DEERE V. COUNTY OF RIO GRANDE.
letters were sent] to mean that they were mailed in the usual manner. n Steam-Ship 00; v. Otia, 81.Ip1'a. The motion for anew trial is denied.
WITNBSs-;-REI!'BESH1NG MEMORy-MEMORANDA.. A3J.y or memoranda made by the witness, or by his direction, at the time of the transaction, or soon afterwards, or read and examined by him he at the time having personal knowledge of the ness thereof, may be referred to, to refresh the memory of the witness. Price v. Garland, (N. M.) 6 Pac. Rep. 472. A witness who has taken memoranda of facts at or about the time of the occurrence, and who knows them to be correct, may hold IIUch memoranda, in his hand, and testify to the facts as facts, although he at the time admits that.he dQEls not remember the occurrence of the facts. Lipscomb v. Lyon, (Neb.) 27 N. W. Rep. 731. A, may use a paper containing a list of items to refresh his memory, when he knOWII the entry to have been correct when he, made it, eveD, though the paper is not admis!rlble as an entry made in the course of business in a book of original entries.' MeM v. White., (Pa.) 8 At!. Rep. 918. A witness may refer to and read the items in his pr'ivatecash.book as memoranda of payments to refrellh his reoollectioll. , Converse v. Hobbs, (N. H.) 5 At!. Rep. 882. A plaintiff, testifying in hia OWT' behalf, can refresh his recollection, when he knows the facts, by reading from hill bill of particulars, when that is a duplicate of the account rendered, and on whic;h he sues" even tho]1gh it was copied by hlll clerk from entries in his book, as to which he cannot say, Without seeing them, whether or not he made them 'himself. Hudnutt v. Comstock, '(Mich.) 16 N. W. Rep. 157. Where the items are numerous, and therefore diftleult to be retained in the memory, the court, in its discretion, may permit a reference to memoranda proven to be correc.EJ.!loth as to items and their values. Wise v. Insurance Co.,(N. Y.} ,4 N. E. Rep. 684. w nere an attorney who was present ,at the former triaJ" rellresenting one of tlleparties the case, is ca1ledto give in evidence the testimony of a deceased witness at that trial, he may refresh his recollection from the bill of, exceptions, or read from the bill of exceptions purpClrting to contain the testimony of the deceased witness at the former trial, if he shows that, he examined the bill, and ll,8sisted in its preparation at the time it was made and knew· when' the matters therein contained were fresh in his memory, that the bili stated .ceased witness testWed to on the fOrmer trial. Railroad C(J. v. Jones, (Kan.) 8 Pac. Rep. 730. If a condUctor of a railroad train be sworn, he may use a written statement, nIade atthe time of an accident under consideration, as to how itoccurred, to refresh hismemory. RaUw", Co.v. May, (N. J.) 5 Atl. Rep. 276. See, also, on the gqneral subjeot as to when are admissible to refresh tne memory of a witness, U.S. v. Ten,ne,y, (Ariz,) 8 Pac. ReP 29,5; Morris v. Lachman,' (Cal.) rd, 7!l9;paige, v. Carter, .. (Cal.) 2 Pac. Rev. ,260; People v.LeRoy,(Cal.) 4 Pac. Rep. 649; PinSchowers (Nev.) 1 Pac. Rep. .
(Ct'rcuit Vourt, D. Colorado.
January 18, 1888.)
TAKE AWAY REMEDY. Tbe right of a creditor to enforce by mand",mU8 tbe levy and collection of a poll·tax. if necessary for the payment of his debt, il not abridged by the subsequent repeal of tbe act authorizing sucb tax.
Application for Writ of MandarnWl. This was an application by Charles Deere for a. writ of mandamWl to compel the board of county commissioners of Rio Grande county, Colorodo, to levy a tax. The defendant answered, and plaintiff filed demurrer thereto. Well8, McNeal & Taylor, for plaintiff. W. M. Maguire and E. F. Richardscm, for defendant.
, FEDERAL REPORTER.
BREWEn, J. In Deere ,v. Board of County Com'rs, which is a petition in 'fIULndamus to compel the defendant to levy taxes to pay a judgment, the defendant has filed an to petition, which presents this state of facts: The judgment is based upon indebtedness created in 1874. At that time there was a law in force authorizing the county commissioners to levy a poll-tax, according to their discretion, both as to amount and the purposes for which the tax collected should be used. The law authorizing that was subsequently repealed; and there is to-day no law in force authorizing the levy and collection of poll-tax. The answer sets up that the county commissioners each year are levying, and will continue to levy, a real-estate tax to the full extent allowed by law, and that they are ready to give the plaintiff a warrant on the county treasury payable to his order. That ,has been tried once, but the plaintiff received no money, and sued over, and got a second judgment on the warrant issued to him, which he is now seeking in this way to collect. It is sufficient to say that the collection of the real-estate tax apparently will work no payment to this plaintiff of the judgment; and it is well settled by repeated decisions of the supreme court that any authority which exists in the comity Commissioner!! to levy and collect taxes to satisfy a debt at the time it is created becomes a part and parcel of the contract; and if there is no other recourse,-no other remedy,"':"'the judgment creditor may avail of that authority although it may since have been taken away, by statute. In other words, if, to-day the legislature gives to a cOUIity the power to levy two cents of taxation, and that county creates a debt,and the next year the legislature takes away the power, or reduces it to one cent, the creditor has a right to insist, if necessary for the paymentof ,his debt, upon the levy of a two-cent tax. The legislature, by abridging the power, cannot thereby destroy the value of the claim against the county. The demurrer to the answer will therefore be sustained, and the plaintiff will be entitled to a 'fIULndamus directing the county commissioners to levy a poll-tax. It is stated, and I suppose there is no question about it, that while this is a small judgment, the population and wealth of the county are also quite small. In view of that, the order will not be to levy and collect in one year a poll-tax sufficicmt to pay this judgment, but in two years.
BOD ART V. SCHELL.
BODART V. SCHELL
et al., (two cases.)
(Oircuit Oourt, S. D. New York. January 13,1888.)
CUSTOMS DUTI;ES-AcTION TO RECOVER BACK-PROTEST.
In the absence evidence of the entry of a protest. in writing, as required by the act of 1845, (Rev. St. U. S. 3011.) a verdict for plaintiffs in an action to recover back excess of duties will be set aside, and a new trial granted.
At Law. On motion for new trial·· Two actions brought by Edward Bodart, sole survivor of C. Morlot & Co .. against Robert Schell and others, executors of Augustus Schell, late collector of customs, to recover back excess of duties paid under protest. A trial by jury was had,and verdict rendered for plaintiff. The district attorney moved for new trials, and plaintiff offered the following stipulation: The plaintiff in each of the above-entitled actions hereby offers to stipulate that the motion for a new trial, made by the district attorney, in each of the above-entitled be granted on the follOWing conditions: The district attorney to stipulate in writing: (1) That he will produce on the new trials to be had the entries and protests made by C. Morlot & Co. on their importations by the following vessels: The Challenger, August 15, 1857; America, July24, 1858; Mercury, July 24, 1858; Arabia, July 30,1858; Vanderbilt, August 2, 185!:!; Arago, August 10, 1858; Fulton, January 5,1859: Ariel, June 11,1859: Vanderbilt, July 8,1859; Al'ago, July 14,1859: Ariel, July 22, 1859: Vanderbilt, September 27, 1859; Ariel, October 18, 1859; Arago, :February 16, 1860: Van!lerbilt, July 17,1860; Admiral, August 2, 1860;lllinois, August 13, 1860. (2) On failure to produce on such new trials the said entries and protests, or either of them, that he will admit that the signatures to such entries and protests not produced were in the proper handwriting of C. Morlot & Co. (3) That such trials shall be had not later than Februal11, 1888. Dated New York. January 3, 1888. ALMON W. GRISWOLD, PUIs. Atty. Stephen A. Walker, U. S. Dist. Atty., for the motion. Almon W. Griswold, contra.
LACOMBE, J. Before the argument of these motions, plaintiff proffered the annexed stipulation, which.defendant declined to accept. Motions are now made for new trials, on the ground that no proof was given upon the trials that the protest to the entry by the Challenger, of August, 1857, was signed by the plaintiff's firm, or by any member thereof, or by any authorized agent, as required by the protest act of 1845. Contrary to the impression formed at the argument, I am of the opinion that both motions must be granted. Upon re-examining the testimony of Mr. Stanwood in the action first tried, there does not seem to be such a variance between it and his later evidence as to warrant a different disposition of the two motions. The legal propositions advanced by the plaintiff are undoubtedly sound; but the facts as disclosed on the record are not sufficient to warrant such an application of them as will the verdict. The protest required by the act of 1845 must be