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rules." In some of the circuits, rules upon the subject have been adoptel. 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, froin 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)
(May 4, 1885.)
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 sup
plemental 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, fled 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, Excecutrix, 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 pendeney 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, Executrix, 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 suflicient 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 male 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,
and offered to set off so much of the decree in favor of Todd mentioned in the answer of Smith as would satisfy the demand of the plaintiff.
Woolfolk, whose deposition was taken, testified that since October, 1868, Carlton, on whom the order of the court above mentioned was served, had not been his attorney, and that he himself had never heard of the petition of Todd until after the final decree had been rendered thereon, and that his wife, Lucy D. Woolfolk, had died in the year 1876, four years before the entry of, the decree; that from the year 1856 until her death she had resided in Kentucky, and that he had resided there all his life. The deed of the receiver to Todd for the Belleview plantation was executed on October 28, 1868. It appeared from the evidence that Todd and the appellant Smith, who claimed under him, had been in possession of the mortgaged premises ever since that date.
Upon final hearing, the circuit court, on November 2, 1881, rendered a decree in favor of the plaintiff fur $9,743, to bear interest from the date of the decree, and in default of payment ordered a sale of the mortgaged premises to satisfy the same. From this decree the defendants, Benjamin H. Smith and Springer, administrator of Todd, have appealed.
F. W. Compton and A. H. Garland, for appellants. U. M. Rose, for appellee.
Woods, J. The decree of the circuit court was justified by the facts appearing of record, unless one or both of the defenses set up in the answers of Smith were maintained.
We shall consider first the defense of set-off based upon the record of the proceedings and decree of the circuit court of Chicot county. We are of opinion that the decree of the Chicot circuit court, made on the twenty-eighth day of October, 1878, was, so far as it concerned Joseph S. Woolfolk and Lucy D., his wife, a final decree in the cause, and they were bound to take no notice of the subsequent proceedings, unless they were served with process or entered their voluntary appearance. By that decree the rights of the parties then before the court, as stated in the original bill, and all the assets of the estate of Craig actually or constructively within the jurisdiction of the court, were disposed of. It is true, the receiver was directed by the decree to proceed to collect the available assets of the estate. But, as has been stated, c only a small sum, barely sufficient to pay the receiver's compensation, was collected by him, and this he was allowed to retain by the decree of the court. The petition filed by Todd, and the proceedings thereon subsequent to the decree of October 28, 1868, had no reference to any additional assets collected by the receiver after that date.
If the matter set up in the petition of Todd had been offered as an amendment to the original bill when the latter was on final hearing and Woolfolk and wife were before the court, there is no rule of equity pleading and practice, or of the jurisprudence of Arkansas, by which such an amendment could have been allowed and have become the basis of a decree. Shields v. Barrow, 17 How. 130; Hardin v. Boyd, 113 U. S. 756; S. C., ante, 771; Walker v. Byers, 14 Ark. 246. As was said by this court in Shields v. Barrow, ubi supra: “I is better to require the complainant to begin anew. To insert a wholly different case is not properly an amendment, and should not be considered within the rules on that subject." So that, even if the decree made on the original bill was not final, the petition filed by Todd was so radical a departure from the case made and relief prayed by the original bill as to be a new suit and require service of process on the parties made defendant thereto. It instituted a new litigation on new and distinct issues not raised by the original pleadings, and between parties who were complainants in the original cause.
It is settled that one defendant can not have a decree against a codefend. ant without a cross-bill, with proper prayer, and process or answer, as in an
original suit. Walker v. Byers, 14 Ark. 246; Gantt, Dig. § 4559; Cullum v. Erwin, 4 Ala. 452; Cummings' Heirs v. Gill's Heirs, 6 Ala. 562; Shelby v. Smith's Heirs, 2 A. K. Marslı, 514. It follows, froin the reason of this rule, that if one complainant can, under any circunıstances, have a decree against another upon a supplemental or amended bill, it must be upon notice to the latter. After a decree disposing of the issues, and in accordance with the prayer of a bill, has been made, it is not competent for one of the parties, without a service of new process or appearance, to institute further proceedings on new issues and for new objects, although connected with the subjectmatter of the original litigation, by merely giving the new proceedings the title of the original cause. If his bill begins a new litigation, the parties against whom he seeks relief are entitled to notice thereof, and without it they will not be bound; for the decree of a court rendered against a party who has not been heard, and has had no chance to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other court. Windsor v. McVeigh, 93 U. S. 274.
Upon the original bill, filed in the Chicot circuit court by Todd, it was not possible, therefore, for Todd to get a valid money decree against Woolfolk and his wife without new and adversary pleadings and service of process on Wool. folk, and giving him his day in court. Woolfolk and wife had the right to rely on these principles of law, and were not bound to take notice of the petition of Todd, and the proceedings thereunder. Todd and his counsel appear to have seen the necessity of notice to Woolfolk and his wife, and made an attempt to give them notice of the petition filed by Todd; but the record shows that no lawful notice was served on them. It fails to show notice of any kind. The only service which the defendants assert to have been made on Woolfolk and wife was the service on Carlton, as their attorney, who was not their attorney, but, as he averred, the attorney of Todd, the petitioner, and the mailing to their address by the sheriff of the copy of the order. Conceding that these kinds of service, if executed according to law, were good under the statute of Arkansas, which they are not, they would have been but substituted service, and could not support a personal decree against Woolfolk and wife. Pennoyer v. Neff, 95 U. S. 714; Harkness v. Hyde, 98 U. S. 476; Brooklyn v. Insurance Co. 99 U.S. 362; Empire v. Darlington, 101 U. S. 87.
It follows that the record of the proceedings and decree of the circuit court of Chicot county, subsequent to the decree made in the case of The Creditors of Junius W. Craig v. Emma J. Wright, Executrix, and others, on October 28, 1868, was not binding upon Woolfolk and wife, and could not be received in evidence against them. As this record contained the only proof offered by the appellants of any set-off, in behalf of any one whatever, against the mortgage debt due from Todd to*Woolfolk, which the present suit was brought to enforce, it follows that the defense of set-off pleaded in the answers of the appellants failed for want of proof, even conceding that they were entitled to make the set-off.
It remains to consider the plea of the statute of limitations. The note secured by mortgage, which is the basis of this suit, fell due October 30, 1870, and the suit was brought October 27, 1879. It is insisted that the suit to foreclose the mortgage was, under the law of Arkansas, barred in seven years from the maturity of the note. In the case of Birnie v. Main, 29 Ark. 591, it was declared by the supreme court of Arkansas that “to bar a suit for the foreclosure of a mortgage, there inust not only be an adverse possession for such length of time as would bar an action of ejectment, but there must be an open and notorious denial of the mortgagee's title; otherwise the posses. sion of the mortgagor was the possession of the mortgagee. And in Cold. cleugh v. Johnson, 34 Ark. 312, it was said by the same court that "the possession of a mortgagor is not to be deemed adverse until he makes sonie claim or does some open and notorious act adverse to the rights of the mort