6 Cl. & Fin. 628.

(m) Topham v. M'Gregor, 1 C. & K. 320.