from the witness the necessary evidence of a taking.] Even supposing this to be a mere memorandum, such as the witness might refresh his memory from, still his evidence does not go far enough. He says, after looking at the memorandum, that he has no doubt; but that he has no memory of these things; so that his memory, after being refreshed, does not supply the proof. [Taunton J. When a bond is put into the hands of an attesting witness, and he says, that he does not recollect attesting, but that, from seeing his name there, he has no doubt that he did, is not that proof of his attestation?] A naked fact may be so proved : Maugham v. Hubbard (a); but here the question was as to proof of the contents of an instrument, or of particulars appearing from those contents only. Could a witness prove what lands were conveyed by a particular deed by looking at the parcels in a long conveyance, and then swearing that, although he still had no recollection of his own, he had no doubt, from the fact of the parcels appearing there, that they were conveyed? Here the material question is, as to the terms of the taking, which must satisfy stat. 59 G. 3. c. 50. In Rex v. Holy Trinity, Kingston-upon-Hull (b), it was admitted in argument, that if it had been necessary to prove the terms of the taking, the writing must have been looked to: but, that being a case of a settlement before stat. 59 G. 3. c. 50., nothing there was to be proved except the fact of the tenancy. In Doe dem. Church v. Perkins (c), it was held, that if a witness cannot swear to a fact any farther than as finding it entered in a paper, the paper must be produced. But the witness. 1834. The KING against The Inhabitants of ST. MARTIN'S, LEICESTER. 1834. The KING against The Inhabitants of ST. MARTIN'S, LEICESTER. here was not entitled to refresh his memory at all from the writing, for that writing was the actual contract; and if such an use of written contracts were permitted, the stamp laws would be easily evaded. Lord DENMAN C. J. It is quite clear that, if this be either a lease or an agreement for a lease, the sessions are wrong. But it is a mere memorandum for the purpose of preventing mistakes, just as if nothing had been put down but figures. It is true, the case states that the writing was signed by the wife on purpose to bind the husband; but it does not appear that she was authorised by him, or that he recognised her act. It is, therefore, neither a lease nor an agreement, and consequently no stamp was necessary. Then it is said that no letting by parol was proved; the witness's statement was, that he had no memory of these things, but, on reading the entry, he had no doubt that the fact really happened. The sessions permitted him to look at the entry for the mere purpose of refreshing his memory, and that was quite right. We cannot here infer whether, when his memory was so refreshed, he swore distinctly or not. TAUNTON J. I am altogether of the same opinion. Independently of what has already been pointed out, five receipts were put in, which furnished a strong presumption of a taking from year to year. The entry was a mere memorandum for the convenience of the parties. PATTESON J. I am entirely of the same opinion. Taking this as an agreement, the statute (a) imposes a (a) Stat. 55 G. 3. c. 184. sched. part 1. Agreement. stamp stamp upon agreements under hand only, meaning such as have per se the binding effect of an agreement. It is said that there was a subsequent assent by the party taking; that, however, is not the question. Could either party have enforced his rights by the agreement? would an action have lain upon it? The wife had no authority; if she had, the sessions should have so found. This is, therefore, neither a lease nor an agreement: it was put into the witness's hands to refresh his memory, and that was right. The authority of Doe dem. Church v. Perkins (a) has been pushed too far in the argument; all that was there decided was, that a witness could not refresh his memory by extracts; that if he could not recollect the facts independently of the writing, the original writing ought to have been in Court, in order that the other party might cross-examine: not that such writing is to be made evidence itself, but that the other party is to have the benefit of the witness's refreshing his memory by every part. In Tanner v. Taylor, cited in Doe dem. Church v. Perkins (b), a witness was not permitted to use an account which had been extracted from a book not in Court; he not being able to swear to the facts further than as finding them in the book. The writing is not made evidence by its having been used for the purpose of refreshing the memory; but still the other side ought to see it (c). The distinction contended for in argument may be open to discussion, but it is one of which I do not see the sense. WILLIAMS J. I am of the same opinion. There can be no doubt that the complaint at sessions was (a) S T. R. 749. (c) See Burton v. Plummer, post, Nov. 24th. P 4 (b) 3 T. R. 754. that 1834. The KING against The Inhabitants of ST. MARTIN's, LEICESTER. 1834. The KING against The Inhabit ants of ST. MARTIN'S, LEICESTER. that it was not competent to the witness to refresh his memory by looking at the writing; and this is the question presented to us by the signed case. Order of sessions confirmed. Wednesday, Overseers of the poor may not charge the parishioners, in their accounts, with the following payments: For making poor rates; For making divisions of the same; For making copy of the same for the collectors; Payments to an accountant for examining, making up, and entering The KING against GwYER and MANLEY. ON appeal against the accounts of Henry Wyndham Gwyer and Samuel Manley, as overseers of the poor of the parish of Bedminster in the county of Somerset, at the instance of Richard Lindsey Sutton, the sessions allowed some of the items, wholly disallowed others, and disallowed some subject to a case. The appeal was against two accounts; one, for the period from the 25th of March to the 29th of September 1832, the other, from the last-mentioned day to the 25th of March 1833. The case was as follows: The appellant was a parishioner of Bedminster, and rated in the second only of three rates made during the accounts of the year. The first rate was made April 26th 1832; the year, and list of de faulters on the rates; Poundage paid for collecting the rates: Although such charges have been authorized by resolutions of vestry. the second, October 4th 1832; the third, February 11th 1833. The appellant was also rated from the 25th of March 1833, to the time of the appeal. Some of the items objected to in the notice of appeal, and disallowed by the sessions, were the following: 61. 6s. for making the poor-rates in October 1832 and February 1833. A parishioner appealed against overseers' accounts for the year, containing the above items. Three rates, (referred to by the items,) had been made during the year. The appellant was assessed to the second only, but he was assessed to the rates of the following year, and until the time of the appeal. Some of the above items related to periods not within the time for which the appellant was rated. It did not appear which of the rates was applied to any of the disbursements objected to: Held, that the appeal lay. 51. 5s. for 51. 5s. for making two divisions of the same. 31. 10s. for making a copy of the said rates for the collectors. 127. 6s. paid to the accountant for examining, making up, and entering the accounts of the year, and the list of defaulters in each of the three rates. 66l. 19s. 9d. paid poundage for collecting 26797. 14s. 6d. Two other items, of 337. 1s. Sd. and 117. 13s. 6d., for like poundage. The parish of Bedminster is twenty-one miles in circumference, and contains a population of 13,000 persons. The sums collected for the relief of the poor amounted in each year to 8000l. and upwards. In the year from March 1832 to March 1833, there were, as usual, two churchwardens and four overseers. Before this year the parish had an assistant overseer, but there was no evidence of his appointment. The parish had employed an accountant to make up their accounts, and when a new rate was made, the accountant was employed to draw out a list of defaulters, and such list, for the three rates made in this year, occupied 150 folio sheets. In this year the vestry allowed a clerk a salary of 50l. to assist the overseer, but it was no part of his duty as clerk to do any business for which any of the sums above mentioned are charged. The affairs of this parish are managed by a commonlaw vestry, and, at a vestry duly held on the 2d of April 1832, it was resolved "That, in the present embarrassed state of the parish, no assistant overseer or overseers be elected, but that power be given to the present overseers to call in what assistance they may stand in need of." This was signed by the chairman of the meeting, and remained in the book in which the resolutions 1834. The KING against GWYER. |