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port, at the disposal of the consuls," need not end with the departure of the vessel from the port at which the seaman was taken from the vessel, but may last until the expiration of the two months, which is the Jimit prescribed by the Act of June 11, 1864, 13 Stat. L. 121, ch. 116, carried forward in substance as R. S. secs. 4079–4081, enacted to provide for the execution of treaties re. specting consular jurisdiction over the crews of foreign vessels in the waters and ports of the United States. Dallemagne 1: Moisan, (1905) 197 U. S. 169, 25 S. Ct. 422, 49 U. S. (L. ed.) 709.

Validity of arrest by state officer. – In Dallemagne v. Moisan, (1905) 197 U. S. 169,

25 S. Ct. 422, 49 U. S. (L. ed.) 709, it was held that an unauthorized arrest by a state official on a requisition of a French consul, charging a seaman on a French vessel with insubordination, conformably to article 8 of the Treaty with France of Aug. 12, 1853, 10 Stat. L. 992, 996, 7 Fed. Stat. Annot. 551, does not entitle the seaman to his discharge on habeas corpus when brought before a fed. eral District Court, since the objection to the irregularity of the arrest is obviated by the action of that court in examining into the case under the authority conferred upon it by the Act of June 11, 1864, carried forward in substance as R. S. secs, 4078-4081.

EDUCATION.

Vol. II, p. 851, sec. 4.

Appropriations to be controlled and admin- control being simply public agents to man. istered by state. - This Act and Act Cong. age a public property. Aug. 30, 1890, ch. 841, 26 Stat. L. 417, 2 Fed. Teaching military tactics. — In State U. Stat. Annot. 854, granting certain public Bryan, (1905) 50 Fla. 293, 39 So. 929, it was lands or land scrip to the several states, pro held that chapter 5384 of the Laws of 1905 vide that the proceeds thereof shall be in of Florida were not unconstitutional or in vested to constitute a perpetual fund for the conflict with this Act, donating to the state endowment of at least one college where the a fund for the establishment and mainteleading object shall be instruction in me. nance of at least one college as therein speci. chanic arts and agriculture, and appropriat fied, because said chapter 5384 provided that ing money arising from the sales of the pub the state board of education and the state lic lands to the states for the benefit of such board of control “shall include military tacschools constituted a grant to the several tics, if the said joint boards deem the same states, and not to the colleges competent to requisite and proper," as one of the branches receive the same in the states to be received of education in the University of the State through the state ás a mere conduit. State of Florida. v. Irvine, (1906) 14 Wyo. 318, 84 Pac. 90. Right to use for other than educational pur.

In State v. Bryan, (1905) 50 Fla. 293, 39 poses. — In Nebraska it has been held that So, 929, it was held that the legislature of by the terms of this Act, and by the accept. Florida has the power to prescribe what col. ance of the grants by the state, and the lege or colleges shall be the recipient or re pledges contained in the state constitution cipients of the interest on the fund derived and statutes with reference thereto, the state from the sale of lands donated by this Act became a trustee of the funds derived from for the maintenance of at least one college such grants, for the sole purpose of applying for instruction in agriculture and mechanic them to the objects of the grant, and with arts, or to bestow it for such purpose upon a no power to divert the same to other puruniversity of the state, as it may elect, hav. poses, or to render them general funds of the ing also the power to withdraw the interest state. State v. Brian, (1909) 84 Neb. 30, of this fund from any institution of learning 120 N. W. 916. which has been the recipient of it, and found Institutions entitled to grants. — No paranother institution, at any time it may elect ticular institutions are entitled to the grants 80 to do, and make it the recipient of said and appropriations made respectively by this interest for such instruction. It was further Act, and by the Act of Aug. 30, 1890, 26 held that the legislature has the discretion Stat. L. 417, ch. 841, 2 Fed. Stat. Annot. ary power to provide proper educational 854, appropriating annually certain sums to qualifications for admission to such state each state and territory for the more comcollege or university, to appoint trustees plete endowment and maintenance of such col. thereof, subject to change, conferring such leges, but the states take the property, powers, not in conflict with some constitu. charged with the duty to devote it to the tional provision, upon them as it may see fit, purposes named. Wyoming v. Irvine, (1907) or to establish a state board of control, as 206 U. S. 278, 27 S. Ct. 613, 51 U. S. (L. ed.) was done by chapter 5384, Laws Florida, 1063. 1906; said trustees or said state board of Selection of beneficiary duty of state....

See under this title, vol. 2, p. 854, sec. I.

Vol. II, p. 854, sec. 1. (Act of Aug. 30, 1890.]

Selection of beneficiary - duty of state. — act, it is the duty of the state legislature to The endowment of land and money conferred select the beneficiary entitled to receive and by Act Cong. July 2, 1862, ch. 130, 12 Stat. expend the funds. State v. Irvine, (1906) L. 503, 2 Fed. Stat. Annot. 851, and this Act, 14 Wyo. 318, 84 Pac. 90. for the benefit of colleges in the several states Appropriations to be controlled and adminfor the dissemination of learning and agri. istered by state. — See under this title, vol. culture and mechanic arts, being grants to 2, p. 851, séc. 4. the states for the benefit of a college or col- Institutions entitled to grants. — Seo under leges situated therein, and the state being re- this title, vol. 2, p. 851, sec. 4. quired to accept the grant by the legislative

ELECTIVE FRANCHISE. Vol. II, p. 864, sec. 5507.

Constitutionality. - The provision in this section for the punishment of individuals who, by means of bribery, prevent persons to whom the right of suffrage is guaranteed by U. S. Const., 15th Amend., from exercising that right, cannot be sustained, as an exercise of the power granted to Congress by such amendment, to prevent the denial of such right by state action. James 1. Bowman, (1903) 190 U. S. 127, 23 S. Ct. 678, 47 U. S. (L. ed.) 979.

Limiting operation to sustain validity. The operation of section 5507, which was manifestly enacted to punish the bribery at all elections, state and federal, of persons guaranteed the right to vote by U. s. Const., 15th Amend., cannot be limited by judicial construction, for the purpose of sustaining its constitutionality, to the bribery of voters at elections for federal officers. James v. Bowman, (1903) 190 U. S. 127, 23 S. Ct. 678, 47 U. S. (L. ed.) 979.

Vol. II, p. 864, sec. 5509.

Constitutionality. – In Rakes v. U. S., (1909) 212 U. S. 55, 29 S. Ct. 244, 53 U. S. (L. ed.) 401, it was held that the constitution ality of the provision of this section for such punishment of persons committing any other felony or misdemeanor, when conspiring con trary to the preceding section, as is attached to such felony or misdemeanor by the laws of the state in which the offense is committed, was too well settted to permit the question as to such constitutionality to serve as the basis of a writ of error from the federal Su preme Court to a District Court.

Former jeopardy. – An acquittal of murder after a regular trial in a state court having

full jurisdiction in the premises is a bar to so much of an indictment for conspiring criminally in violation of R. S. secs. 5508, 5509, ab seeks, by charging defendants with the commission of such murder, to enforce the provision of section 5509, that if, in carrying out such conspiracy, an offense against the state has been committed, the punishment provided for by the state for such offense shall be imposed. U. S. 1. Mason, (1909) 213 U. S. 113, 29 S. Ct. 480, 53 C. S. (L. ed.) 725.

For another case citing this section see U. S. v. Powell, (1907) 151 Fed. 648, affirmed (1909) 212 U. S. 564, 29 S. Ct. 690, 53 U. S. (L. ed.) 653.

ESTIMATES, APPROPRIATIONS, AND

REPORTS.

Vol. II, p. 897, sec. 3678.

Expenses of railway postal clerks. — This Stat. Annot. 898, provides that no department section declares that all siuns appropriated of the government shall expend in any one for the various branches of expenditures in fiscal year a sum in excess of appropriations the public service shall be applied solely to made by Congress for that fiscal year, or the objects for which they are respectively involve the government in any contract for made, and for no others. Section 3679, 2 Fed.. the future payment of money in excess of F, S. A. Supp. — 67

1057

such appropriations. The annual appropria. tions for the post-office department provide for actual and necessary expenses by railway postal clerks while actually traveling on business of the department, and away from their several designated headquarters, etc.

It has been held that under such Acts a rail. way postal clerk could not recover against the United States as on an implied contract for expenses of bed and board while on his regular run, in addition to his fixed salary. Parshall v. U. S., (C. C. A, 1906) 147 Fed. 433.

Vol. II, p. 898, sec. 3679.

Rent in excess of appropriation. - In Hooe 0. U. S., (1910) 218 U. S. 322, 31 S. Ct. 85, 54 U. S. (L. ed.) 1055, it was held that the owners of a building who have received the entire sums which Congress has from year to year appropriated as full compensation for the rent of quarters secured for the Civil Ser: vice Commission by the Secretary of the Interior, in the discharge of his duty under the Act of Jan. 16, 1883, 22 Stat. L. 403, 405, ch. 27, 1 Fed. Stat. Annot. 812, cannot maintain suit against the government under the Act of March 3, 1887, 24 Stat. L. 505, ch. 359, 2 Fed. Stat. Annot. 80, to recover the difference between such sums and the fair rental value of the building, including the basement, which was used without consent, on the theory that the claim is founded upon a contract, express or implied, or upon the constitutional obligation to make just compensation for private property taken for public use, in view of

R. S. secs. 3679, 3732, providing respectively that “no department of the government shall expend in any one fiscal year any sum in excess of appropriations made by Congress for that fiscal year, or involve the government in any contract for the future payment of money in excess of such appropriations," and that “no contract or purchase on behalf of the United States shall be made unless the same is authorized by law, or is under an appropriation adequate to its fulfilment," and of the Acts of Congress of June 22, 1874, 18 Stat. L. 133, 144, ch. 388, and March 3, 1877, 19 Stat. L. 363, 370, ch. 106, 6 Fed. Stat. Annot. 120, prohibiting contracts for the rental of property for government purposes until an appropriation therefor shall have been made in terms by Congress.

Expenses of railway postal clerks. — See under this title, vol. 2, p. 897, sec. 3878.

EVIDENCE.

Vol. III, p. 2, sec. 724.

Practice in equity. - This section has no Statute not exclusive. - The power of a application to suits in equity. Oro Water, federal court to require the production of etc., Co. v. Oroville, (1908) 162 Fed. 975. documentary evidence is not limited to an

Parties." - Where an action was brought order made on motion, as provided by this against a railroad company alone for alleged section, but it has inherent power, as well as violation of the Interstate Commerce Act, it express authority, under section 716 (4 Fed. was held that the corporation's officers and Stat. Annot. 498), to issue a subpoena duces agents were not “parties” within this sec. tecum and to enforce obedience thereto by tion authorizing federal courts, on notice, to proceedings for contempt. American Lith. require the “parties” to produce books or Co. 1. Werckmeister, (C. C. A. 1908) 165 Fed. writings in their possession or power which 426. contain evidence pertinent to the issue, etc. Photographic copies.-Where plaintiffs sued Cassatt v. Mitchell Coal, etc., Co., (C. C. A: on a document alleged to have been signed 1907) 150 Fed. 32.

by defendants' decedent, which defendants Objections to admission as evidence.— Books claimed was a forgery, and defendants alleged and papers required by an order of court to that plaintiffs had in their possession letters be produced by a party on the trial of a cause purporting to have been signed by deceased, remain subject to objections to their rele. written in the same handwriting as the docuvancy as evidence which must be passed upon ment sued on, in which reference was made at the trial. International Coal Min. Co. r. thereto, it was held that the defendants were Pennsylvania R. Co., (1907) 152 Fed. 557. entitled to an order under this section requir

Review of order. - An order made by a ing plaintiffs to produce such letters for deCircuit Court under this section, requiring fendants' inspection and to permit photoa party to an action at law to produce books graphic copies to be made thereof under proper or writings at the trial, is an interlocutory restrictions. Newcomb v. Burbank, (1907) and not a final order, and is therefore not re- 159 Fed. 568. viewable on a writ of error prior to final Records in possession of others than parties. judgment in the cause. Pennsylvania R. Co. - Where a complaint alleged that certain v. International Coal Min, Co. (C, C. A. nautical charters and contracts had been sold 1907) 168 Fed, 765,

by defendants to a corporation which was not a party to the action, it was held that the complainant, in the absence of anything tending to indicate that such charters, etc., had not been transferred to the corporation, was not entitled to an order directing defend ants to produce the same, together with the stock book, minute book, and all papers and bank and check books of the corporation, for plaintiff's inspection before trial, under this section. Ridgely v. Richard, (1904) 130 Fed. 387.

Production at and before trial. – For more than a century trial courts have disagreed as to whether, under this enactment, the procedure is limited to a requirement that the books, documents, and writings be produced at the trial, or, in the discretion of the court, before the trial, for such investigation and examination as the party obtaining the order might desire. The question has at last been

authoritatively settled by the United States Supreme Court, which has decided that a court of law is not empowered to compel one party to an action to produce books and papers in advance of trial for his adversary's examination and inspection, by the provisions of R. S. sec. 724. Carpenter v. Winn. (1911) 221 U. S. 533, 31 S. Ct. 683, 55 U. S. (L. ed.) 842, reversing (1908) 165 Fed. 636, 91 C. C. A. 301.

To the same effect as the first paragraph of the original note, see Cameron Lumber Co. t. Droney, (1904) 132 Fed. 304; American Banana Co. 1. United Fruit Co., (1907) 153 Fed. 943; Shaefer 0. International Power Co., (1907) 157 Fed. 896; Rosenberger r. Shubert, (1910) 182 Fed. 411.

To the same effect as second paragraph of the original note, see Cassatt v. Mitchell Coal, etc., Co., (C. C. A. 1907) 150 Fed. 32.

Vol. III, p. 5, sec. 860.

Repeal. - This section was expressly re. pealed by the Act of May 7, 1910, ch. 216, 36 Stat. L. 352. U. S. v. Mills, (1911) 185 Fed. 318; Sire v. Berkshire, (1911) 185 Fed. 967.

For cases under this section, see American Lith. Co. v. Werckmeister, (1911) 221 U. S. 603, 31 S. Ct. 676, 55 U. S. (L. ed.) 873; Rad. ford u. U. S., (C. C. A. 1904) 129 Fed. 49; Hammond Lumber Co. v. Sailors' Union,

(1906) 149 Fed. 577; Johnson v. U. S., (C. C. A. 1908) 163 Fed. 30; Alkon v. U. S., ic. C. A. 1908) 163 Fed. 810; Hammond Lumber Co. r. Sailors' Union, (1909) 167 Fed. 809; Cohen v. U. S., (C. C. A. 1909) 170 Fed. 715; Kerrch v. U. S., (C. C. A. 1909) 171 Fed. 366; Foster 0. U. S., (C. C. A. 1910) 178 Fed. 165; Com. v. Ensign, (1910) 228 Pa. St. 400, 77 Atl. 657.

Vol. III, p. 7, sec. 861.

Mode of proof. — Under the express terms But in a case from the Eighth Circuit it of this section, in common-law actions in the appeared that on a former trial a witness had United States courts the witnesses must ap- testified for the plaintiff, and on the record pear in open court, unless the case falls with trial on proof that this witness was about in one of the statutory exceptions. Compania two hundred miles distant from the place of Azucarera Cubana v. Ingraham, (1910) 180 trial, but without proof of any effort to proFed. 516.

cure his attendance, or that it was not prac. Evidence admissible. - The federal courts ticable to have obtained his testimony by are not required by this section to exclude deposition de bene esse, or otherwise, as pro. evidence which, although not within the terms vided by R. $. secs. 863–867, the plaintiff of such section or of the following provisions offered the testimony of this witness given on relating to depositions, is still admissible un the former trial, to be read from the stenog. der the principles of evidence recognized by rapher's notes. It was held that the evidence the common law before and at the time of its was not admissible. Diamond Coal, etc., Co. enactment. Toledo Traction Co. v. Cameron, v. Allen, (C. C. A. 1905) 137 Fed. 705. (C. C. A. 1905) 137 Fed. 48.

Testimony of deceased witness on former Testimony given at former trial. - In trial. -- It is competent for a party, on the Toledo Traction Co. v. Cameron, (1905) 137 second trial of an action in a federal court, Fed. 48, 69 C. C. A. 28, it was held that Rev. under the general rule, to prove the testimony Stat. Ohio, sec. 5343a, which authorizes the given on the former trial by a witness who admission in evidence of the testimony given has since died, there being no federal statute by a witness on a former trial of the same on the subject. Nome Beach Lighterage, etc., case when the witness is dead or beyond the Co, v. Standard Marine Ins. Co., (1907) 156 jurisdiction of the court, is in conformity with Fed. 484, affirming (C. C. A. 1909) 167 Fed. the rule recognized at common law, which per. 119. mits the use of such evidence generally where Hearing on rule to show cause. - This secit is impossible to obtain a viva voce exami tion does not prevent the use of depositions nation of the witness, and is not in conflict on a hearing of a rule to show cause when with R. S. sec. 861, and may properly be ap- there is no local practice forbidding the use plied in an action at law in a federal court of depositions in such cases, Importers', etc., sitting within the state, where the witness is Nat. Bank v. Lyons, (1905) 134 Fed. 510, without the district and more than one hun. dred miles distant from the place of trial.

Vol. III, p. 8, sec. 862.

Repeal of Judiciary Act of 1789. — To the same effect as the original note, see Hyams t. Federal Coal, etc., Co., (C. C. A. 1907) 162 Fed. 970.

Vol. III, p. 8, sec. 863.

Testimony of foreign witnesses cannot be Ruling on objections. - It is not the duty taken under this section. Compania Azu- of an auxiliary court or judge, within whose carera Cubana v. Ingraham, (1910) 180 Fed. jurisdiction testimony is being taken in a suit 516.

pending in the court of another district, to Claim of privilege. - On the taking of a consider or determine the competency, ma. deposition de bene esse in another federal dis. teriality, or relevancy of the evidence which trict, under this section, the witness may as. one of the parties seeks to elicit. It is the sert his legal privilege to refuse to give testi. duty of such a court or judge to compel the mony or to produce documents called for the production of the evidence, although the judge same as though examined in open court, and deems it incompetent, irrelevant, or immain such case he has a right to be heard before terial, unless the witness or the evidence is the court in such district, and to have his privileged, or it clearly and affirmatively apclaim of privilege determined by such court, pears that the evidence sought cannot posbefore being compelled to answer or produce sibly be competent, material, or relevant, and the documents. Crocker-Wheeler Co. v. Bul- that it would be an abuse of the process of lock, (1904) 134 Fed. 241.

the court to compel its production. Perry 0. Subpena duces tecum. - A federal court Rubber Tire Wheel Co., (1905) 138 Fed. 836; has power to issue a subpena duces tecum Dowagiac Mfg. Co. v. Lochren, (C. C. A. to compel the production of books or papers 1906) 143 Fed. 211. by a witness being examined de bene esse In Butte, etc., Consol. Min. Co. 1. Montana within the district, under this section, but Ore Purchasing Co., (1905) 139 Fed. 843, it such subpæna is not a matter of right, and appeared that on the taking of the deposition may not be issued as such by the clerk, but of a witness in an action at law, in another only on an order of the court, made upon pre district, under this section, questions asked liminary proof that the documents called for by plaintiff were objected to as being irreleare in the possession of the witness, and are, vant or immaterial, or as calling for incomprima facie, competent and material evidence petent testimony, or as touching matters in the case, although the court will not about which the witness was privileged not finally determine their materiality or admis- to answer, and the witness having refused to sibility until the documents have been pro- answer, the matter was certified to the Cir. duced, and have been brought before it in cuit Court of the district where the testimony proceedings to compel the witness to ex was being taken. It was held that, as the hibit the same before the examiner. A notary power and duty of such court to pass on the public before whom depositions de bene esse objections was unsettled, it would require the are to be taken, under this section, has no witness to answer all questions in conformity power to issue a subprna duces tecum to to the equity practice, to enable the question compel the production of books and papers by to be taken before the appellate court in a witness. Dancel v. Goodyear Shoe Ma. contempt proceedings should the witness still chinery Co., (1904) 128 Fed. 753. See also refuse to answer. Crocker-Wheeler Co. v. Bullock, (1904) 134 Proceedings for deportation of Chinese. Fed. 241.

Proceedings brought under the Chinese Ex. Nonresidence of witness. — A party is not clusion Act for the deportation of a Chinese entitled to take the deposition of a witness person are civil, and not criminal, and there. in a federal court, under this section, where fore a defendant claiming to be a native of the witness actually lives at the place of the United States may avail himself of the trial and expects to remain there, although right given by this section to take and use his legal domicile may be elsewhere. Frost v. depositions de bene esse. In re Lam Jung Barber, (1909) 173 Fed. 848.

Sing, (1907) 150 Fed. 608. Examination of parties to suit. - A plain Mode of taking deposition. This section tiff in a federal court, who is a citizen of an. authorizes the taking of testimony of any other state and resides more than one hun witness in a civil case pending in a federal dred miles from the place of trial, may be district of the Circuit Court by depositions compelled by the defendant to appear and de bene esse, when the witness lives a greater testify by deposition de bene esse in advance distance from the place of trial than one hun. of the trial, under this section, and such dred miles, etc., and Act Cong. March 9, deposition may be taken at any place where 1892, ch. 14, 27 Stat. L. 7, 3 Fed. Stat. he is found and served with subpæna. Blood Annot. 22, provides that, in addition to the 8. Morrin, (1905) 140 Fed. 918.

taking of depositions in a federal court, depo. The same rule is applicable to a defendantsitions may be taken as prescribed by the in an action at law pending in a Circuit Court laws of the state in which such courts are of the United States, who resides out of the held. It has been held that where a party district, and more than one hundred miles to a suit in the federal court applied to take from the place of trial. Hartman r. Feen- a deposition on the ground that the witness aughty, (1905) 139 Fed. 887.

resided more than one hundred miles from

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