iffs took a correct inventory of their stock on the 28th of February, 1866, which was correctly reduced to writing by one of them in an inventory book; that the prices or values were correctly footed up therein; that at the same time the footings were correctly entered by one of the plaintiffs upon the fly-leaf of an exhausted ledger and afterwards transferred, also by one of the plaintiffs, to the fly-leaf of a new ledger; that neither of the plaintiffs could remember the amount of such inventory or footings, and that both the inventory book and the exhausted ledger had been destroyed. The plaintiffs then offered the entry of the footings on the fly-leaf of the new ledger, which the court received, and in this it was contended there was error.

It will be observed that the footings upon the fly leaf of the ledger were not offered or received as independent evidence. They were accompanied by proof that they were correct statements of the values of the merchandise, and that they were correctly transcribed either from the inventory book or from the fly-leaf of the exhausted ledger, both of which appear to have been originals. How far papers, not evidence per se, but proved to have been true statements of fact, at the time they were made, are admissible in connection with the testimony of a witness who made them, has been a frequent subject of inquiry, and it has many times been decided that they are to be received. And why should they not be? Quantities and values are retained in the memory with great difficulty. If, at the time when an entry of aggregate quantities or values was made, the witness knew it was correct, it is hard to see why it is not at least as reliable as is the memory of the witness. It is true a copy of a copy is not generally receivable, for the reason that it is not the best evidence. A copy of the original is less likely to contain mistakes, for there is more or less danger of variance with every new transcription. For that reason even a sworn copy of a copy is not admissible when the original can be produced. But in this case the inventory witness, at the time of or soon after the transaction. | He must testify that he knew it was correct when he made or read it. Steph. Dig. Ev., Art. 136; Lewis v.Ingersoll, 3 Abb. Ct. App. Dec., 55; Krom v. Levy, 1 Hun, 173; Filkins v. Baker, 6 Lans., 518; Van Buren v. Cockburn, 14 Barb., 181; Halsey v. Sinsebaugh, 15 N. Y., 485; Guy v. Mead, 22 N. Y., 462; Russell v. Hudson Riv. R. R. Co., 17 N. Y., 134; Riordon v. Davis, 9 La., 239; S. C., 29 Am. Dec., 442. Witness may rely upon the accuracy of such memoranda and not his memory, in testifying. Cole v. Jessup, 10 N. Y., 96; S. C., 9 Barb., 395; 10 How. Pr., 515.

Such an original memorandum may be read itself as evidence, if the witness' memory is not refreshed by the paper itself. Marcly v. Shults, 29 N. Y., 348; Halsey v. Sinsepaugh, 15 N.Y., 485; Lapham v. Kelly, 35 Vt., 195.

Copies of original memoranda after proof of the facts therein contained may be read as a statement in detail of what witness has testified. McCormick v. Pa. Cent. R. R. Co., 49 N. Y., 301, 315; Bullock v. Hunter, 44 Md., 416.

Where witness swears he made a list of articles at the time but cannot give details, he may be shown his list and read it. Wilcox Silver Plate Co. v. Green, 9 Hun, 347; Philbin v. Patrick, 3 Abb. Ct. App. Dec., 605.

Witness may be shown, while on the stand, original memoranda, made at time of occurrence, although not by him, and he may refer to copies or abstracts of such memoranda made by him, if they refresh his memory so that he can testify of the original facts without relying on the accuracy of

book and the fly-leaf of the exhausted ledger had both been burned. There was no better evidence in existence than the footings in the new ledger. And we do not understand the bill of exceptions as showing those footings to have been copied from a copy. It does not appear whether they were taken from the inventory book or from the fly-leaf of the old ledger. And it is of little importance, for as those entries were made at the same time, neither ought to be regarded as a copy of the other, but rather both should be considered originals. We do not, however, propose to discuss this exception at length, for we regard it as settled by the decision in Insurance Company v. Weide, 9 Wall., 677 [76 U. S., XIX., 810], that the evidence under the circumstances was properly received. The second and third exceptions are disposed of by what we have already said, and they are unsustained.

There is nothing, also, in the fourth exception. By the policies the assured, after furnishing proofs of loss, were bound, if required, to submit to an examination under oath, and it was stipulated that until such examination should be permitted the loss should not be payable. Of course it is to be understood that the examination contemplated relates to matters pertinent to the loss. In these cases the plaintiffs did submit to an examination, but declined to answer questions respecting the amounts for which they had made settlements with other insuring companies. We are unable to perceive that the questions proposed had any legitimate bearing upon the inquiry, what was the actual loss sustained in consequence of the fire? If the plaintiffs had claims upon other insurers, and compromised with some of them for less than the sums insured, it is not a just inference that their claim against these insurers was exaggerated. A compromise proposed or accepted is not evidence of an admission of the amount of the debt. There was, then, no sufficient foundation laid for the instruction requested by the defendants, that if the jury should believe that the plaintiffs, or either of them, in the course

the memoranda. Huff v. Bennett, 6 N.Y., 337; Howland v. Willetts, 5 Sandf., 221; Sturm v. Atl. Ins. Co., 38 Sup. Ct. (J. & S.), 286, 296, 318; Wilde v. Hexter, 50 Barb., 448.

Opposite party may see anything shown witness to refresh his memory and may cross-examine witness as to same but is not obliged to put it in evidence. Steph. Dig., Art. 137; Peck v. Lake, 3 Lans., 136; Tibbetts v. Sternberg, 66 Barb., 201.

A witness may refresh his memory from any book or paper, if he can swear to the fact from recollection; but if he cannot swear to the fact except from finding it in the paper, the original must be produced. Doe v. Perkins, 3 Term, 749; Tanner v. Taylor, 3 Term, 754; 8 East, 282, 289; 1 East, 760; Maughan v. Hubbard, 8 Barn. & C., 14; Juniata B'k v. Brown, 8 S. & R., 87; Robertson v. Lynch, 18 Johns., 451; Feeter v. Heath, 11 Wend., 477; Smith v. Lane, 12 S. & R., 87; Holladay v. Marsh, 3 Wend.. 142; S. C., 20 Am. Dec., 678; Lapham v. Kelly, 35 Vt., 195; Spann v. Baltzell, 1 Fla., 321; Moots v. State, 21 Ohio St., 653; Newell v. Houlton, 22 Minn., 19.

A witness may testify from written memorandum, though it do not recall the facts to his memory; and such evidence is better than unaided recollection. Pearson v. Wightman, 1 Mill., 336; S. C., 12 Am. Dec., 636; Lapham v. Kelly, 35 Vt., 195; Cross v. Bartholomew, 42 Vt., 206; Lewis v. Ingersoll, 1 Keyes, 357.

Witness in testifying to contents of lost paper may use even a copy of a copy to refresh his memory. Dunlap v. Berry, 4 Scam., 327; S, C., 39 Am. Dec., 413.

of an examination on oath, under the policies, refused to answer any questions by which the defendants could fairly estimate or reasonably infer plaintiffs' real loss in the insured property, and had not before the commencement of the actions answered the questions under oath, the verdict must be for the defendants. There

JOHN M. YOUNG, Appt.,

v.

THE STEAMBOAT KEY CITY, BARGE JIM SHEETS, THE NORTHWESTERN UNION PACKET COMPANY, Claimant.

(See S. C., "The Key City," 14 Wall., 653-661.)

tions.

The fifth exception is to the refusal of the court to instruct the jury that if they believed from the evidence the plaintiffs were requested by the defendants to produce duplicates of invoices of goods purchased by them, the originals of which were alleged by them to be destroyed, and neglected to do so before the commencement of the actions, their right of action never accrued, and that the verdicts must be for the defendants. The prayer for this instruction was founded on the clause in the policy that the assured should produce certified copies of all bills and invoices, the originals of which had been lost, and exhibit the same for examination to any person named by the Company, and that until the proofs, declarations and certificates (stipulated for in case of loss) were produced and examinations and appraisals permitted, the loss should not be payable. The bills of exception state that there was evidence tending to show that the plaintiffs were requested to produce duplicate bills of purchases, but there does not appear to have been any evidence when the request was made, whether be fore the commencement of the actions or after wards, or whether there was neglect or refusal of the plaintiffs to comply. Moreover, the request was for duplicates, and not for certified copies. We cannot, therefore, say there was error in refusing the instruction asked for.

Nor was there error in denying the defendants' third and fourth prayers. It is true the policies stipulated that fraud or false swearing on the part of the assured should work a forfeiture of all claim under them. The false swearing referred to is such as may be in the submission of preliminary proofs of loss, or in the examination to which the assured agreed to submit. But it does not inevitably follow from the fact that there was a material discrepancy between the statements made by the plaintiffs under oath in their proofs of loss, and their statements when testifying at the trial that the former were false, so as to justify the court in assuming it, and directing verdicts for the defendants. It may have been the testimony last given that was not true, or the statements made in the proofs of loss may have been honestly made, though subsequently discovered to be mistaken. It is only fraudulent false swearing in furnishing the preliminary proofs, or in the examinations which the insurers have a right to require, that avoids the policies, and it was for the jury to determine whether that swearing was false and fraudulent.

The remaining two assignments of error are not pressed, and it is properly conceded that the court could not lay down as a rule of law the mode of computation designated in the prayers for instruction.

The judgment in each case is affirmed.

Cited 49 Wis., 504; 62 Mo., 239; 26 Am. Rep., 379 (28 Gratt., 508).

lay will defeat-purchaser for value.

1. While the courts of admiralty in cases for the enforcement of maritime liens are not governed by any statute of limitation, they adopt the prinment of them will, under proper circumstances, ciple that laches or delay in the judicial enforceconstitute a valid defense.

2. No arbitrary or fixed period of time has been will defeat such a suit must in every case depend established as an inflexible rule,but the delay which upon the peculiar equitable circumstances of that case. 3. Where the lien is to be enforced to the detri

ment of a purchaser for value, without notice of the lien, the defense of laches will be held valid under shorter time than when the claimant is the owner at the time the lien accrued. [No. 49.] Argued Nov. 18, 1872.

Decided Dec. 9, 1872.

APPEAL from the Circuit Court of the Unitconsin.

ed States for the Eastern District of Wis

The libel in this case was filed in the United States District Court for the District of Wisconsin, by the appellant, to enforce a lien against the vessel for breach of contract of affreightment. A decree having been entered dismissing the libel, the libelant took an appeal to the circuit court, by which the said decree was affirmed; whereupon the libelant took a further appeal to this court.

The case is further stated by the court.
Mr. N. J. Emmons, for appellant:

The court erred in holding the claim of libelant a stale one, when there was no allegation or proof that he had knowledge that the vessel had been within the jurisdiction of the court during the period elapsing since the accruing of the demand and the commencement of suit. :

The Sarah Ann, 2 Sumn., 212; 2 Pars. Mar. Law, 664, n. 3.

The court erred in dismissing the libel, when liability of the original owners and of the vessel and barge in rem was confessed; no equitable circumstances appearing to show why the lien should be deemed to have been waived or barred for staleness.

The Bolivar, 1 Olcott, 474; The Mary, 1 Paine, 180; The Batavia, 2 Dod., 500; The Utility, 1 Blatchf. & H., 218; Willard v. Dorr, 3 Mass., 161; The Eastern Star, 1 Ware, 185; Leland v. The Medora, 2 Wood. & M., 92; Pack ard v. The Louisa, 2 Wood. & M., 48: The Chusan, 2 Story, 455; Joy v. Allen, 2 Wood. & M., 304; Mason v. Crosby, Davies, 313; The Sea Lark, 1 Sprague, 571; The Gen. Jackson, 17 Law Rep., 324; The Admiral, 8 Law Rep., 91.

The authorities cited are perhaps unnecessarily multiplied. They all prove and illustrate the proposition involved in this assignment of error.

The mere conveyance of a vessel, even to an innocent purchaser without notice, will not of itself necessarily disturb a maritime lien. Shepard v. Taylor, 5 Pet. 675.

In order to defeat the lien, some other cir

that period the vessel was plying between this port and the ports of Maine, as often as once a month, giving the libelant ample opportunity to enforce his claim, had he seen fit, long be fore the sale of the vessel to the present claimant. It must, therefore, be held that the libelant has waived his lien."

In the case at bar, nearly two years elapsed after the loss before the transfer to claimant, and about three and a half before the libel was filed. None of the cases above cited show as great delay in attempting to enforce liens. No excuse for the delay is shown, and pending this delay, the boat was transferred to the claimant without notice of the pretended lien. The case is, therefore, within the authorities, and the libel was rightfully dismissed.

The transfer of the boat and barge to the claimant was a legal and bona fide transfer, and was in no way impeached by the testimony taken on appeal in the circuit court.

It was not colorable or fraudulent. The property of the Northwestern Packet Company was paid for in stock of the new Company, which was a good and valid payment, as much so as if paid in money. The new Company was to pay the debts of the old out of the earnings of the new, in certain proportions, but in no other way. Dividends were withheld and applied for that purpose.

Mr. Justice Miller delivered the opinion of the court:

This is a suit in admiralty to enforce a lien against the vessel for a failure to perform a contract of affreightment. The defense was, that the lien was lost by lapse of time, to wit: three years and a half between the period when the cause of action accrued and the commencement of the suit; and that defense was sustained by the circuit court. A change took place in the ownership of the vessel during that interval, which is relied upon as strengthening the defense.

The authorities on the subject of lapse of time as a defense to suits for the enforcement of maritime liens are carefully and industriously collected in the briefs of counsel on both sides, to which reference is hereby made without specifying them more particularly.

We think that the following propositions as applicable to the case before us may be fairly stated as the result of these authorities:

1. That while the courts of admiralty are not governed in such cases by any Statute of Limitation, they adopt the principle that laches or delay in the judicial enforcement of maritime liens will, under proper circumstances, constitute a valid defense.

2. That no arbitrary or fixed period of time has been, or will be, established as an inflexible rule, but that the delay which will defeat such a suit must in every case depend on the peculiar equitable circumstances of that case.

3. That where the lien is to be enforced to the detriment of a purchaser for value, without notice of the lien, the defense will be held valid under shorter time, and a more rigid scrutiny of the circumstances of the delay, than when the claimant is the owner at the time the lien accrued.

The counsel for the appellees argue that the libel in the present case was rightfully dismissed

under this last proposition; and we are of opinion that if the claimants had shown an ordinary case of purchase and payment without notice, the lapse of time would protect them. While. on the other hand, we are of opinion that if the claimant had been the owner when the lien accrued, it would not be a good defense in this instance.

We must, therefore, inquire into the special circumstances under which the claimant became the ownerof the vessel against which the lien is asserted. At the time of the loss of the wheat in which this claim originates, the vessel that had it in charge, The Key City, was owned by a Corporation called the Northwestern Packet Company, which had this and several other steamboats engaged in the navigation of the Upper Missippi River. There was also, at the same time, another and a rival corporation engaged in the same business in the same waters, known as the La Crosse and Minnesota Steam Packet Company.

After the loss of the libelant's wheat, these two Companies united their stock in trade, their vessels and their barges and other property, and formed a new Corporation, the corporators of which were taken exclusively from those in the two old Companies; and to the new Corporation they gave the name of the Northwestern Union Packet Company. To this Company all the property of the two other Companies was transferred by appropriate instruments.

It does not appear whether the La Crosse and Minnesota Company owed debts or not, nor what became of them. It was probably thought immaterial to the questions before us. But it does appear that the Northwestern Company, the owner of The Key City, was largely indebted, and that this was well known to all the parties. Not only was it well known, but provision was made for the payment of the debts generally of that Company by the newly formed Company, out of a fund to come within its control. The nature of that agreement was this: certificates of stock of the value of the boats, barges and other property of the Northwestern Company merged in the new Company, were issued; but on their face they recited that no dividends would be paid on such stock until the indebtedness of the Northwestern Company should be paid out of the proportion of the net profits which the shareholders of that Company would otherwise be entitled to. These facts show that there was no sale of the property of one of these original Corporations to the other, but that they agree to unite their property and their interests, and for convenience assumed a new corporate name; that in doing this they recognized a large and undefined indebtedness on the part of the Northwestern Company, and provided for its payment out of the earnings otherwise payable to that Company. No doubt these debts were most of them, like the present one, liens on the property of that Company, and known to be so by all who united in the transaction. And, finally, that neither the stockholders of the La Crosse and Minnesota Company, nor of the new Corporation, have ever parted with or paid any money or other thing of value for The Key City, otherwise than by this consolidation of the Companies into one; and it is not apparent, nor even a reasonable presumption, that if the new Company has to