The Supreme Court of the United States, overruling a number of cases in the lower courts to the contrary, has held that this statute does not authorize compulsion of the production of books and papers before trial, the court saying that a bill of discovery is the proper remedy if the parties desire inspection in order to prepare for trial.4 It has been held that such an order will not be granted when the production of the papers can be compelled by a subpoena duces tecum which has been served.5 Where a deposition is properly taken under the Revised Statutes before trial, the production of books, papers and other documents can then undoubtedly be compelled by a subpœna duces tecum. In a recent case an order was affirmed which upon a petition clearly specifying what was wished and making a sufficient showing of their materiality compelled the production of books and papers upon the trial.7 It was previously held that the pendency of a bill of discovery was not a bar to such a motion in an action at common law, and that the motion must be made before the trial.9 The statute has been enforced in an action to recover treble damages under the Anti-Trust Act.10 In an action to recover a penalty, whether 2 Exchange Nat. Bank v. Wichita Cattle Co., 61 Fed. 190; Central Nat. Bank v. Tayloe, 2 Cranch, C. C. 427; Jacques V. Collins, 2 Blatchf. 23; Gregory v. Chicago, M. & St. P. R. Co., 10 Fed. 529; Lucker v. Phoenix Assur. Co., 67 Fed. 18; Victor G. Bloede Co. v. Joseph Bancroft & Sons, 98 Fed. 175; Cameron Lumber Co. v. Droney, 132 Fed. 304. Contra, Merchants' Nat. Bank v. State Nat. Bank, 3 Cliff. 201; Iasigi v. Brown, 1 Curt. 401; Triplett v. Bank, 3 Cranch, C. C. 646; Cassatt v. Mitchell Coal & Coke Co., C. C. A., 150 Fed. 32; reversed for want of jurisdiction of the writ of error, Webster Coal & Coke Co. v. Cassatt, 207 U. S. 181. See Bas v. Steele, 3 Wash. C. C. 381, Fed. Cas. No. 1,088; Dunham v. Riley, 4 Wash. C. C. 126, Fed. Cas. No. 3 Carpenter v. Winn, 221 U. S. 533, 55 L. ed. 842; reversing C. C. A., 165 Fed. 636. 4 Ibid., 221 U. S. 533, 540, 55 L. ed. 842, 845. See supra, § 347. 5 Edison El. L. Co. v. U. S. El. L. Co., 44 Fed. 294, 300. 6 Am. Lithographic Co. v. Werckmeister, C. C. A., Nov. 16, 1908, 165 Fed. 426. See supra, § 341. 7 United Mine Workers of America v. Cornado Coal Co., C. C. A., 258 Fed. 829, 834. 8 Iasigi v. Brown, 1 Curt. 401, Fed. Cas. No. 6,993. 9 Geyger v. Geyger, 2 Dall. 332, 1 L. ed. 403; Bank of U. S. v. Kurtz, 2 Cranch, C. C. 342. 10 Am. Banana Co. v. U. S., 153 Fed. 943. brought by a private individual or by the United States, and in a proceeding to enforce a forfeiture of property, the defendant or owner of the property seized cannot be compelled to produce its books or papers or other articles of personal property for the inspection of the opposite party, and should such an inspection be compelled, the judgment may be reversed upon that ground alone. It has been said that, as regards inspection at common law, the State practice may now be followed.12 § 350a. Testimony taken in another suit. Depositions, or testimony otherwise taken, in a former suit between the same parties, if relevant and material may be admitted in evidence 1 unless it clearly appears that there was no adequate cross examination upon an issue not raised in the former suit. The deposition of a witness who has since died taken in a suit between strangers if tending to prove ancient possession of land, is competent evidence but the deposition of a public officer who has since died concerning the destruction of public records when taken in an action between strangers is inadmissible since the destruction might be shown by the man in office at the time of the trial. In some cases affidavits,5 depositions, and evidence of oral testimony offered by a party in another suit have been admitted in evidence against him although there was no privity 11 Johnson v. Donaldson, 18 Blatchf. 287; Boyd v. U. S., 116 U. S. 616, 29 L. ed. 746. See U. S. v. Denicke, 35 Fed. 407, 410. 12 Victor G. Bloede Co. v. Joseph Bancroft & Sons Co., 98 Fed. 175; Filscole v. Lancaster, 70 Fed. 337; Gray v. Schneider, 119 Fed. 474. Contra, Lucker v. Phoenix Assur. Co., 67 Fed. 18; Schatz v. Winton Motor Carriage Co., 197 Fed. 777; General Film Co. v. Sampliner, C. C. A., 232 Fed. 95. See infra, § 359. § 350a. 1 Young v. J. Samuels & Bro., 232 Fed. 784. 2 See Virginia & West Virginia Coal Co. v. Charles, C. C. A., 251 Fed. 83. 3 Virginia & West Virginia Coal Co. v. Charles, C. C. A., 251 Fed. 83. 4 Virginia & West Virginia Coal Co. v. Charles, C. C. A., 251 Fed. 83. 5 Simon v. Etgen, 213 N. Y. 589, 598; Pritchard v. Bagshawe, 11 C. B. 459, 462. 6 But see Wigmore on Evidence, § 1075, and cases cited. 7 Becker v. Philadelphia, 217 Pa. 344, 347, 66 Atl. 564; Bageard v. Consol. Tea Co., 64 N. J. Law, 316; Livingston v. Colpiss, 4 N. W. Terr. 441, 442. Contra, Wilkins v. Stidgen, 22 Cal. 231, 236; Patly v. Salem F. Co., 53 Oregon 350, 96 Pac. 1106. between the parties. A party's own affidavit, deposition 10 or oral testimony 11 or admission 12 in a former suit irrespective of privity is always competent evidence against him as an admission. Otherwise depositions or testimony taken upon a trial to which the person against whom it was offered was not a party are incompetent.13 § 351. Testimony taken before a cause is at issue. Testimony for use in a court of law or equity of the United States may be taken either before or after it is at issue. Testimony taken before a cause is at issue may be taken either before or after it has begun. "Any court of the United States may, in its discretion, admit in evidence in any clause before it any deposition taken in perpetuam rei memoriam, which would be so admissible in a court of the State wherein such cause is pending according to the laws thereof." Evidence taken by means of a bill to perpetuate testimony may also be admitted in a subsequent suit in equity.2 The Equity Rules authorize depositions to be taken, by leave of the court, "when allowed by statute, or for good and exceptional cause for departing from the general rule, to be shown by affidavit."3 Such testimony is then taken in the same manner as testimony taken after issue has been joined. 8 Hallett v. Walker, 1 Ala. 585, 588; Gardner v. Moult, 10 A. & E. 464; Cole v. Hadley, 11 A. & E. 807; Boileau v. Rutlin, 2 Ex. Eq. 265, 280; Richards v. Morgan, 10 Jurist, N. S. 559, 4 B. & S. 641; Evans v. Merthyr Tydfil, 1 Ch. 241, 250. Cf. Simon v. Etgen, 213 N. Y. 589, 598. See Wigmore on Evidence, § 1075, and cases cited. 9 Simon v. Etgen, 213 N. Y. 589, 598; State v. Jones, 29 S. C. 201; Wigmore on Evidence, § 1040. 10 People v. Devine, 44 Cal. 458; People v. Bushton, 80 Cal. 160, 161, 22 Pac. 127; Southern Kansas R. R. Co. v. Painter, 53 Kansas 413, 418, 36 Pac. 731. 11 State v. Jones, 29 S. C. 201, 228, 7 S. E. 296; Lewis v. State, 91 Georgia 158, 170, 16 S. E. 986; Wigmore on Evidence, § 1040. 12 Supra, §§ 330, 331. 13 Anderson v. Holtberg, C. C. A., 247 Fed. 273; Virginia & West Virginia Coal Co. v. Charles, C. C. A., 251 Fed. 83. See supra, § 332. § 351. 1 U. S. R. S., § 867; Brown v. Worster, 113 Fed. 20. For a case where the testimony of a man injured by an accident was taken for use in a contemplated action on behalf of his family to recover for his death, see Ohio Copper Min. Co. v. Hutchings, C. C. A., 172 Fed. 201. 2 N. Y. & B. C. P. Co. v. N. Y. C. P. Co., 9 Fed. 578. 3 Eq. Rule 47, quoted infra, § 352. See Eq. Rule 70 of 1842. The action of an examiner in adjourning the hearing after a witness is tendered for cross-examination is final, and if the party who offered the § 352. Testimony taken within the jurisdiction of the court after a cause is at issue. Testimony taken after a cause is at issue is taken differently when taken within, than when taken without, the jurisdiction of the court. The Equity Rules of 1912 make a radical innovation in the pre-existing practice. "In all trials in equity the testimony of witnesses shall be taken orally in open court, except as otherwise provided by statute or these rules. The court shall pass upon the admissibility of all evidence offered as in actions at law. When evidence is offered and excluded, and the party against whom the ruling is made excepts thereto at the time, the court shall take and report so much thereof, or make such a statement respecting it, as will clearly show the character of the evidence, the form in which it was offered, the objection made, the ruling, and the exception. If the appellate court shall be of opinion that the evidence should have been admitted, it shall not reverse the decree unless it be clearly of opinion that material prejudice will result from an affirmance, in which event it shall direct such further steps as justice may require."1 "The court, upon application of either party, when allowed by statute, or for good and exceptional cause for departing from the general rule, to be shown by affidavit, may permit the deposition of named witnesses, to be used before the court or upon a reference to a master, to be taken before an examiner or other named officer, upon the notice and terms specified in the order. witness refuses to produce him for cross-examination his testimony in chief will be suppressed. Shapleigh v. Chester El. L. & P. Co., 47 Fed. 848. The court may, after a deposition has been concluded, allow further cross-examination. La Normandie, C. C. A., 58 Fed. 427; s. c., 40 Fed. 590. For a case where a deposition was admitted when the witness had died before his crossexamination, which had been adjourned at the request of the crossexaminer, see Celluloid Mfg. Co. v. Arlington Mfg. Co., 47 Fed. 4. For a case where a deposition was taken by consent in the absence of the examiner, and a dispute arose, see All depositions taken under a statute, or under any such order of the court, shall be taken and filed as follows, unless otherwise ordered by the court or judge for good cause shown: Those of the plaintiff within sixty days from the time the cause is at issue; those of the defendant within thirty days from the expiration of the time for the filing of plaintiff's depositions; and rebutting depositions by either party within twenty days after the time for taking original depositions expires." This rule does not limit the power of the court by order to permit the taking of depositions at any time even after the close of the hearing. The time may be extended by consent.5 2 It has been doubted whether the order can be made nunc pro tunc after the depositions have been taken.6 Depositions taken after the time has expired will be suppressed." The probability that the trial will occupy several days was held not to be a sufficient ground for authorizing the taking of depositions before an examiner. Whether this time limit applies to depositions de bene esse taken under the Revised Statutes has been the subject of conflicting decisions.10 9 The court when granting leave to take a deposition may limit the scope of the inquiry to a particular matter.11 Permission may be granted before a case is upon the trial calendar.18 "In a case involving the validity or scope of a patent or trademark, the district court may, upon petition, order that the testimony in chief of expert witnesses, whose testimony is directed. 8 North v. Herrick, 203 Fed. 591. 9 Infra, § 354. 10 It has been held that it does not in Iowa Washing Mach. Co. v. Montgomery Ward & Co., 227 Fed. 1004 (S. D. N. Y.). Contra, Block v. Arrowsmith Mfg. Co., 243 Fed. 775 (D. N. J.); Audiffren Refrigerating M. Co. v. General El. Co., 245 Fed. 783 (D. N. J.). 11 Norma Min. Co. v. Mackay, C. C. A., 241 Fed. 640. 18 United Lace & Braid Mfg. Co. 7. Barthels Mfg. Co., 217 Fed. 175. |