such appropriations. The annual appropriations 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.

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

Rent in excess of appropriation.

- In Hooe v. 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 Service 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

It has been held that under such Acts a railway 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.

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. 3678.

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

Practice in equity. — This section has no application to suits in equity. Oro Water, etc., Co. v. Oroville, (1908) 162 Fed. 975.

"Parties." - Where an action was brought against a railroad company alone for alleged violation of the Interstate Commerce Act, it was held that the corporation's officers and agents were not "parties" within this section authorizing federal courts, on notice, to require the "parties" to produce books or writings in their possession or power which contain evidence pertinent to the issue, etc. Cassatt v. Mitchell Coal, etc., Co., (C. C. A. 1907) 150 Fed. 32.

Objections to admission as evidence.- Books and papers required by an order of court to be produced by a party on the trial of a cause remain subject to objections to their relevancy as evidence which must be passed upon at the trial. International Coal Min. Co. v. Pennsylvania R. Co., (1907) 152 Fed. 557.

Review of order. An order made by a Circuit Court under this section, requiring a party to an action at law to produce books or writings at the trial, is an interlocutory and not a final order, and is therefore not reviewable on a writ of error prior to final judgment in the cause. Pennsylvania R. Co. r. International Coal Min, Co. (C, C, A. 1907) 158 Fed, 765,

Statute not exclusive. The power of a federal court to require the production of documentary evidence is not limited to an order made on motion, as provided by this section, but it has inherent power, as well as express authority, under section 716 (4 Fed. Stat. Annot. 498), to issue a subpoena duces tecum and to enforce obedience thereto by proceedings for contempt. American Lith. Co. r. Werckmeister, (C. C. A. 1908) 165 Fed.

426.

Photographic copies. Where plaintiffs sued on a document alleged to have been signed by defendants' decedent, which defendants claimed was a forgery, and defendants alleged that plaintiffs had in their possession letters purporting to have been signed by deceased, written in the same handwriting as the document sued on, in which reference was made thereto, it was held that the defendants were entitled to an order under this section requir ing plaintiffs to produce such letters for defendants' inspection and to permit photographic copies to be made thereof under proper restrictions. Newcomb v. Burbank, (1907) 159 Fed. 568.

Records in possession of others than parties. Where a complaint alleged that certain nautical charters and contracts had been sold

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 defendants 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

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

Repeal. This section was expressly repealed 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; Radford v. U. S., (C. C. A. 1904) 129 Fed. 49; Hammond Lumber Co. v. Sailors' Union,

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. v. Droney, (1904) 132 Fed. 304; American Banana Co. v. United Fruit Co., (1907) 153 Fed. 943; Shaefer v. International Power Co., (1907) 157 Fed. 896; Rosenberger v. 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.

(1906) 149 Fed. 577; Johnson v. U. S., (C. C. A. 1908) 163 Fed. 30; Alkon v. U. S., (C. C. A. 1908) 163 Fed. 810; Hammond Lumber Co. v. 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 v. 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 of this section, in common-law actions in the United States courts the witnesses must appear in open court, unless the case falls within one of the statutory exceptions. Compania Azucarera Cubana v. Ingraham, (1910) 180 Fed. 516.

Evidence admissible. — The federal courts are not required by this section to exclude evidence which, although not within the terms of such section or of the following provisions relating to depositions, is still admissible under the principles of evidence recognized by the common law before and at the time of its enactment. Toledo Traction Co. v. Cameron, (C. C. A. 1905) 137 Fed. 48.

Testimony given at former trial. - In Toledo Traction Co. v. Cameron, (1905) 137 Fed. 48, 69 C. C. A. 28, it was held that Rev. Stat. Ohio, sec. 5343a, which authorizes the admission in evidence of the testimony given by a witness on a former trial of the same case when the witness is dead or beyond the jurisdiction of the court, is in conformity with the rule recognized at common law, which permits the use of such evidence generally where it is impossible to obtain a viva voce examination of the witness, and is not in conflict with R. S. sec. 861, and may properly be applied in an action at law in a federal court sitting within the state, where the witness is without the district and more than one hundred miles distant from the place of trial.

But in a case from the Eighth Circuit it appeared that on a former trial a witness had testified for the plaintiff, and on the record trial on proof that this witness was about two hundred miles distant from the place of trial, but without proof of any effort to procure his attendance, or that it was not prac. ticable to have obtained his testimony by deposition de bene esse, or otherwise, as provided by R. S. secs. 863-867, the plaintiff offered the testimony of this witness given on the former trial, to be read from the stenographer's notes. It was held that the evidence was not admissible. Diamond Coal, etc., Co. r. Allen, (C. C. A. 1905) 137 Fed. 705.

Testimony of deceased witness on former trial. It is competent for a party, on the second trial of an action in a federal court, under the general rule, to prove the testimony given on the former trial by a witness who has since died, there being no federal statute on the subject. Nome Beach Lighterage, etc., Co. v. Standard Marine Ins. Co., (1907) 156 Fed. 484, affirming (C. C. A. 1909) 167 Fed. 119.

Hearing on rule to show cause. This section does not prevent the use of depositions on a hearing of a rule to show cause when there is no local practice forbidding the use of depositions in such cases. Importers', etc., Nat. Bank v. Lyons, (1905) 134 Fed. 510,

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

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

Testimony of foreign witnesses cannot be taken under this section. Compania Azucarera Cubana v. Ingraham, (1910) 180 Fed. 516.

Claim of privilege. On the taking of a deposition de bene esse in another federal district, under this section, the witness may as sert his legal privilege to refuse to give testimony or to produce documents called for the same as though examined in open court, and in such case he has a right to be heard before the court in such district, and to have his claim of privilege determined by such court, before being compelled to answer or produce the documents. Crocker-Wheeler Co. v. Bullock, (1904) 134 Fed. 241.

Subpoena duces tecum. A federal court has power to issue a subpoena duces tecum to compel the production of books or papers by a witness being examined de bene esse within the district, under this section, but such subpoena is not a matter of right, and may not be issued as such by the clerk, but only on an order of the court, made upon preliminary proof that the documents called for are in the possession of the witness, and are, prima facie, competent and material evidence in the case, although the court will not finally determine their materiality or admissibility until the documents have been produced, and have been brought before it in proceedings to compel the witness to exhibit the same before the examiner. A notary public before whom depositions de bene esse are to be taken, under this section, has no power to issue a subpoena duces tecum to compel the production of books and papers by a witness. Dancel v. Goodyear Shoe Machinery Co., (1904) 128 Fed. 753. See also Crocker-Wheeler Co. v. Bullock, (1904) 134 Fed. 241.

Nonresidence of witness. -A party is not entitled to take the deposition of a witness in a federal court, under this section, where the witness actually lives at the place of trial and expects to remain there, although his legal domicile may be elsewhere. Frost v. Barber, (1909) 173 Fed. 848.

Examination of parties to suit. — A plaintiff in a federal court, who is a citizen of another state and resides more than one hundred miles from the place of trial, may be compelled by the defendant to appear and testify by deposition de bene esse in advance of the trial, under this section, and such deposition may be taken at any place where he is found and served with subpoena. Blood v. Morrin, (1905) 140 Fed. 918.

The same rule is applicable to a defendant in an action at law pending in a Circuit Court of the United States, who resides out of the district, and more than one hundred miles from the place of trial. Hartman v. Feenaughty, (1905) 139 Fed. 887,

-

Ruling on objections. It is not the duty of an auxiliary court or judge, within whose jurisdiction testimony is being taken in a suit pending in the court of another district, to consider or determine the competency, materiality, or relevancy of the evidence which one of the parties seeks to elicit. It is the duty of such a court or judge to compel the production of the evidence, although the judge deems it incompetent, irrelevant, or immaterial, unless the witness or the evidence is privileged, or it clearly and affirmatively appears that the evidence sought cannot possibly be competent, material, or relevant, and that it would be an abuse of the process of the court to compel its production. Perry v. Rubber Tire Wheel Co., (1905) 138 Fed. 836; Dowagiac Mfg. Co. v. Lochren, (C. C. A. 1906) 143 Fed. 211.

In Butte, etc., Consol. Min. Co. v. Montana Ore Purchasing Co., (1905) 139 Fed. 843, it appeared that on the taking of the deposition of a witness in an action at law, in another district, under this section, questions asked by plaintiff were objected to as being irrele vant or immaterial, or as calling for incompetent testimony, or as touching matters about which the witness was privileged not to answer, and the witness having refused to answer, the matter was certified to the Cir cuit Court of the district where the testimony was being taken. It was held that, as the power and duty of such court to pass on the objections was unsettled, it would require the witness to answer all questions in conformity to the equity practice, to enable the question to be taken before the appellate court in contempt proceedings should the witness still refuse to answer.

Proceedings for deportation of Chinese.Proceedings brought under the Chinese Exclusion Act for the deportation of a Chinese person are civil, and not criminal, and therefore a defendant claiming to be a native of the United States may avail himself of the right given by this section to take and use depositions de bene esse. In re Lam Jung Sing, (1907) 150 Fed, 608.

Mode of taking deposition. This section authorizes the taking of testimony of any witness in a civil case pending in a federal district of the Circuit Court by depositions de bene esse, when the witness lives a greater distance from the place of trial than one hun dred miles, etc., and Act Cong. March 9, 1892, ch. 14, 27 Stat. L. 7. 3 Fed. Stat. Annot. 22, provides that, in addition to the taking of depositions in a federal court, depositions may be taken as prescribed by the laws of the state in which such courts are held. It has been held that where a party to a suit in the federal court applied to take a deposition on the ground that the witness resided more than one hundred miles from

A

Vol. III, p. 20, sec. 866.

Mode of taking deposition. - Equity rule 67, which authorizes the evidence in a cause to be taken orally upon application by either party for an order therefor, is applicable to depositions taken on a commission issued under this section, and where such a commission is applied for by one party to take the testimony of foreign witnesses, the court has power to permit the adverse party to crossexamine such witnesses orally. Encyclopædia Britannica Co. r. Werner Co., (1905) 138 Fed. 461.

Sufficiency of allegations in application. In Zych v. American Car, etc., Co., (1904) 127 Fed. 723, an application for a dedimus potestatem to take testimony before trial alleged that the action was to recover damages for the negligent death of plaintiffs' father, and that the plaintiffs are nonresidents and minors; that the negligence alleged consisted in defendant's failure to instruct deceased regarding the dangers of his employment, he being ignorant and illiterate, etc.; that the only persons who could give information as to decedent's death, and the rules and regulations under which decedent's business was conducted at the time, are persons in defendant's employ; and that the truth of the allegations of plaintiffs' complaint must necessarily be established by the testimony of defendant's servants; that defendant has refused to permit plaintiffs' representative to enter its works and examine the place of the accident, and that at the inquest over deceased's remains five eyewitnesses testified, two of whom, since the accident, have left the state; that plaintiffs are unable to ascertain their whereabouts or that of another of such eyewitnesses; and that plaintiffs verily believe there is danger of losing the testimony of other important witnesses through death, disease, or accident. It was held that such allegations were sufficient to entitle plaintiffs to the relief demanded under this section, authorizing the taking of depositions of witnesses in order to prevent a failure or delay

of justice.

Fees and mileage of witnesses. Where the prevailing party in an action at law in a federal court has taken testimony in a foreign

country under a dedimus potestatem, pursuant to this section, he is entitled to tax as a disbursement the fees and mileage of the witnesses at the same rate as though they had attended upon the trial. Agius v. Perkins Co., (1907) 151 Fed. 958.

Witnesses living at distance. An affidavit that witnesses live more than one hundred miles from the place of trial of the action, without proof of a well-grounded apprehension of a failure or delay of justice, is insufficient for the issuance of a dedimus under this section, Magone v. Colorado Smelting, etc., Co., (1905) 135 Fed. 846.

Bills to perpetuate testimony. The second clause of this section, which provides that any Circuit Court, upon application to it as a court of equity, may, according to the usages of chancery, direct depositions to be taken in perpetuam rei memoriam if they relate to any matters that may be cognizable in any court of the United States," is wholly separate from the first clause authorizing any federal court, where necessary in order to prevent a failure or delay of justice in a pending case, to grant a dedimus potestatem, to take depositions according to the common usage, and is a recognition and regulation of the general power of the federal court as courts of chancery under Const., art 3, sec. 2, to entertain bills to perpetuate testimony, where the complainant cannot himself bring the matter to which the desired testimony relates into present judicial investigation. Westinghouse Mach. Co. v. Electric Storage Battery Co., (C. C. A. 1909) 170 Fed, 430.

Patent infringement suit. A complainant may maintain a bill in equity in a Circuit Court to perpetuate testimony, where it shows that defendant charges that an article manufactured and sold by complainant infringes a patent owned by defendant, and threatens suit against complainant and its customers, but refuses to bring such suits, and that complainant can prove that such patent is void by the testimony of certain designated witnesses, but not otherwise. Westinghouse Mach. Co. v. Electric Storage Battery Co., (C. C. A. 1909) 170 Fed. 430.