The book offered as a memorandum to refresh the recollection of the witness was rightly excluded from •his inspection. Inasmuch as he had never seen it before, it could not be the means of reviving his memory of past transactions. It was in effect nothing but a method of suggesting to him the fact concerning which he was called to testify, and does not come within any of the tests by which the use of memoranda to aid the recollection of a witness is regulated and governed. 1 Greenl. Ev. §§ 436-439.

*329The contract by which the mining association was created, and under which the defendant served as a substitute for the plaintiffs on the voyage to California and after the arrival of the company in that country, is obscure and indefinite in its provisions ; but upon careful consideration we are of opinion that the construction put upon them by the court below was correct.

Exceptions overruled.