A witness as to the price of milk at a giv en time may refresh his memory from news papers shown to be the standard authority on the exchange price of milk ; Blanding v. Cohen, 184 N. Y. 538,• 76 N. E. 1089; 'so of a witness who testified that a certain book, was the only and best evidence of the grain Mar ket,•and who saw such book and remembered that he knew its quotations on day to be correct, although he had no independent rec of the facts in it; Rogers v. Feni more (Del.) 41 Atl. 886.
A physician may refresh his memory as to the condition of a patient from a memo randum made at the time of a visit ; Bailey v: Warner, 118 55 C. C. A. 329. ; • One who testified that he had no recol lection. of a' medical examination made by him for an application for life insurance and that•an. inspection bf the application did not refresh his memory, although he. could state that' the statements in the application were true when made, was allowed to hse the pa per; Holden v. Co., 191 ' Mass. 153, 77 N. E. 309: • - • A' memorandum made by a witness the day after a but while 'he was com pleting it, may be used; Sibley WarehouSe Storage Co. v. Durand' &" Kasper Co., 200 354, 65 N. E. 876. A MeMorandum made' of time of the factsrin question and knoWn then to be correct may be used;- Johnson Neb. (Unof.) 699, 95 N. W. 808; A witness may use a' memorandum in -his Own handWriting; Smith v.• Piekands,-148 Mich.. 558; 112 N. W. 122.
Where a witness testified that he would not have made a record if it had not beed true, he may use the record, though unable to recall the facts; Franklin v. R. Co:, 74 S. C. 332, 54 S. E. 578.
A memorandum made by another may be used if the witness saw it while • the facts were fresh and knew that the memorandum was correct; The Queen of the Pacific, 180 U. S. 49, 21 Sup. Ct. 278, 45 L. Ed. 419; it is not necessary that the memorandum should have been made by the witness ; Tex as & P. Ry. Co. v. Birdwell (Tex.) 86 S. W. 1067; so where the statements were made before the witness; State v. Magers, 35 Or. 520, 57 Pac. 197; but it must appear that it was read by him at or about the time the transaction was fresh in his memory; Eman uel v. Casualty Co., 47 Misc. 378, 94 N. Y. Supp. 36.
A memorandum book, out of which some of the entries bearing on the cause of action have been torn after the action was com menced, is not admissible in evidence ; John son v. Fry, 88 Va. 695, 12 S. E. 973, 14 S. E.
183. Memoranda, if admissible at all as in dependent evidence, cannot be admitted when it is not shown that they were made at the time of the transactions referred to, or why they were made; Bates v. Preble, 151 U. S. 149, 14 Sup. Ct. 277, 38 L. Ed. 106.
A witness may refresh his memory by ref erence to a copy of a memorandum made by him, only when it is first shown that the copy is correct; Mayor and Aldermen of City of Birmingham v. McPoland, 96 Ala. 363, 11 South. 427.
After a memorandum book has been in troduced in evidence without objection, no objection will lie to its use as evidence ; nor to a witness using it as a basis for the facts to which he testifies, on the ground that he did not make the entries; Manchester Assur. Co. v. Navigation Co., 46 Or. 162, 79 Pac. 60, 69 L. R. A. 475, 114 Am. St. Rep. 863. The matter le largely discretionary with the trial judge; Michigan Fire & Ins. Co. v. Wich, 8 Colo. App. 409, 46 Pac. 687.
In Insurance. A clause in a policy limiting the liability of the insurer.
Policies of insurance on risks of trans portation by water generally contain excep tions of all liability from loss on certain ar ticles other than total, or for contributions for general average; and for liability for particular average on certain other articles supposed to be perishable or specially liable to damage, under specified rates on each, varying from three per cent. to twenty, and for any loss whatever under three or five per cent. Some seventy or eighty articles are subject to these exceptions of particular average in the divers forms of policy in use in different places ; 1 Phill. Ins. § 54, n. These exceptions were formerly introduced under a "memorandum," or "N. B.," and hence have -been called "memorandum arti cies," and the body of exceptions the "memo randum." The list of articles and rates of exceptions vary much in different places, and from time to time at the same place; De Peyster v. Ins. Co., 19 N. Y..272, 75 Am. Dec. 331.
The construction of these exceptions has been a pregnant subject in jurisprudence.
4 Maule & S. 503 ; 5 id. 47; 3 B. & Ad. 20 ; 5 id. 225 ; 4 B. & C. 736 ; 7 id. 219 ; 8 Bingh. 458 ; Williams v. Cole, 16 Me. 207 ; Morean v. Ins. Co., 1 Wheat. (U. S.) 219, 4 L. Ed. 75 ; Murray v. Hatch, 6 Mass. 465 ; De Peyster v. Ins. Co., 19 N. Y. 272, 75 Am. Dec. 331; [1893] Prob. 164, 209.