A. No, sir. Q. The clerk makes this, and you sign them? A. He keeps them, and copies them off of these reports. A. I frequently see him." It is further shown that this book is signed by the inspector from the 1st to the 5th of every month following. The page alluded to had previously been offered and received in evidence without objection while Ellsworth, the inspector, signing as of dates December 2d, 3d, and 5th, was on the stand, and likewise the entire book had been offered and admitted, which shows the inspection of many other engines during the same month; but at this time there was an objection interposed both to the memorandum, and to the witness using it, because it appears from the witness's statement that he did not make the entries, nor were they made under his supervision. Ellsworth, while a witness, testified that he made his reports sometimes on stubs, réquisition stubbooks-anything to get them on-during the month, which he sent into the office, but that he had them before him when he signed up the exhibit. The objection to the memorandum itself is manifestly without merit, as at this time it had already been admitted in evidence without objection; and, as to the objection to the witness using it, we are of the opinion that it is also without merit, for the reason that the exhibit was already a matter in evidence, and, being so, there existed no good reason why the witness should not have been examined concerning it, nor why he should not have made such statements touching the real facts as he was enabled to with its aid. However, as this case must go back for a new trial on another point, we will state briefly the result of our investigation as to the admissibility and use of this memorandum for any purpose in the case. 1. Under the testimony of Whitby, the result of the inspections were first noted in a shopbook, and the memorandum in question was subsequently made up from these notations by the division foreman's clerk, and verified by the witness, who appended his signature in testimony thereof. The original entries are those made in the shopbook. Memoranda made up therefrom are but secondary evidence, and are not per se competent evidence of what was done; nor are they competent for use by the witness under any conditions unless they so refresh his memory that he would thereby be enabled to testify independently of them, or except the originals be lost, or their absence legally excused: State v. Magers, 36 Or. 38, 42 (58 Pac. 892); Haines v. Cadwell, 40 Or. 229 (66 Pac. 910). By the old law a witness might have refreshed his memory from the memorandum or writing made by himself or under his direction, if made at or near the time, and while the fact or facts of which it speaks were fresh in his mind; and so he might have refreshed his memory from a memorandum or record made by another, if read by or to him when the matter was fresh in his memory, so that he was enabled to depose that the writing correctly represented his recollection at the time: 1 Greenleaf, Evidence (16 ed.), § 439b; Abbott, Trial Brief (2 ed.), 395; Stephens, Evidence, Art. 136; 2 Phillips, Evidence, *916; Commonwealth v. Ford, 130 Mass. 64 (39 Am. Rep. 426). The statute has changed this rule, so that now a memorandum must have been made by the witness himself, or under his direction: B. & C. Comp. § 848. This statute, in the light of the law as it formerly stood, was probably designed to apply more particularly, if not exclusively, to those memoranda where, after consultation by the witness, his memory is not so refreshed that he can speak from his own recollection independently of the writing, because, if wholly refreshed, so that he can speak without it, it is not always necessary that he produce it in court; but, if reference is made to it while testifying, it is proper for the opposite counsel to cross-examine concerning it, to determine whether he is using it as evidence aside from his recollection: Friendly v. Lee, 20 Or. 202 (25 Pac. 396); State v. Magers, 36 Or. 38, 42 (58 Pac. 892); Haines v. Cadwell, 40 Or. 229 (66 Pac. 910); Hill v. State, 17 Wis. 675 (86 Am. Dec. 736); Folsom v. Apple River L. Co. 41 Wis. 602. 2. The theory of the law deducible from the books seems to be that a memorandum is but secondary evidence of the facts of which it speaks, the primary evidence being the knowledge of the witness, if he is able to testify truly as to the facts mentioned, or if he is enabled to testify from present recollection after having had his mind quickened by the memorandum-that is to say, of his own knowledge, independent of the memorandum; and it is only when this primary proof is not available that resort may be had to the secondary, so that it becomes necessary to show that the witness cannot speak from knowledge of the facts, or from present recollection thereof, after having consulted the memorandum, before it can become of evidentiary value, either as auxiliary, or an aid to the mind in speaking from it: Bradner, Evidence (2 ed.), 472; Abbott, Trial Ev. (2 ed.), 395, 396; Friendly v. Lee, 20 Or. 202 (25 Pac. 396); Howard v. McDonough, 77 N. Y. 592; Peck v. Valentine, 94 N. Y. 569, 571; National Ulster County Bank v. Madden, 114 N. Y. 280, 284 (21 N. E. 408, 11 Am. St. Rep. 633); Krom v. Levy, 1 Hun (N. Y.), 171; People v. McLaughlin, 150 N. Y. 365 (44 N. E. 1017); Acklen's Executor v. Hickman, 63 Ala. 494 (35 Am. Rep. 54); Hayden v. Hoxie, 27 Ill. App. 533. But to enable a witness to testify from the memorandum, under the conditions stated, it must be the original, unless it be lost, or its absence excused: Davis v. Field, 56 Vt. 426; Caldwell v. Bowen, 80 Mich. 382 (45 N. W. 185); Harrison v. Middleton, 11 Grat. 527, 547. 3. If the original be produced, and it appears that it was made in the usual course of business, it may be introduced and received in evidence along with the testimony of the witness who made it, and is enabled to say that the facts stated in it were correctly minuted at the time; but this is because he has forgotten, so that he is unable to speak concerning such facts without the aid of the memorandum: Abbott, Trial Ev. (2 ed.), 395; National Ulster County Bank v. Madden, 114 N. Y. 280, 284 (11 Am. St. Rep. 633, 21 N. E. 408); Peck v. Valentine, 94 N. Y. 569, 571; Krom v. Levy, 1 Hun (N. Y.), 171; Merrill v. Ithaca & Owego R. Co. 16 Wend. 586 (30 Am. Dec. 130); Moots v. State, 21 Ohio St. 653; Burton v. Plummer, 2 A. & E. *341; Doe v. Perkins, 3 D. & E. 749; Tanner v. Taylor, referred to by Mr. Justice BULLER in the latter case. Memoranda made in the usual course of business, when made up from reports of subordinates, are admissible, under the rule, when accompanied by the testimony of such subordinates that they represent truly what had transpired, combined with that of the person minuting the transactions that they were also truly noted; but not so with merely private memoranda, not made in pursuance of any duty owed by the person making them: Mayor v. Second Ave. R. Co. 102 N. Y. 581 (7 N. E. 905, 55 Am. Rep. 839). To the same purpose, see Harwood v. Mulry, 8 Gray, 250; Miller v. Shay, 145 Mass. 162 (16 N. E. 468, 1 Am. St. Rep. 449). So, the court in the case of The Norma, 68 Fed. 509 (15 C. C. A. 553), where entries were made in the usual way from memoranda furnished by foremen of the time of their workmen, the memoranda being lost, held that the proofs were sufficient as to certain items pertaining to the yacht; the foremen having been called in conjunction with the bookkeeper who made up the account, citing Mayor v. Second Ave. R. Co. 102 N. Y. 581 (7 N. E. 905, 55 Am. Rep. 839). Another phase of the question was presented in Peck v. Valentine, 94 N. Y. 569, where the plaintiff, for the purpose of proving that defendant had not entered in his cashbook all the moneys received by him for the sales of lumber, called one Leggett, who testified that he kept on a loose piece of paper an account of moneys received by defendant, which he gave to the plaintiff. This the plaintiff supplemented by his own testimony that he received the memorandum from Leggett and had lost it, but that he had correctly copied the figures into a memorandum book, and that the entries had not been altered; and it was held error to receive the book in evidence, because the memorandum of Leggett was not produced, and he was not called upon to verify its contents. Of a kindred nature is Hematite Min. Co. v. East Tennessee, V. & G. R. Co. 92 Ga. 268 (18 S. E. 24). 4. In the light of these rules and legal principles, we are of the opinion that the original memoranda of Ellsworth and Whitby, showing the dates of their inspections, should have been produced, if they were unable to testify to the facts thereby recorded without and independently of them. If produced, however, it would have been competent to submit them to the jury, as well as for the witnesses to speak from them. 5. If, on the other hand, they have been lost, and the fact is satisfactorily shown, then the fact of the inspection could be proven by calling the inspectors in conjunction with the clerk in the division foreman's office who made up the present book in the usual course of business, and the book would then become competent evidence to go to the jury. Neither the inspector nor the clerk being able to testify as to the fact of the inspection and the result, with the attendant dates, from present recollection, the necessity for resort to the secondary evidence would thus be shown; otherwise the book could not be introduced. The book is not a memorandum made by the inspectors or under their direction, but it is a reproduction of the original memoranda made by them. It is a memorandum made by the clerk, however, and, when his testimony concerning it is conjoined with that of the inspectors, showing that inspections were made, and that their memoranda have been lost, or that their production is excusable, and they are able at the same time to verify this as being a correct transcript therefrom, there exists no good reason why the book should not go to the jury. 6. According to the bill of exceptions, the plaintiffs introduced evidence tending to prove that the fire occurred on the 3d day of December, 1902; that it started in a warehouse close to the railroad; that a passenger train passed, and that about fifteen minutes afterwards the fire was discovered; that when first seen it was a "little fire-looked like a headlight of an engine at a short distance"; and that it started on the roof of a warehouse. This was about six o'clock in the morning. Plaintiffs also introduced other evidence tending to show that other trains were seen passing there on previous mornings, and shortly after the fire, and that the engines were frequently seen to throw out sparks sufficient at times to set fire to grass along the way; that the engine hauling the same passenger train was at other times seen to emit sparks, some of them of large size; that the passenger train in question was No. 6, but it was not known what engine was attached to it. Under this record, plaintiffs requested the following instruction: "You are the judges of all the facts in the case, and should the defendant offer proof to establish the fact that the engines |