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short whistles given by the Morgan was not, under the circumstances of the case, a fault; and if the starting of the Cotton Valley's engines and sheering to starboard when the Morgan was upon them was an error, it was an error of judgment in extremis, not putting the boat in fault."

Upon these facts a decree was rendered against the Morgan, and her owners and stipulators, for the value of the Cotton Valley, and for the value of the personal property belonging to Kouns, the same as in the district court, and also for the value of the stores, supplies, etc., set forth in the supplemental libel, $1,376.16. From that decree this appeal was taken.

"

The record contains a bill of exceptions, which shows that in the progress of the trial in the circuit court the defendants offered in evidence a certified copy of "the finding of the board of local inspectors of steam-vessels, New Orleans, December 18, 1878, being their decision in the case of the collision between the steamers Cotton Valley and the Charles Morgan, and signed by C. B. Johnson and J. A. Moffat, United States local inspectors. They also offered certain other documents connected with that proceeding, including an appeal to the district inspectors and their decision thereon. To the introduction of this evidence the libelants objected, and their objection was sustained. To this ruling the claimant of the Morgan excepted, and the exception was made part of the record.

It is also shown, by another bill of exceptions in the record, that, after the depositions of Albert Stein, Harry W. Stein, Sylvester Doss, John B. Evelyn, and Livingston McGeary had been read on behalf of the claimant of the Morgan, the libelants, for the purpose of impeaching and contradicting their evidence, offered certain depositions of the same witnesses used on the trial of certain other suits, growing out of the same collision, between one Menge and some insurance companies, to which the claimant was not a party. To the introduction of this evidence the claimant objected, on the ground that no basis for offering said purported depositions had been laid, it not having been shown or pretended that said purported depositions were ever submitted to the said witnesses, or otherwise verified as their evidence in said causes; but as, "in the cross-examination of each of said witnesses in this case, the attention of the witness was called to the evidence given by him in the cases of Menge v. Insurance Cos., * * * and the witnesses were specifically examined as to the correctness of said evidence, and admitted having testified therein," and "no objection was made that the evidence offered was not the evidence of said witnesses respectively, or that the same had been improperly taken or reported," the depositions were admitted for the purpose for which they were offered. The cross-examination referred to is not set forth in the bill of exceptions. To the admission of this evidence the claimant excepted. The following positions are taken by the appellants: (1) That the findings of fact are not sufficient to support the decree; (2) that leave to file the supplemental and amended libel should not have been granted, and consequently that the decree should not have included the value of the stores, supplies, and money belonging to the Cotton Valley, which were lost; (3) that the record of the proceedings and findings of the board of local inspectors, and the documents connected therewith, were improperly excluded as evidence; and (4) that the depositions taken in the Menge Cases were improperly admitted.

1. The objection to the sufficiency of the findings is based on rule 2 of the board of supervising inspectors of steam-vessels, which is as follows: "Should steamers be likely to pass near each other and these signals should not be made and answered by the time such boats shall have arrived at a distance of 800 yards from each other, the engines of both boats shall be stopped; or should the signal be given and not properly understood, from any cause whatever, both boats shall be backed until their headway shall be fully checked, and the engines shall not be again started ahead until the proper signals are made, answered, and understood. Doubts or fears of misunderstanding sig

nals shall be expressed by several short sounds of the whistle in quick sucThe particular specifications of insufficiency are (1) that it does? not appear that the signals for passing had been made and answered be-* fore the boats came within 800 yards of each other; and (2) that the failure of the Cotton Valley to understand the signal of doubt or fear made by the Morgan was a fault on her part. There is no complaint in the pleadings as to the time when the Cotton Valley made the first signal, and neither party at the hearing below seems to have considered that an important fact in the case. So long as it was made and assented to by the Morgan without any signal of misunderstanding, it will be presumed to have been at the proper distance, as nothing appears to the contrary. The findings show affirmatively that it was understood and assented to by the Morgan. As the "several short sounds of the whistle" were only to be given in case of doubt or fear of a misunderstanding of signals, it was not necessarily a fault in the Cotton Valley to misinterpret their meaning when made by the Morgan, so short a time after her assent had been given to the signal of the Cotton Valley to pass to the right.

2. Admiralty rule 24 provides that in all informations and libels, in causes of admiralty and maritime jurisdiction, "new counts may be filed, and amendments, in matters of substance, may be made, upon motion, at any time before the final decree, upon such terms as the court shall impose." 3 How. xiv. In The Lucille, 19 Wall. 74, it was decided that an appeal in admiralty from the district to the circuit court "has the effect to supersede and vacate the decree from which it was taken. A new trial, completely and entirely new, with other testimony and other pleadings, if necessary, or, if asked for, is contemplated,—a trial in which the judgment of the court below is regarded as though it had never been rendered. A new decree is to be made in the circuit court." Clearly, under this decision, after an appeal is taken, and the decree of the district court vacated, a motion to amend, made while the case is pending in the circuit court for a new trial on its merits, will be before the final decree; and, under the operation of the rule, we have no doubt the circuit court may, in its discretion, permit an amendment of the libel, so as to include a claim for damages growing out of the original cause of action, and litigated in the court below, but rejected because not specified in the pleadings. It is true that in the case of The North Carolina, 15 Pet. 50, it was decided that a libel could not be amended after an appeal, so as to bring in a new claim for damages; but this was before the adoption of the admiralty rules, the decision having been made in 1841, and the rules not taking effect until September 1, 1845. 3 How. xix. The act authorizing the rules was passed August 23, 1842, c. 188, § 6, (5 St. 518,) and it is quite possible rule 24 was suggested by that case. It has long been the practice of the circuit courts to allow such amendments. Weaver v. Thomson, 1 Wall. Jr. 343, decided in 1849 in the third circuit; Lamb v. Parkman, 21 Law Rep. 589, first circuit, in 1858; The C. H. Foster, 1 Fed. Rep. 733, same circuit; The Morning Star, 14 Fed. Rep. 866, seventh circuit; The Oder, 21 Blatchf. 26, S. C. 13 Fed. Rep. 272, second circuit; The Montana, 22 Blatchf. 372, S. C. 22 Fed. Rep. 715, 730, same circuit.

In Lamb v. Parkman, supra, Mr. Justice CURTIS, then holding the circuit court, said: "The twenty-fourth rule, made by the supreme court to regulate the practice of the instance courts of admiralty, applies to this as well as to the district court. Pursuant to it, amendments in matters of substance may be made on motion, at any time before the final decree, upon such terms as the court shall impose. What amendments shall be allowed, under what circumstances and supported by what proofs they must be applied for, and in what form they must be incorporated into the record, are left to the sound discretion of the court, to be exercised in each case, or to be regulated by written rules of practice, so far as the court may find it useful to frame such

rules." In some of the circuits, rules upon the subject have been adopted. The second circuit is among them. In the case of Lamb v. Parkman, Mr. Justice CURTIs, after saying that there were no written rules in his circuit, proceeded to state what, from the course of decisions in similar or analogous cases, would, in his opinion, be proper guides to the exercise of the discretion of the court. If proper care is taken to avoid surprise, and to confine amendments in the appellate court to the original subject of controversy, so as not to allow matters outside of the general scope of the pleadings below to be brought in, it is difficult to see how any possible harm can come from permitting a libelant to amend his libel in such a way as to give him the full benefit of his suit as it has been begun.

3. The finding of the board of local inspectors, and the documents connected therewith, were properly excluded. The proceeding in which the finding was made was instituted under section 4450 of the Revised Statutes, for an investigation of the facts connected with the collision, so far as they had a bearing on the conduct of the licensed officers on board the boats, and at most it only showed the opinion of the board upon the subject from the evidence adduced before them. It was offered, to use the language of counsel, "as tending to affect the evidence offered by the libelants to show that the Cotton Valley was in her proper position in the river, and had proper watches and lights set at the time of the collision." Clearly it was not admissible for any such purpose.

4. The specific objection to the depositions in the Menge Cases, that were offered for the purpose of impeachment, is that they were not exhibited to the witnesses whose testimony was to be impeached upon their cross-examination, or otherwise verified, as the evidence of the witnesses in the former causes. The rule is that the contradictory declarations of a witness, whether oral or in writing, made at another time, cannot be used for the purpose of impeachment until the witness has been examined upon the subject, and his attention particularly directed to the circumstances in such a way as to give him full opportunity for explanation or exculpation, if he desires to make it. Conrad v. Griffey, 16 How. 46. If the contradictory declaration is in writing, questions as to its contents, without the production of the instrument itself, are ordinarily inadmissible; and a cross-examination for the purpose of laying the foundation of its use as impeachment would not, except under special circumstances, be allowed, until the paper was produced and shown to the witness while under examination. Circumstances may arise, however, which will excuse its production. All the law requires is that the memory of the witness shall be so refreshed by the necessary inquiries as to enable him to explain, if he can and desires to do so. Whether this has been done is for the court to determine before the impeaching evidence is admitted. Here the cross-examination, on which the right to use the depositions depended, has not been put into the record, but the bill of exceptions shows "that in the cross-examination of each of said witnesses the attention of the witness was called to the evidence given by him in the cases of Menge, * * * and the said witnesses were specifically examined as to the correctness of said evidence, and admitted having testified therein." From this, and the failure to incorporate the cross-examination into the bill of exceptions, we must presume that ample foundation was laid for the introduction of the evidence, unless the failure to show the depositions to the witnesses at the time of their cross-examination was necessarily and under all circumstances fatal. The objection is not to the cross-examination as to the contents of the depositions without their production, but to the admission of the depositions after a cross-examination which was, as we must presume, properly conducted in their absence. It is also stated in the bill of exceptions that "at the offering no objection was made that the evidence offered was not the evidence of said witnesses respectively, or that the same had been imperfectly taken and

reported." This shows that the depositions must have been sufficiently identified as the evidence of the witnesses in the former cases.

In the case, as it comes to us, we find no error. The decree of the circuit court is affirmed, and interest allowed.

(115 U. S. 148)

SMITH and another, Adm'r, etc., v. Woolfolk.

(May 4, 1885.)

1. EQUITY PRACTICE-PARTIES TO ACTION-RIGHTS INTER PARTES.

One defendant cannot have a decree against a co-defendant without a cross-bill, with proper prayer and process, or answer, as in an original suit; and if one complainant can, under any circumstances, have a decree against another upon a supplemental or amended bill, it must be upon notice to the latter

2. STATUTE OF LIMITATIONS-ADVERSE POSSESSION-FORECLOSURE OF MORTGAGE - LAW OF ARKANSAS.

In Arkansas the possession of land by a mortgagor is not to be considered adverse until he does some act or makes some claim notoriously adverse to the rights of the mortgagee, and without this the right of the latter to foreclose is unaffected by the statute of limitations.

Appeal from the Circuit Court of the United States for the Eastern District of Arkansas.

The bill in this case was filed by Joseph S. Woolfolk to foreclose a mortgage executed to him by William H. Todd, the intestate of L. H. Springer, one of the appellants, upon the Belleview plantation, situate in Chicot county, Arkansas.

The record discloses the following facts:

Junius W. Craig, a citizen of Arkansas, and the owner of the Belleview plantation, had, on December 5, 1856, mortgaged it to Mrs. Lucy D. Craig. the widow of his brother, to secure $41,666, owing by him to her. Some time after the date of the mortgage, Mrs. Craig intermarried with Joseph H. Woolfolk, the appellee. Junius W. Craig died on September 17, 1858. On March 16, 1866, Joseph H. Woolfolk and Lucy D., his wife, William H. Frazier, assignee of A. D. Kelly & Co., William H. Todd, and others, in behalf of themselves and all other creditors of the estate of Junius W. Craig, filed their bill in equity in the circuit court of Chicot county, Arkansas, against Emma J. Wright, executrix of the last will of Junius W. Craig, and others, for the settlement of his estate. The case is styled in the record "The creditors of Junius W. Craig v. Emma J. Wright, Executrix, and others." The bill alleged that many debts had been proven against the estate, amounting in all to the sum of $236,289.34, among which was the debt above mentioned due to Mrs. Lucy D. Woolfolk, a debt due to Frazier, assignee of A. D. Kelly & Co., for $45,607.76, and a debt due to Todd for $47,181.60. The prayer of the bill was that the lands of the estate might be sold and the proceeds distributed among the creditors.

On August 30, 1867, the plaintiffs in the original bill, including William H. Todd and Joseph S. Woolfolk and Lucy D., his wife, filed a supplemental bill of revivor, in which, among other things, they averred the pendency of an intervention, filed by Woolfolk and wife in the chancery court of Jefferson county, in the state of Kentucky, praying to have the debt due them satisfied out of the property of the estate of Craig, in Kentucky. The supplemental bill prayed the same relief as the original bill. The lands of the estate were brought to sale in accordance with the prayer of the bill, and most of them, including the Belleview plantation, were purchased by Todd. Upon a report of the sale, the share of Mrs. Woolfolk in the proceeds was found by the court to be $9,831, and Todd, having paid a small part of this sum, Woolfolk, for the residue, took the two notes of Todd, payable to himself, for $4,243.20 each, to secure which Todd executed to him a mortgage on the

Belleview plantation. The court having distributed the proceeds of the sales of the lands, directed the receiver to collect the available assets of the estate, and report to the next term of the court. By his reports, subsequently made, it appeared that the receiver had been able to collect only the sum of $157, which the court allowed him to retain as his compensation, so that nothing remained of the original cause in which Woolfolk and his wife were in any way concerned.

Afterwards, on April 12, 1869, during a vacation of the court, Todd, who had become by assignment, the owner of the claim of A. D. Kelly & Co., filed a petition in the case of The Creditors of Craig v. Emma J. Wright, Execu trix, and others, in which he alleged, among other things, that Woolfolk and wife had brought suit in the chancery court of Louisville, Kentucky, against Todd and the heirs of Craig, to subject to the payment of the balance due Mr. Woolfolk from the estate of Craig certain real estate in the city of Louisville. The petition averred that the proceeds of the Louisville real estate should be first applied to the satisfaction of the claim of A. D. Kelly & Co., which had been classed as a preferred debt by the probate court in Arkansas, and prayed that Woolfolk and wife might be required to account for any proceeds of the Louisville real estate received by them, according to the rights of creditors, as declared by the Arkansas probate court; the purpose of the petition being to subject the money arising from the sale of the Louisville property to the payment, first, of the claim of A. D. Kelly & Co., owned by Todd. Upon this petition the Chicot circuit court made an order that Woolfolk and wife answer the same on or before the third day of the next term, and that in default thereof the petition should be taken as confessed, and that service of the order, "by letter or on attorneys of said parties, be sufficient service thereof." The statutes of Arkansas do not authorize service of process in either of the methods directed by the order. Nevertheless, the sheriff returned that he had served the order by mailing a copy thereof to Woolfolk and wife, directed to their address, without naming it. C. H. Carlton, upon whom, as attorney of Woolfolk and wife, it appeared that a copy of the order had been served, filed a writing in the case, in which he said he was not their attorney, but the attorney of Todd, the petitioner, and disclaimed any interest in the cause on behalf of Woolfolk. Upon these facts the court decided that there had been sufficient service of the order. Todd having died, the Chicot county circuit court, on January 23, 1880, by its order entered in the case of The Creditors of Craig v. Emma J. Wright, Executrix, and others, made L. H. Springer, his administrator, plaintiff in his stead; and upon the same day decreed, among other things, that said L. H. Springer, as administrator of Todd, "have and recover of and from Lucy D. Woolfolk and Joseph H. Woolfolk the sum of $37,995.65 out of the said funds and assets in their hands" of the estate of Junius W. Craig, "and that payment thereof be enforced by execution as upon executions at law." This decree was based upon the report of a master who returned into the court none of the evidence, if there was any, upon which it was based. Before the decree just recited was made, Woolfolk, on October 27, 1879, brought in the circuit court of the United States for the Eastern district of Arkansas the present suit, to enforce, by the foreclosure of the mortgage made to secure them, payment of one of the two notes for $4,243.20, (the other having been paid,) given by Todd to him for the share of Mrs. Woolfolk in the proceeds of the sale of the Belleview plantation. L. H. Springer, the administrator of Todd's estate, and Benjamin H. Smith, who before the death of Todd had acquired all his title to the mortgaged premises, were made defendants. Smith in his answer insisted upon his right to set off the decree rendered against Woolfolk and wife in favor of the administrator of Todd's estate by the circuit court of Chicot county, on January 23, 1880, and set up the seven years' statute of limitations of the state of Arkansas in bar of the suit. Springer, the administrator, adopted the answer of Smith,