PROSPECTUS.
In Practice. The commencement of a record in king's bench, now written in English, "Be it remembered," and which gives name to the whole clause.
It is only used in proceedings by bill, and not in proceedings by original, and was troduced to call attention to what was sidered the bye-business of the court 2 Tidd, Pract. 775. Memorandum is applied, also, to other forms and documents in Eng lish practice : e. g. ntentorandunt 'Pa error, a document alleging error in fact and ac companied by an atfidaVit of such matter of fact. 15 & 16 Vict. c. 76, § 158. Kerr's Act. Law. Proceedings in error are now abolish ed in civil cases ; Jud. Act, 1875. Also, a memorandum, of appearance, etc., in the gen eral sense of an informal instrument, re cording some fact or agreement.
A memorandum, of association is a docu ment subscribed by seven or more persons for the purpose of forming themselves into an incorporated company, with or without' limited 3 Steph. Com. 20.
In Contracts. A writing required by the Statute of Frauds. See NOTE OR MEMORAN DUM.
In the Law of Evidence. A witness may refresh his memory by referring to a writ ten instrument, memorandum, or entry in a book, and may be compelled to do so, if the writing is in court; State v. Cardona, 11 S. C. 195 ; but the memorandum is not com petent evidence to prove ;the facts stated, in itself ; Baum v. Reay, 96 Cal. 462, 29 117, 31 Pac. 561; nor is the memorandum ad mitted in evidence merely because the wit ness uses it to refresh his recollection; 130 U. S. 611. The writing need not be an orig inal or made by the witness himself, pro vided, after inspecting it, he can speak from his own recollection, not relying wholly upon the writing; Cameron v. Blackman, 39 Mich. 108 ; Finch v. Barclay; 87 Ga. 393, 13 S. E. 566'; Labaree v. Klosterman, 33 Neb. 150, 49 N. W. 1102; Culver v. Lumber Co., 53 Minn. 360, 55 N. W. 502. And a writing may •be re ferred to by a witness, even if inadniissible as evidence itself.; 8 East 273; Kunder v. Smith, 45 Ill. App. 368. A witness may refer
to a writing which he remembers having seen before, and which tie knew at that time to be correct, although he has no recollection of the facts contained therein; so, when he neither recognizes the writing nor remembers anything, therein, but yet, knowing it to be genuine, his mind is so convinced, that he is enabled to swear to the fact, as where a banker's clerk is shown a bill of exchange with his own writing upon it; Whart. Ev. § 518; 1 Greenl. EV. §§ 436-439. See Brayley v. Kelly, 25 Minn. 160; Bates v. Sabin, 64 Vt. 511, 24 Atl. 1013. The admission in evi dence of a memorandum made by the witness is error if it do,es not, appear that the wit ness could not have testified from memory ; Howe. v. Cochran, 47 Minn. 403, 50 N. W. 368.
It is held that where a witness uses a memorandum, but to show it to op posing counsel, his testimony will not be sup pressed ; Parks v. Biebel, 18 Colo. App. 12, 69 Pac. 273 ; also that documents from which the witness has, refreshed his memory before examination need not be produced at the trial (though failure to produce them would weaken his evidence); McCormick v. Cleal, 12 App. D. C. 335 ; it is no ground for rejecting his testimony that the witness,'hav ing refreshed his memory by a memorandum, fails to produce it in court ; Loose v. State, 120 Wis. 115, 97 N. W. 526 (contra, Banking House of Wilcoxson & Co. v. Darr, 139 Mo. 660, 41 S. W. 227); especially if he was able, after refreshing his memory, to testify from his independent recollection ; State v. Mag ers, 36 Or. 38, 58 Pac. 892. Other cases hold that opposing counsel has a right to exam ine a memorandum used by a witness ; Vo lusia County v. Bigelow, 45 Fla. 638, 33 South. 704 ; Atchison,' T. & S. F. R. Co. v. Hays, '8 Kan. App. 545, 54 Pac. 322 ; Schwick ert v. Levin, 76 App. Div. 373, 78 N. Y. Supp. 394; before it' is used; Morris v. U. S., Fed. 123, 80 C. "C. A. 112, 9 Ann. Cas. 558; but this is dikretionary with the trial judge ; Com. v. Burke, 114 Mass. 261.