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FEDERAL STATUTES,

ANNOTATED.

EVIDENCE.

R. S. 724. Power to Order Production of Books and Writings in Actions at Law, 2. 858. (Relates to Exclusion of Witness on Account of Color or Interest, see

WITNESSES), 5. 859. Testimony of Witnesses Before Congress Not Admissible Against Them in

Criminal Prosecutions, 5. 860. Pleadings, Disciosures, etc., Not to Be Used in Criminal Proceedings, 5. 861. Mode of Proof in Common-law Actions, 7. 862. Mode of Proof in Equity and Admiralty Causes, 8. 863. Depositions De Bene Esse, 8. 864. Mode of Taking Depositions De Bene Esse, 15. 865. Transmission to the Court of Depositions De Bene Esse, 17.

866. Depositions under a Dedimus Potestatem and in Perpetuam, etc., 20. Act of March 9, 1892, ch. 14, 22.

Depositions for United States Courts May Follow State Usage, 22.
R. S. 867. Depositions in Perpetuam, etc., Admissible at Discretion of the Court, 23.

868. Deposition under a Dedimus Potestatem, How Taken, 23.
869. Subpæna Duces Tecum under a Dedimus Potestatem, 24.
870. Witness under a Dedimus Potestatem, When Required to Attend, 24.
871. Depositions in District of Columbia in Suits Pending Elsewhere, 24.
872. Same Subject; When No Commission or Notice, 25.
873. Same Subject; Manner of Taking and Transmitting the Deposition, 25.
874. Same Subject ; Witness Fees, 25.
875. Letters Rogatory from United States Courts, 25.
876–881. (Relate to Attendance and Recognizance of Witnesses, see Wit-

NESSES), 26.
882. Copies of Department Records and Papers, 26.
883. Copies of Records, etc., in Office of Solicitor of the Treasury, 27.
884. Instruments and Papers of Comptroller of the Currency, 27.
885. Organization Certificates of National Banks, 27.
886. Transcripts from Books, etc., of the Treasury, in Suits Against Delin-

quents, 27 Act of July 31, 1894, ch. 174, 28.

Sec. 17. Transcripts and Copies from Treasury Department, How Certified, 28. R. S. 887. Transcripts from Books of the Treasury in Indictments for Embezzle

ment of Public Moneys, 30. 888. Copies of Returns in Returns Office, 31. 889. Copies of Post Office Records and of Auditor's Statement of Accounts, 31. 800. Copies of Statements of Demands by Post Office Department, 32. 891. Copies of Records, etc., of General Land Office, 32.

892. Copies of Records, etc., of Patent Office, 33.

R. S. 893. Copies of Foreign Letters Patent, 33.

894. Printed Copies of Specifications and Drawings of Patents, 33.
895. Extracts from the Fournals of Congress, 34.
896. Copies of Records, etc., in Offices of United States Consuls, etc., 34.
897. Certain Books and Papers in Offices of District and Circuit Courts in

Texas, Florida, Wisconsin, Minnesota, Iowa, and Kansas, 34:
898. Transcribed Records in the Clerks' Offices of Western District of North

Carolina, 34 899. When Original Records Are Lost or Destroyed, 35. 900. Same Subject, 35. 901. Same Subject, 35. 902. Same Subject, 35. 903. Same Subject, 36. 904. Same Subject, 36. 905. Authentication of Legislative Arts and Proof of Judicial Proceedings of

States, etc., 37. 906. Proofs of Records, etc., Kept in Offices Not Pertaining to Courts, 39. 907. Copies of Foreign Records, etc., Relating to Land Titles in the United 908. (Relates to Little & Brown's Edition of Statutes as Evidence, see

STATUTES), 40. 909. (Burden of Proof, When Lies on Claimant in Seizure Cases, see Fines,

PENALTIES, AND FORFEITURES), 40. 910. (Possessory Actions for Recovery of Mining Titles, see Mineral LANDS,

MINES, AND MINING), 40.
2409. Copies of Records, etc., to Be Certified, 41.
2470. Exemplifications Valid Without Names of Officers Signing and Counter-

signing, 41.
4071. Taking Testimony to Be Used in Foreign countries, 41.
4072. Witness Need Not Criminate Himself, 42.
4073. Punishment of Witness for Contempt, 42.

4074. Fees and Mileage of Witnesses, 42. Act of Funë 22, 1874, ch. 391, 42. Sec. 5. Books, Invoices, and Papers Required in Civil Suits under Revenue Laws,

42. 8. Officers and Persons Claiming Compensation and Defendants May Be Wit

nesses, 43.

States, 40.

CROSS-REFERENCES. As to Witnesses, see that title. In Bankruptcy Cases, see BANKRUPTCY, vol. 1, p. 525. In Claim Cases, see CLAIMS, vol. 2, p. I. In Congressional Investigations and Contested Elections, see CONGRESS, vol. 2,

In Consular Courts, see DIPLOMATIC AND CONSULAR OFFICERS,

vol. 2, p. 775.
In Copyright Cases, see COPYRIGHT, vol. 2, p. 271.
In Extradition Cases, see EXTRADITION.
In Interference Cases, see PATENTS.
In Seizure Cases, see FINES, PENALTIES, AND FORFEITURES,
Statutes as Evidence, see STATUTES.
Defendants in Criminal Cases as Witnesses, Act of March 16, 1878, ch. 37, see

WITNESSES.
Notaries Public of States May Take Depositions, see NOTARIES PUBLIC.
And consult the General Index.

Sec. 724. [Power to order production of books and writings in actions at law.] In the trial of actions at law, the courts of the United States may, on motion and due notice thereof, require the parties to produce books or writings

in their possession or power, whieli contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery. If a plaintiff fails to comply with such order, the court may, on motion, give the like judgment for the defendant as in cases of nonsuit; and if a defendant fails to comply with such order, the court may, on motion, give judgment against him by default. [R. S.]

Act of Sept. 24, 1789, ch. 20, 1 Stat. L. 82. Fed. Cas. No. 2,103; Victor G. Bloede Co. v.

The only purpose and effect of this section Joseph Bancroft, etc., Co., (1899) 98 Fed. Rep. is to give courts of law the power to do what 175; Iasigi v. Brown, (1853) 1 Curt. (U. S.) courts of equity may do in the matter of 401, 12 Fed. Cas. No. 6,993. using documents without the formality of Pertinent evidence --- Amount of damages. going into a court of equity with a bill of dis - Where the plaintiff's case includes not covery in aid of an action at law. Ryder 1. only the making and breach of the agreement, Bateman, (1898) 93 Fed. Rep. 31; Crandall but the amount of damages, if any, to which t. Plano Mfg. Co., (1885) 24 Fed. Rep. 738; he is entitled, evidence tending to ascertain Owyhee Land, etc., Co. 1. Tautphaus, (C. C. such amount is pertinent to the issue. Victor A. 1901) 109 Fed. Rep. 547; Gregory 1. Chi G. Bloede Co. v. Joseph Bancroft, etc., Co., cago, etc., R. Co., (1882) 10 Fed. Rep. 529. (1899) 98 Fed. Rep. 175. This section relates to suits at law only. Application to inspect a mine.

Where a -- Havermeyers, etc., Sugar Refining Co. v. petition, the purpose whereof is to secure the Compania Transatlantica Espanola, (1890) removal of a receiver in charge of an insoly43 Fed. Rep. 90; Bischoffsheim 1. Brown, ent company, is made to inspect a mine by a (1886) 29 Fed. Rep. 341.

stockholder and bondholder, either personally A proceeding in rem is not within the pro or by an agent, such application is “anvisions of this section. U. S. v. Twenty alogous to the motion made for the produceight Packages Pins, (1832) Gilp. (U. S.) tion, by parties, of books or writings in their 306, 28 Fed. Cas. No. 16,561.

possession, which contain evidence pertinent The fact that a bill of discovery was filed

to the issue,

and to the motions is not a bar.-" If a party chooses to go to under the code practice for admission or inthe expense of both [a bill of discovery and spection of writings or examination of the an order to produce), the court cannot de parties, before trial; ” and, the petitioner prive him of one of them, unless it can clearly being a party in interest, the application was see that the other has been completely ef granted. Henszey 1. Langdon-Henszey Coal fectual, so that any further proceeding must Min. Co., (1897) 80 Fed. Rep. 178. be simply useless, or intended to harass the Order against United States. A bill of other party." Iasigi 1. Brown, (1853) I Curt. discovery will not lie against the United (l'. S.) 401; Paine r. Warren, (1888) 33 Fed. States, but, nevertheless, an order will be Rep. 357.

granted to compel the production by the When discovery granted, and when not. United States of the official weighers' returns Discovery by production of documents, or of the weights of certain goods, where there otherwise, having for its object the promotion is a suit to recover a balance of duties alof justice through the disclosures of material leged to be due the United States on such facts, will be ordered under this section, un goods; the answer alleging that such duties less it clearly appears that the discovery were fully paid, and the motion being supcould not avail the cause of the party apply. ported by evidence showing thit an ining for it; “but it will not be awarded to spection is, or copies of these returns are, gratify mere curiosity or to enable one party necessary to enable the defendant, by whom to make undue inquisition into the affairs of the motion is made, to prepare for trial. another; nor will the court extend discovery U. S. v. Youngs, (1879) 10 Ben. (U. S.) 264. beyond the legitimate requirements of the Discovery refused — Penal action. -- Where case to be aided thereby." Victor G. Bloede a qui tam action is instituted under section Co. 4. Joseph Bancroft, etc., Co., (1899) 98 4901 of the Revised Statutes for the recovery Fed. Rep. 175.

of penalties for the alleged false marking of What must be shown. — Before an order certain articles as patented, the defendant canwill be made under this section, the party not be compelled to produce his books and applying therefor must make reasonable proof papers before trial for examination by the of the existence of the paper required to be plaintiff for the purpose of showing the numproduced, its pertinence to the issue, and that ber of penalties alleged to have been incurred; it is in the possession or under the control of for such an action is a penal action, and the the opposite party; and it was held that the provision of this section expressly limits its affidavit of the defendant's attorney stating application to cases and circumstances where that he believes, from reliable sources of in the party might be compelled to produce the formation and inquiry, that there is such a books and papers “by the ordinary rules of letter (as the one in question) pertinent to proceeding in chancery ; " and "a bill of the issue and in possession of the plaintiff, discovery will not lie in a case which inis not such reasonable proof of the facts as volves a penalty or a forfeiture.” Newgold to authorize the order. Buell 2. Connecticut V. American Electrical Novelty, etc., Co., Mut. L. Ins. Co., (1876) 1 Cinc, L. Bul. 51, 4 (1901) 108 Fed. Rep. 341.

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Where the evidence sought for will not only have the effect of enabling the plaintiff to recover his entire damages, but its direct consequence will be to subject the defendant to a penalty, and the plaintiff has not relinquished his claim to such penalty, the order will not be granted. Finch v. Rikeman, (1851) 2 Blatchf. (U. S.) 301, 9 Fed. Cas. No. 4.788; U. S. v. National Lead Co., (1896) 75 Fed. Rep. 94.

Application ambiguous on its face. view of the discretionary nature of the power of the court under section 724 summarily to give judgment of nonsuit or by default, as the case may be, for noncompliance with an order of production, this court will not favorably act on any application for production ambiguous on its face or which does not clearly conform to the requirements of the section." Victor G. Bloede Co. v. Joseph Bancroft, etc., Co., (1901) 110 Fed. Rep. 76.

Where the affidavit accompanying the application goes no further than that the affiant believesthat the books, the production and inspection of which are desired, “will tend to prove the issue in this action in the mover's favor," an order will not be granted in an action at law before trial for production of private account books. Caspary v. Carter, (1897) 84 Fed. Rep. 416.

Where the inconvenience or expense of producing books and papers is very great, and a sworn copy of the entries from the books is given, or proposed to be given, a very strong case of the necessity of the production of the books themselves should be made out to compel their production, or to subject the delinquent to the penalty prescribed. Lowenstein v. Carey, (1882) 12 Fed. Rep. 811.

The court will always keep the procedure in reference to production under its control “ for the purposes of substantial justice, and never suffer either party to be entrapped; and, notice to produce certain deeds having been served upon the attorney of a party living at a great distance, and the deeds being actually on record, an offer by the attorney to refer to the pages, etc., where they are recorded, will be considered sufficient without service upon or transmission of notice to the client himself. Geyger 1. Geyger, (1795) 2 Dall. (U. S.) 332, 10 Fed. Cas. No. 5,375.

Irrelevant entries in books. Where, under this section, the books sought to be produced and inspected may contain other entries with which the party applying for such production and inspection has no concern, and which he ought not to see, the order, while requiring their deposit in the clerk's office, will provide for the attendance of some representative of the opposite party during the examination; and as to entries therein which, it may be contended, are not relevant and should not be disclosed, the same shall be inspected, in the first instance, by the clerk; and if the parties or either of them are or is not satisfied with his decision thereon, application to review it may be made summarily to the judge in chambers. Gray v. Schneider, (1902) 119 Fed. Rep 474.

This section “should not be construed so narrowiy as to authorize a motion to produce

only when the documents have been described in the pleadings, because in actions at law such descriptive allegations in the pleadings would not ordinarily be permissible.” Paine 1. Warren, (1888) 33 Fed. Rep. 357.

Competency of affidavit. - An affidavit by a party interested, although taken ex parte and without cross-examination, is competent to support an application for an order of production under this section. U. S. Twenty-eight Packages Pins, (1832) Gilp. (U. S.) 306, 28 Fed. Cas. No. 16,561.

“ The proper practice under this statute is for the party requiring the production of such books or writings to spread on the motion docket a motion for a rule upon the opposite party requiring the production of the books or papers desired. The motion should describe the books or papers with as much certainty as may be, and should further state that, according to the best of the mover's knowledge or information and belief, the books ür papers called for will tend to prove the issue in favor of the mover. The motion should further state some fact or facts which the books or papers will tend to prove, pertinent to the issue, which issue should be made up before the motion is made, so that the court may determine the pertinency of the fact or facts which it is alleged the books or papers will tend to prove. What they will prove can only be determined after their production. The truth of the allegations stated in the motion should be verified by the aífidavit of the mover, or his agent, and the materiality of the testimony sought by the production of the books or papers certified to by the counsel of the mover. Lowenstein v. Carey, (1882) 12 Fed. Rep. 811.

No method of proceeding being prescribed by Congress, the formalities of a bill of discovery in chancery are not required; and a mere notice to the opposite party, of the time and place of application, with a plain desig. nation of the documents or pieces of evidence sought for, will be sufficient. Jacques v. Collins, (1846) 2 Blatchf. (U. S.) 23, 13 Fed. Cas. No. 7,167.

Federal, not state, legislation controls practice. — Although the practice which prevails in the highest courts of the state prevails in the federal courts, yet when Congress has legislated upon a matter of practice for the federal courts, such legislation becomes the sole and supreme guide to the exclusion of the state code; and therefore, where an application was made by a party for an examination and inspection of books before trial, under the 157th section of the Practice Act of New Jersey (Revision N. J., p. 873), and section 724, R. S., the latter section was held to govern the practice in the federal courts. U. S. v. National Lead Co., (1896) 75 Fed. Rep. 94; Gregory v. Chicago, etc., R. Co., (1882) 10 Fed. Rep. 529.

Practice in federal courts of equity. - The federal courts of equity must proceed as they did and do without aid of the section, being governed by the general equity rules prescribed by the Supreme Court of the United States, and, where they do not apply, by the practice of the High Court of Chancery in England at the time of the promulgation of

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