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

894. Printed Copies of Specifications and Drawings of Patents, 33.
895. Extracts from the Journals 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 Acts 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 States, 40.

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.

2469. Copies of Records, etc., to Be Certified, 41.

2470. Exemplifications Valid Without Names of Officers Signing and Countersigning, 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 June 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 Witnesses, 43.

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. 1.

In Congressional Investigations and Contested Elections, see CONGRESS, vol. 2, p. 238 et seq.

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, which 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. The only purpose and effect of this section is to give courts of law the power to do what courts of equity may do in the matter of using documents without the formality of going into a court of equity with a bill of discovery in aid of an action at law. Ryder r. Bateman, (1898) 93 Fed. Rep. 31; Crandall r. Plano Mfg. Co., (1885) 24 Fed. Rep. 738; Owyhee Land, etc., Co. r. Tautphaus, (C. C. A. 1901) 109 Fed. Rep. 547; Gregory r. Chicago, etc., R. Co., (1882) 10 Fed. Rep. 529.

This section relates to suits at law only. -Havermeyers, etc., Sugar Refining Co. t. Compania Transatlantica Espanola, (1890) 43 Fed. Rep. 90; Bischoffsheim . Brown, (1886) 29 Fed. Rep. 341.

A proceeding in rem is not within the provisions of this section. U. S. r. Twentyeight Packages Pins, (1832) Gilp. (U. S.) 306, 28 Fed. Cas. No. 16,561.

The fact that a bill of discovery was filed is not a bar. "If a party chooses to go to the expense of both [a bill of discovery and an order to produce], the court cannot deprive him of one of them, unless it can clearly see that the other has been completely effectual, so that any further proceeding must be simply useless, or intended to harass the other party." Iasigi v. Brown, (1853) 1 Curt. (U. S.) 401; Paine r. Warren, (1888) 33 Fed. Rep. 357.

When discovery granted, and when not. Discovery by production of documents, or otherwise, having for its object the promotion of justice through the disclosures of material facts, will be ordered under this section, unless it clearly appears that the discovery could not avail the cause of the party applying for it; "but it will not be awarded to gratify mere curiosity or to enable one party to make undue inquisition into the affairs of another; nor will the court extend discovery beyond the legitimate requirements of the case to be aided thereby." Victor G. Bloede Co. r. Joseph Bancroft, etc., Co., (1899) 98 Fed. Rep. 175.

What must be shown. - Before an order will be made under this section, the party applying therefor must make reasonable proof of the existence of the paper required to be produced, its pertinence to the issue, and that it is in the possession or under the control of the opposite party; and it was held that the affidavit of the defendant's attorney stating that he believes, from reliable sources of information and inquiry, that there is such a letter (as the one in question) pertinent to the issue and in possession of the plaintiff, is not such reasonable proof of the facts as to authorize the order. Buell r. Connecticut Mut. L. Ins. Co., (1875) 1 Cine, L. Bul. 51, 4

Fed. Cas. No. 2,103; Victor G. Bloede Co. v. Joseph Bancroft, etc., Co., (1899) 98 Fed. Rep. 175; Iasigi v. Brown, (1853) 1 Curt. (U. S.) 401, 12 Fed. Cas. No. 6.993.

Pertinent evidence - Amount of damages. Where the plaintiff's case includes not only the making and breach of the agreement, but the amount of damages, if any, to which he is entitled, evidence tending to ascertain such amount is pertinent to the issue. Victor G. Bloede Co. t. Joseph Bancroft, etc., Co., (1899) 98 Fed. Rep. 175.

Where a

Application to inspect a mine. petition, the purpose whereof is to secure the removal of a receiver in charge of an insolvent company, is made to inspect a mine by a stockholder and bondholder, either personally or by an agent, such application is "analogous to the motion made for the production, by parties, of books or writings in their possession, which contain evidence pertinent to the issue, and to the motions under the code practice for admission or inspection of writings or examination of the parties, before trial;" and, the petitioner being a party in interest, the application was granted. Henszey r. Langdon-Henszey Coal Min. Co., (1897) 80 Fed. Rep. 178.

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Order against United States. A bill of discovery will not lie against the United States, but, nevertheless, an order will be granted to compel the production by the United States of the official weighers' returns of the weights of certain goods, where there is a suit to recover a balance of duties alleged to be due the United States on such goods; the answer alleging that such duties were fully paid, and the motion being supported by evidence showing that an inspection is, or copies of these returns are, necessary to enable the defendant, by whom the motion is made, to prepare for trial. U. S. v. Youngs, (1879) 10 Ben. (U. S.) 264.

Discovery refused - Penal action. - Where a qui tam action is instituted under section 4301 of the Revised Statutes for the recovery of penalties for the alleged false marking of certain articles as patented, the defendant cannot be compelled to produce his books and papers before trial for examination by the plaintiff for the purpose of showing the number of penalties alleged to have been incurred; for such an action is a penal action, and the provision of this section expressly limits its application to cases and circumstances where the party might be compelled to produce the books and papers "by the ordinary rules of proceeding in chancery; and a bill of discovery will not lie in a case which involves a penalty or a forfeiture." Newgold 17. American Electrical Novelty, etc., Co., (1901) 108 Fed. Rep. 341.

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.

"In

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 "believes" that 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.

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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 r. 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 narrowly 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 v. 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. v. 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 or 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 designation 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. r. 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

those rules in 1842. Ryder v. Bateman, (1898) 93 Fed. Rep. 31.

Sufficient notice. "Notice must be given the party required to produce the books or writings, or his attorney, a sufficient length of time for the party to appear and show cause, if any he has, why the rule shall not be made, when he may, in opposition to the rule, show by affidavit that he has no such books or papers under his control, or any other reason he may have why the rule shall not be made. If any issue is made upon the motion. the court will hear proof, and grant or refuse the rule according to the proof and nature of the case." Lowenstein v. Carey, (1882) 12 Fed. Rep. 811.

Production at and before trial. The federal courts have, under this section, power to order the production of books and papers at the trial, and also before the trial, when issue has been joined, for inspection, in order to prepare for trial. Gray r. Schneider, (1902) 119 Fed. Rep. 474; Victor G. Bloede Co. r. Joseph Bancroft, etc., Co., (1899) 98 Fed. Rep. 175: Henszey r. Langdon-Henszey Coal Min. Co., (1897) 80 Fed. Rep. 178; Lucker r. Phoenix Assur. Co., (1895) 67 Fed. Rep. 18; Exchange Nat. Bank r. Washita Cattle Co., (1894) 61 Fed. Rep. 190; Brewster v. Tuthill Spring Co., (1888) 34 Fed. Rep. 769; Paine v. Warren. (1888) 33 Fed. Rep. 357; Gregory v. Chicago, etc., R. Co., (1882) 10 Fed. Rep. 529; Coit v. North Carolina Gold Amalgamating Co., (1881) 9 Fed. Rep. 577; Geyger r. Geyger, (1795) 2 Dall. (U. S.) 332, 10 Fed. Cas. No. 5,375; Central Bank . Tayloe, (1823) 2 Cranch (C. C.) 427, 5 Fed. Cas. No. 2.548; Jacques r. Collins, (1846) 2 Blatchf. (U. S.) 23, 13 Fed. Cas. No. 7,167; Finch v. Rikeman, (1851) 2 Blatchf. (U. S.) 301, 9 Fed. Cas. No. 4,788; U. S. v. Youngs, (1879)

10 Ben. (U. S.) 264, 28 Fed. Cas. No. 16,783; U. S. v. Hutton, (1879) 10 Ben. (U. S.) 268, 26 Fed. Cas. No. 15,433; Easton v. Hodges, (1877) 7 Biss. (U. S.) 324, 8 Fed. Cas. No. 4,258.

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But see U. S. v. National Lead Co., (1896) 75 Fed. Rep. 94, holding that the production must be at the trial" and at no other time; Hylton v. Brown, (1806) 1 Wash. (U. S.) 298, 12 Fed. Cas. No. 6,981; Triplett v. Washington Bank, (1829) 3 Cranch (C. C.) 646, 24 Fed. Cas. No. 14,178; lasigi r. Brown, (1853) 1 Curt. (U. S.) 401, 12 Fed. Cas. No. 6,993. Remedy in case of noncompliance. In case of noncompliance by one party, the remedy of the other is restricted to the obtaining, in the discretion of the court, of a judgment of nonsuit or by default, as the case may be," the court not having power to compel jurisdiction by attachment. Victor G. Bloede Co. r. Joseph Bancroft, etc., Co., (1901) 110 Fed. Rep. 76 [citing with approval, Iasigi v. Brown, (1853) 1 Curt. (U. S.) 401, 12 Fed. Cas. No. 6,993; Merchants Nat. Bank v. State Nat. Bank, (1868) 3 Cliff. (U. S.) 201, 17 Fed. Cas. No. 9,448].

In order to obtain a nonsuit or a judgment by default there must be a notice of motion for an order for discovery, followed by an order which has been disobeyed. Owyhee Land, etc., Co. v. Tautphaus, (C. C. A. 1901) 109 Fed. Rep. 547; U. S. Bank v. Kurtz, (1822) 2 Cranch (C. C.) 342, 2 Fed. Cas. No. 920; Bas v. Steele, (1818) 3 Wash. (U. S.) 381, 2 Fed. Cas. No. 1,088; Maye v. Carbery, (1822) 2 Cranch (C. C.) 336, 16 Fed. Cas. No. 9,339; Thompson v. Selden, (1857) 20 How. (U. S.) 194; Dunham v. Riley, (1821) 4 Wash. (U. S.) 126, in which the court held also that the order need not be absolute in the first instance, but may be nisi.

Sec. 858. [Relates to exclusion of witness on account of color or interest. See WITNESSES.]

Sec. 859. [Testimony of witnesses before Congress not admissible against them in criminal prosecutions.] No testimony given by a witness before either House, or before any committee of either House of Congress, shall be used as evidence in any criminal proceeding against him in any court, except in a prosecution for perjury committed in giving such testimony. But an official paper or record produced by him is not within the said privilege. [R. S.]

Act of Jan. 24, 1862, ch. 11, 12 Stat. L. 333: Act of Jan. 24, 1857, ch. 19, 11 Stat. L. 156.

Sections 858 to 910 constitute chapter 17

(Evidence) of title 13 (Judiciary) of the Revised Statutes.

Witnesses and testimony on Congressional investigations, see CONGRESS, vol. 2, pp. 238,

239.

Sec. 860. [Pleadings, disclosures, etc., not to be used in criminal proceedings. No pleading of a party, nor any discovery or evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign country, shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture: Provided, That this section shall not exempt any party or witness from prosecution and punishment for perjury committed in discovering or testifying as aforesaid. [R. S.]

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Act of Feb. 25, 1868, ch. 13, 15 Stat. L. 37. Pleading of a party," etc. Where an affidavit was made by an indicted party under sec. 878, R. S., setting forth that there were witnesses whose evidence was material to his defense, and that he was actually unable to procure the attendance of said witnesses, and it appearing that they might be summoned at the expense of the United States, it was held that such affidavit is not a "pleading of a party nor " discovery or evidence obtained from a party or witness by means of a judicial proceeding," within the meaning of section 860. Tucker v. U. S., (1894) 151 U. S. 164. The "discovery or evidence" referred to in this section is of a personal nature to which the party can make oath, the statute contemplating" a case where he should make discovery, or give evidence, in such form that he could swear to the truth of his statements, that those statements should not be given in evidence against him, when prosecuted criminally, or for a penalty, but that, if he testified or made discovery upon oath falsely, he should suffer the punishment due to a perjurer." U. S. v. Hughes, (1875) 12 Blatchf. (U. S.) 553.

"Evidence obtained from a party.". Where, pursuant to section 2 of the Act of March 2, 1867, 14 Stat. L. 546, ch. 188, a warrant had been issued for the seizure of partnership books and papers, in a suit by the United States against a firm for the value of certain imports alleged to have been forfeited under the customs revenue law, it was held that section 860 did not preclude the offering at the trial of the books and papers so seized on the part of the plaintiffs, as the evidence thus offered was not obtained from the party, within the meaning of this section. U. S. r. Hughes, (1875) 12 Blatchf. (U. S.) 553, 26 Fed. Cas. No. 15,417, reversing (1875) 21 Int. Rev. Rec. 76, 26 Fed. Cas. No. 15,419.

Disclosure of a fact upon which a claim for penalties under sections 4963, 4965, may depend. Defendants in an action upon an alleged infringement of a copyright on a photograph cannot be required to make a disclosure, by answer or otherwise, of any fact upon which a claim against them for penalties for the violation of secs. 4963, 4965, R. S., may depend; nor can they be required to produce any books or papers which would subject them to a penalty. Snow v. Mast, (1894) 63 Fed. Rep. 623, citing Johnson v. Donaldson. (1880) 3 Fed. Rep. 22.

Judicial proceeding. — Where, upon the order of the executive departments of the government, made in a legitimate exercise of its powers for the enforcement of the laws, a collector of internal revenue has seized the books of a distillery, which are kept pursuant to secs. 3303, 3304, R. S., false entries wherein, or an omission to make such entries as the law requires, or a refusal to produce which upon proper demand, will subject the distiller to forfeiture, it was held that such seizure is not a judicial proceeding" within the meaning of section 860, and the government may use the books as evidence at the trial for forfeiture. U. S. v. Myers, (1876) 1 Hughes (U. S.) 533.

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This section does not "make it incompetent to contradict a party who testifies in his own behalf, by showing that on another occasion, in a prosecution against another party, he, as a witness, gave a different account of the transaction, such account of itself having no tendency to criminate the witness, but rather to place the responsibility wholly upon another." U. S. c. Smith, (1891) 47 Fed. Rep. 501.

"It is for the judge before whom the question arises to decide whether an answer to the question put may reasonably have a tendency to criminate the witness, or to furnish proof of a link in the chain of evidence necessary to convict him of a crime." Wyckoff v. Wagner Typewriter Co., (1899) 99 Fed. Rep. 158 [citing Ex p. Irvine, (1896) 74 Fed. Rep. 954]; U. S. v. McCarthy, (1883) 18 Fed. Rep. 87.

Vote of grand jury. "After evidence has been taken in an investigation, and the [grand jury votes upon the question whether this shows that A has probably committed an offense, its vote is taken in the same proceeding, and the evidence taken is not used elsewhere," within this section. U. S. v. Kimball, (1902) 117 Fed. Rep. 156.

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The protection of this section is not coextensive with the constitutional provision of the Fifth Amendment declaring that no pershall be compelled in any criminal case to be a witness against himself," as the section does not supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and is not a full substitute for that prohibition," affording "no protection against that use of compelled testimony which consists in gaining therefrom a knowledge of the details of a crime, and of Sources of information which may supply other means of convicting the witness or party." Counselman . Hitchcock, (1892) 142 U. S. 547, reversing In re Counselman, (1890) 44 Fed. Rep. 268; U. S. v. Bell, (1897) 81 Fed. Rep. 830; Ex p. Irvine, (1896) 74 Fed. Rep. 954; La Bourgogne, (1900) 101 Fed. Rep. 823.

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But see U. S. v. Brown, (1871) 1 Sawy. (U. S.) 531, 24 Fed. Cas. No. 14,671, where the court held that, under this section, a witness may be compelled to answer, when inquiry is pertinent to any judicial proceeding, because it may be necessary to the ends of justice as to others," and his answer cannot be used against himself.

And see U. S. v. McCarthy, (1883) 21 Blatchf. (U. S.) 469, wherein it was held that, where there was a complaint against a certain party for perjury, a witness against whom no charge was pending when prosecution threatened was not relieved from answering certain questions on the ground that his answer thereto might incriminate himself, although he did not specify or indicate any offense in regard to which his answers might tend to such incrimination, as it was held that this section would give him complete protection.

Constitutionality of immunity proviso. Whether the proviso to R. S.. sec. 860, that the immunity shall not operate to protect the

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