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for a considerable length of time increased the liability jurors generally might be presumed to have sufficient to be destroyed or injured by fire were held to be in- | knowledge of them to enable them to discharge their admissible, on the ground that the subject was within duty when the facts were placed before them, that it common knowledge. S. C., 7 Am. Rep. 522.

was safer to rely upon them than upon the opinions of In Sowers v. Dukes, 8 Minn. 23, the action was to re witnesses, however expert they might be. Here the cover for a breach of contract in neglecting to build subject of inquiry related to the common elements of and keep in repair a fenco around a certain field fire, and wind, and dry wood, and brush, and timber, whereby plaintiff's crops were injured. Upon the trial with which every man has some acquaintance; and the plaintiff, a witness in his own behalf, was asked whether, under all the circumstances, it was a safe, this question: “ Was the fence a proper fence to turn prudent or proper act to set a fire, a jury with the comstock, and could they easily put their heads through mon experience which, if not all men, most men have, between the fence and rider?” This question was ob would be sufficiently competent to form an opinion. jected to on the ground that the jurors were the proper This is not a case where it was impossible to place the judges as to whether the fence was sufficient after it facts before the jury. The character of the wind, conhad been described. The objection was overruled, dition of the soil as to being dry or not, the character and the witness was permitted to answer; and the of the brush and timber, the nature of the ground, the question was held to be incompetent, and the judg. | distance, exposure, every thing, could be proved so that ment was reversed for that reason. It was held that the jury would have substantially as correct knowlthe witness should bave stated the facts; that the jury edge in reference to it as the witnesses; if not as corshould have based their judgments upon the facis, rect, they could acquire knowledge sufficiently correct and that it was not a proper subject for opinion evi to enable them to discharge their duty as jurors. dence.

We have carefully examined the numerous cases In Enright v. S. F. & S. J. R. Co., 33 Cal. 230, in a cited in reference to this evidence in the brief of the suit against the defendant for injury to plaintiff's cat learned counsel for the defendant, and none of them tle caused by an insufficient fence, it was held that the sustain its admission. They show that farmers may evidence of farmers that the fence was sufficient to be permitted to give their opinions of the value of turn cattle was improper.

farms, and farın stock and produce; that witnesses In Bills v.City of Otlumwa,35 Iowa, 109, the defendant may give their opinions on questions of identity, or was sued for injuries to the plaintiff alleged to have whether a person is under the influence of liquor, and been sustained in consequence of the bad condition of as to many other matters. There is a broad range for the street, which caused him to be thrown from a expert evidence, but none of the authorities go far wagon loaded with hay; and it was held that the opin enough to hold that this evidence is within the proper ion of a farmer that a wagon loaded in the manner in range. which the one was upon which the plaintiff was riding The question of expert evidence was not inyolved in was not safe for riding upon over ordinary roads was the case of Hays v. Miller, 6 Hun, 320; 10 N. Y. 112. inadmissible.

The action in that case was brought to recover damIn Concord R. v. Greely, 23 N. II. 237, in a procoed ages caused by fire to the lands of the plaintiff's estate ing to assess damages for a right of way of a railroad, through the alleged negligence of the defendant; and it was held that the opinion of a farmer as to the effect the referee, instead of passing upon the question of upon a farm of a railroad passing through it was inad negligenco directly as one of fact, made special findings missible.

of the circumstances, and from those found negligence In Paige v. IIazard, 5 Hill, 603, in an action for neg as a conclusion of law, and he ordered judgment in ligence in injuring and sinking a canal boat, the plain- favor of the plaintiff. The question under consideratiff, after proving the cause of action as alleged, called tion upon the appeal was whether the inference of law a witness, who testified that he was a boatman, and was justified by the facts found, The appellant kuew the boat in question previous to her being in claimed that it was the duty of this court to review jured; that he had raised sunken boats and caused the conclusions of the referee, and decide, as a matter them to be repaired, and ho was then asked the follow of law, whether the facts and circumstances found by ing question : “ From the description of the situation him established that the burning upon the defendant's of the boat, as given by the witnesses, what would the land was conducted in an improper and negligent damage be?” and it was held improper, and that the manner, or at an improper time and season, or witness' answer was inadmissible.

whether it was conducted in a proper manner and at a In Teall v. Barlon, 40 Barb. 137, the action was proper time; and we held that this court was not combrought to recover damages caused by fire communi- | petent to draw the conclusions and inferences from the cated by a steam dredge, and it was held that a ques- facts; that that was a matter for the referee, and that tion put to a witness who had had experience, as to we were concluded by the inferences and conclusions whether he considerod it dangerous to use steam drawn from the facts by him; and in discussing that dredge without a spark-catcher, was properly over question some language was used by the judge writing ruled, it not being a question of science or skill, and the opinion in this court, which, it is claimed, favors the not falling within the rule relating to evidence by ex contention of the respondent here that these questions perts.

were proper to elicit expert evidence. But as we In McGregor v. Brown, 10 N. Y. 114, the action was have seen, the learned judge writing the opinion did by a landlord against his tenant for waste; and it was not have in mind the subject of expert evidence, and held that the opinions of the witnesses that the acts was simply discussing the competency and power of complained of were not injurious to the inheritance, this court to draw inferences from facts and ciroum. and thereforo not wasto, were inadmissible.

stances found by the referee; and it was held, as we In all thoso cases it was held that the witnesses always hold in such cases, that the inferences are for should be confined to a statement of the facts, and

the triers of facts. that it was the province of the jury to draw inferences We are therefore constrained to reverse this judgand form judgments. In most of them it was as proba ment and grant a new trial, as we think au important ble as it was here that some of the jurors might not rule of evidence was violated. To uphold the proknow as much about the subject of inquiry, and not be priety of these questions would carry the rule of exas capable of forming opinions or drawing inferences pert evidence further than it has ever been carried in from the facts as tho witnesses; and yet it was held, this State, and would be an unwarranted invasion of as the subjects of inquiry wore of such a nature that the rule which confiues witnesses to facts and excludes

AP

their opinions. It is important to maintain the rule supra, in each of which a recovery was bad on the in its integrity, and to permit as few invasions of it as ground that the defendant owed a duty to the person the proper administration of justice will allow.

injured in one case a postal clerk and in the other an The judgment should be reversed and a new trial express agent), and neglected to perform it. That granted, costs to abide the event.

principle, we think, the plaintiff may also successfully All concur except Miller, J., dissenting.

invoke, and find support in the other case, Putnam v, Judgment reversed. Broadway, etc., R. Co., supru cited by the respond

ent.

It was there held, in substance, that a railroad comNEGLIGENCE RAILROAD - THROWING MAIL pany was bound to exercise the utmost vigilance, not BAGS.

only in guarding its passengers against careless inter

ference by others, but even against violence, and if in NEW YORK COURT OF APPEALS, DEC. 16, 1884.

cousequence of neglecting this duty he receives injury, which in view of all the circumstances might have

been reasonably anticipated, it is liable. The defendCARPENTER V. BOSTON & ALBANY RAILROAD Co.*

ant prevailed in that case on the ground that the misOne waiting on the platform at a railroad station for a train, chief was one which it had no reason to expect, and so

and injured by a mail bag thrown from the train while in was under no obligation to guard against. But if it motion, such throwing being customary and well known had been made to appear that he who made the assault to the company, may maintain an action against the was vicious and accustomed under similar circumstanrailroad company.

ces to do hurt, and the defendant had been notified of PPEAL from judgment of the General Term, third

the fact, a duty would, as the case also holds, have department, entered upon an order.

been imposed upon it either to remove him from the This action was brought to recover damages for in

car, or inform its other passengers of their danger, and juries alleged to have been caused by defendant's neg

failing to do so, would be responsible for such harm as ligeuco.

he occasioned. To the same effect is Nsuster v. C. M. & Plaintiff desiring to take passage on defendant's

St. P. R. Co., 21 N. W. Rep. 223, Sup. Ct. of Wis. road, and having purchased a ticket, went out on the

There the plaintiff was at work for the defendant at platform of the depot to wait the arrival of an up

its depot, standing on a scaffold erected by it; the deproaching train. The traiu had a postal car attached

fendant's train, of which a inail car formed part, ran ahead of the passenger cars. As said car passed the

past, aud a mail bag thrown from it by a postal agent platform a heavily-loaded mail bag was thrown there

struck the leg of the scaffold with such force that it from by the postal clerk or agent in charge, and struck

fell and the plaintiff was injured. He failed in his acplaintiff.

tion. Upon appeal the court in answer to the claim

that the defendent was negligent in not informing the Charles L. Beale and R. E. Andrews, for appel- plaintiff of his peril said: “All the evidence on that lant,

subject is to the effect that the mail bag was usually John Cadman, for respondent.

discharged near the mail catcher, which was two DANFORTH, J. The plaintiff was injured before the

hundred feet west of the depot, and there is no testiactual commencement of his journey, but ho was law

mony whatever that it had ever before been thrown fully on the platform because he was a passenger, and

off at the depot," adding: “The company is not was approaching the train, as the defendant concedes,

chargeable with notice that it was likely to be thrown “in tbe usual and ordinary way,” to enter the car on

off at the depot, and hence was not required to guard, which he had purchased a right to travel. The law in

by notice or otherwise, against an accident to the such a case is well settled. It imposes an obligation

plaintiff resulting from its being thrown off there on on the railroad company to take reasonable care that

the occasion in question." In such cases no doubt a person holding that relatiou to it shall while on its

scienter is the gist of tho action, and in those cited it premises be exposed to uo unnecessary danger or one

was lacking. In the one before us, it was clearly esof which it is aware, and requires it to provide for him

tablished. The defendant constructed the postal car a safe passage to the train. It is obvious that was not

and owned it. It was occupied under defendant's done in this case. The plaintiff was knocked down,

permission for a certain use, and it may be conceded aud severely hurt by a loaded inail bag thrown from

that thero was nothing in the nature of that use to rethe postal car while the train was in motion, and the

quire the defendant to expect that the contents of only answer to his demand for compensation is that

the car would be violently cast upon the platform the missile was negligently thrown by the person in

while the train was in motion, and before the passen

gers thereon could reach the cars. Ilad this accident charge of the mail car, an employee or servaut of the United States, and uot of the company; that he was

therefore happened on the first passage of the car, the an independent agent, and hence the defendant says,

defendant might be excused, as in the case cited, on it is not liable for his act. In support of this conten

the ground that the mere act of the postal clerk in tion its learned counsel cites Vorton v. Western R. Co.,

throwing off the mail bag at that place, without the 15 N. Y. 444; Blair v. Erie R. Co., 66 id. 313; S. C., 23

previous knowledge of the defendant of his intention

to do so, was not negligence on its part. Am. Rep. 55; Penn. R. Co. v. Price, 96 Pemu. St. 256; 23 Alb. L. J. 69; S. C., 14 Am. Rep. 190; and P’ut

But the fact is quite otherwise. The practice which

led to the accident was a familiar and daily one. It nam v. Broadway, etc., R. Co., 55 N. Y. 113. I am unable to give to those cases that consequence.

was proren by uncontradicted evidence that this The Pennsylvania case was an action against a railroad

method of discharging mail bags from the postal car, company for damages for the death of a postal clerk,

upon the platform provided for passengers, and while caused by a collision. A recovery was denied, but the

they were upon it and exposed to injury, had prequestion turned solely upon the construction of a

vailed for a long time, under circumstances from statute of that State. It has no application here. But

which notice to the defendant might be fairly implied, it it had, the decision is directly opposed to that of

and with the actual knowledge of the defendant's this court in cases also cited by the respondent, viz. :

agents, in whose presence the act was frequently, if Norton v. IVestern R. Co., aud Blair v. Erie R. Co.,

not daily:performed, and so far as appears without the

slightest objection on their part. They were there*To appear in 97 N. Y.

fore chargeable with notice that the mail bag was

ses.

do so.

likely to be thrown off in the same manner and under United States, and that the practice, pleadings, and the samo circumstances at any arrival of a postal car. forms and modes of proceedings in such cases shall conBy this knowledge the defendant was brought fairly form as near as may be to those of the courts of the States within the rule which enjoins care, not only on the in which the courts sit, is applicable only where there is part of itself and its servants, but also like care in pre no rule on the same subject prescribed by act of Conventing injury from the careless or wrongful act of any gress, and where the State rule is not in conflict with any other person whom it permits to come upon its premi

such law.

The statute of New York, which permits a party to a suit to The occupants of the postal car are no exception to be examined by his adversary as a witness at any time this rule; they were not strangers or uninvited. They previous to the trial in an action at law, is in conflict with came under a contract voluntarily made by the de the provisions of the Revised Statutes of the United fendant, and which secured the carriage and delivery States which enacts that " The mode of proot in the of the mails upon such conditions as it imposed or ac trial of actions at common law shall be by oral testiceded to. Its police power extended over the persons

mony and examination of witnesses in open court, except employed in it, while they were on the defendant's as hereinafter provided.” track or on its stations, certainly not to interrupt them The courts of the United States sitting in New York have no in the discharge of their official duties, but so far as power therefore to compel a party to submit to such an practicable to prevent injury to those for whose examination, and no power io punish him for a refusal to safety it was bound to provide. So it was held in Stewart v. Brooklyn & Cross Toun R., 90 N. Y. 588, Nor can the United States court enforce such an order made applying the rule to violence committed by strangers by a State court before the removal of the case into the and co-passengers in Flint v. Norwich & N. Y. Trans. Circuit Court of the United States. Co., 31 Com. 554, to violence from whatever source Where a person is in custody, under an order of the Cirarising, and this although the aggressors were soldiers cuit Court, for contempt in refusing to answer under such received upon the boat on compulsion. The doctrine of an order, this court will release him by writ of habeas that caso is approved and its reasoning followed in the corpus on the ground that the order of imprisonment was case of Putnam, supra.

without the jurisdiction of that court, Nor was it necessary in order to charge the defendant with the duty of care and vigilance, that on somo

ETITION for writs of habeas corpus and certiorari. former occasion a like in jury bad happened. The act

The opinion states the facts. was itself dangerous. There was under the circum MILLER, J. This is an application on the part of stances of which the defendant had notice, a natural

Clinton B. Fisk for a writ of habeas corpus, to be diand probable connection between the act of throwing rected to the marshal of the Southern District of New out a mail bag with its contents and the injury which York, in whose custody the petitioner is held under an actually happened. It could have been foreseen, and order of the Circuit Court for that district. the defendant owed a duty to those who might prob The history of the case which resulted in this order, ably be on the platform, either to prohibit the prac so far as it is necessary to the decision of the matter tice which made the place dangerous, or exclude the before us, may be briefly stated as follows: passenger until train time, or provido some other way Francis B. Fogg brought suit in the Supreme Court for ingress to the cars, or at least give notice to him of the State of New York against Fisk to recover the that he must take care and avoid the danger, or in sum of $63,250, on the allegation of false and fraudusome other way use reasonablo caution to prevent lent representations made by Fisk in the sale of cordamage from the danger, of which it knew or ought to tain mining stocks. have known. Whether such reasonable care was In the progress of the suit, and before the trial, the taken by notice, guarding the way or otherwise, must plaintiff obtained from the court the following order: be determined as a matter of fact, So far as

Ordered that the defendant, Clinton B. Fisk, be the case

now discloses, the defendant failed to do examined and his testimony and deposition taken as either of these things. It seems to me therefore that a party before trial, pursuant to sections 870, 871, 872, the plaintiff's evidence tended to establish every pro- 873, etc., of the Code of Civil Procedure, and that for position, which as set forth in his complaint, consti such purpose he personally be and attend before the luted a fair cause of action-damages occasioned by undersigned, a justice of this court, at the chambers the omission of duty which the defendant owed to thereof, to be held in the new county court-house, in him, and that ho was not himself in default. Those the said city of New York, on the 31st day of January, were qu ions for the jury and should have been sub 1883, at 11 o'clock in the forenoon of that day.” Amomitted to them. The plaintiff was therefore improp- tion to vacate this order was overruled and the judgerly nonsuited.

ment finally affirmed by the Court of Appeals. It follows that the judgment of the Special and Gen Thereupon the defendant appeared before the court eral Terms should be reversed and a new trial granted, and submitted to a partial examination, answering costs to abide the event.

some questions and objecting to others, until pending All concur, except Rapallo and Finch, JJ., dissent one of the adjournments of the examination, he proing.

cured an order removing the case to the Circuit Court

Judgments rcversed. of the Unitod States. [To same effect is Snow v. Fitchbury R. Co., 136 Mass. In that court an order was made to continue the ex 552, to appear in 49 Am. Rep. 40.]

amination before a master, to whom the matter was referred. The defendant refusing to be sworn and de

clining to be examined, he was brought before the FEDERAL PROCEDURE EXAMINATION OF PARTY BEFORE TRIAL-ORDER OF STATE

Circuit Court on an application for attachment for & COURT-FEDERAL COURT NO JIR

contempt in refusing to obey the order. ISDICTION-ILABEAS CORPUS.

Without disposing of this motion, the Circuit Court

made another order, to wit: SUPREME COURT OF THE UNITED STATES,

“It is hereby ordered and adjudged that the motion MARCH 2, 1885,

to punish the said defendant for such contempt stand MATTER OF CLINTON B. FISK, PETITIOXER.

adjourned to the next motion day of this court, to

wit, on the 28th day of March, 1884. The principle that in actions at law the laws of the States shall be regarded as rules of decision in the courts of the

“It is further ordered that the defendant, Clinton

B. Fisk, be and he is hereby directed and required to of the defendant, after the removal of the case into atteud personally on the 14th day of March, 1884, be the court of the Uuited States, is asserted on two fore the Honorable Addison Brown, one of the judges grounds: of this court, at a stated term thereof, at his chambers 1. That the order for his examination, having been in the post of building, in said city of New York, made by the Supreme Court of New York, under its at 11 o'clook in the forenoon of that day; then and rightful jurisdiction, while the case was pending in it, there, and on such other days as may be designated, to is still a valid order, partially executed, which acbe examined and his testimony and deposition taken companies the case into the Circuit Court; and that and continued as a party before trial, pursuant to sec in that court it cannot be reconsidered, but must be tion 870, et seq., of the Code of Civil Procedure, and enforced. for the purposes mentioned in said order of January 2. That if this be not a sound proposition, the Circuit 12, 1883, and February 12, 1884, heretofore made in this Court made an independent order of its own for the action.'

examination of the defendant, which order is justified The defendant appeared before the court in pursu- by the principle that the Code of Civil Procedure of ance of this order, and stating that he was advised by New York, under which both orders were made, is a counsel that the court had no jurisdiction to require part of the law governing the courts of the United him to answer in this manner to the questions pro States sitting within that State. pounded to him by the counsel for plaintiff, he refused We will inquire into the latter proposition first, for to do so.

the points to be considered in it lie at the foundation For this, ou further proceeding, he was held by the of the other also. court to be in contempt, and fined five hundred dol The general doctrino that remedies, whose foundalars, and committed to the custody of the marshal un tions are statutes of the Stato, are binding upon the til it was paid.

courts of the United States within its limits, is unIt is to be relieved of this imprisonment that he doubted. This well-known rule of the Federal courts, prays here the writ of habeas corpus.

founded on the act of 1789 (1 U. S. Stat. 92; Kev. Stat., The jurisdiction of this court is always challenged in $ 721), that the laws of the several States, except when cases of this general character, and often successfully. the Constitution, treaties, or statutes of the United There can be no doubt of the proposition, that the ex States otherwiso require or provide, shall be regarded ercise of the power of punishment for contempt of

as rules of decision in trials at common law, was entheir orders, by courts of general jurisdiction, is not larged in 1872 by the provision found in section 914 of subject to review by writ of error, or appeal to this the revision. This enacts that “the practice, pleadcourt. Nor is thero, in the system of federal juris ings, and forms and modes of proceeding in civil prudence, any relief against such orders, when the cases, other than equity and admiralty causes in the court bas authority to make them, except through the

Circuit and District Courts, shall conform as near as court making the order, or possibly by the exercise of

may be to the practice, pleadings, and forms and modes the pardoning power.

of proceeding existing at the time in like causes in the This principle has been uniformly held to be neces

courts of record of the State within which such Cirsary to the protection of the court from insults and cuit or District Courts are held, any thing in the rules oppressions while in the ordinary exercise of its duties,

of courts to the contrary notwithstanding.' and to enable it to enforce its judgments, and orders

In addition to this, it has been often decided in this necessary to the due administration of law, and the court that in actions at law in the courts of the United protection of the rights of suitors.

States, the rules of evidence and the law of evidence When however a court of the United States under-generally of the States prevail in those courts. takes, by its process of contempt, to punish a man for

The matter in question here occurred in the court refusing to comply with an order which that court had below in regard to a common-law action. It was in no authority to make the, order itself, being without regard to a method of procuring and using evidence, jurisdiction, is void, and tho order punishing for the and it was a proceeding in a civil causo other than contempt is equally void. It is well settled now in the equity or admiralty. jurisprudence of this court, that when the proceeding

We entertain no doubt of the decision of the Court for contempt in such a caso results in imprisonment, of Appeals of New York, that it was a proceeding authis court will by its writ of habeas corpus discharge

thorized by the statutes of New York, under which, the prisoner. It follows necessarily, that on a sugges

in a New York court, defondant was bound to antion by the prisoner, that for the reason mentioned, the order under which he is held is void, this court

The case us thus stated, is a strong one for the enwill, in the language of the statute, mako “inquiry

forcement of this law in the courts of the United into the cause of the restraint of liberty.” Section 752,

States. Ex partc Boyd, 105 U. S. 647. Rov. Stat.

But the act of 1789, which made the laws of the That the case as made by the petitioner comes, for

States rules of decision, made an exception when it the purposes of this inquiry, within tho jurisdiction of was “otherwise provided by the Constitution, treaties, this court, under the principles above mentioned,

or statutes of the United States." is established by the analogous cases: Ex parte Row

The act of 1872 evidently contemplates the same exland and others, 104 U. S. R. 164; Ex parte Lange, 18 ception by requiring the courts to conform to State Wall. 163.

practice as near as may be. No doubt it would be imBut did the court transcend its jurisdiction in fin plied, as to any act of Congress adopting State practice ing the petitioner for contempt? Or rather did it have in general terms, that it should not be inconsistent the power to make the order requiring him to submit with any express statute of the United States on the to the preliminary examination ? For if it bad that same subject. power it clearly could enforce obedience to the order There are numerous acts of Congress prescribing by fine and imprisonnient, if necessary. The record

modes of procedure in the Circuit and District of the entire proceeding in this branch of the case,

Courts of the United States at variance with laws of both in the State court and the Circuit Court, is beforo

the States in which the courts are held. Among these us, and we are thus enabled to form an intelligent are the modes of impanelling jurors, their qualificaopinion on the question presented.

tions, the number of challenges allowed to each party. The power of the court to continue the examination Two chapters of the Revised Statutes. XVII and

swer.

XVIII, embracing sections 858 to 1042, inclusive, are as a court of equity, may according to the usages of devoted to the subjects of evidence and procedure chancery direct depositions to be taken in perpetuam alone.

rei memoriain, if they relate to any matter that The case before us is eminently one of evidence and may be cognizable in any court of the United procedure. The object of the orders is to procure evi States." dence to be used on the trial of the case, and this ob Section 867 authorizes the courts of the United jeot is effected by a proceeding peculiar to the courts States, in their discretion, and according to the pracof New York, resting aloue on a statute of that State. tice in the State courts, to admit evidence so taken; There can be no doubt that if the proceeding here au and sections 868, 869, and 870 prescribe the manner of thorized is in conflict with any law of the United taking such depositions, and of the use of the subpcena States, it is of no force in the courts of the United duces tecum, and how it may be obtained. States. We think it may be added further in the same No one can examine these provisions for procuring direction, that if Congress has legislated on this sub- testimony to be used in the courts of the United States ject and prescribed a definite rule for the government and have any reasonable doubt, that so far as they apof its own courts, it is to that extent exclusive of any ply, they were intended to provide a system to govern legislation of the State in the same matter.

the practice in that respect in those courts. They A striking illustration of this effect of an act of are, in the first place, too complete, too far-reaching, Congress in prescribing rules of evidence is to be found aud too minute to admit of any other couclusion. But in section 858 of the Revised Statutes originally en we have not only this inference from the character of acted in an appropriation bill in 1864, and the amend the legislation, but it is enforced by the express lanmeut to it passed in 1865.

guage of the law in providing a defined mode of proof It now reads: “In the courts of the United States in those courts, and in specifying the only exceptions no witness shall be excluded in any action on account to that mode which shall be admitted. of color, or in any civil action because he is a party to This mode is “by oral testimony and examination or interested in the issue tried : Provided, that in ac of witnesses in open court, except as hereinafter protions by or against executors, administrators, or vided." guardians, in which judgment may be rendered for or

Of course tho mode of producing testimony under against them, neither party shall be allowed to testify the New York Code, which was applied to petitioner, against the other as to any transaction with or state is not oral testimouy and examination of a witness in ment by the testator, intestate, or ward unless called open court, within the meaning of this act of Conto testify thereto by the opposite party, or required to gress. This obviously means the production of the testify thereto by the court."

witness before the court at the time of the trial, and This act of Congress when passed made competent his oral examination then; and it does not mean proof witnesses in the courts of the United States many mil- | by reading depositions, though those depositions may lions of colored persons who were not competent by have been taken before a judge of the court, or even the laws of the States in which they lived, and prob- in open court, at some other time than during the ably as many moro persons as parties to suits, or in trial. They would not, in such case, be oral testiterested in the issues to be tried, who were excluded

mony. The exceptions to this section, which all reby the laws of the States. It has never been doubted late to depositions, also show that proof by deposition that this statute is valid in all the courts of the United cannot be within the rule, but belongs exclusively to States, not only as to the introduction of persons of the exceptions. color and parties to suits; but in the qualification

We come now to inquire if the testimony sought to made by the proviso where its language differs from

bo obtained from petitioner by this mode comes within provisions somewhat similar in State statutes, the act

the exception referred to in section 861. These excepof Congross, critically construed, has always been held

tions relate to cases where it is admissible to take to govern tho court. Monongahela Bank v. Jucobus, 109 depositions ile bene esse under section 863, or in perU. S. 275; Potter v. Bank, 102 id. 163; Page v.

petuam rei memoriam aud under a dedimus potestatum Burnstine, id. 664; King v. Worthington, 104 id. 41.

under section 866. Coming to consider whether Congress has enacted

In the first of these, the circumstances which auany laws bearing on the question before us, we find the

thorize depositions to be taken in advance for use on following sections of the Revised Statutes, in chapter XVII, on evidence, which wo hero quote together:

the trial are mentioned with great particularity. They

all have relation to some conditions of the witness; to “Section 861. The mode of proof, in the trial of ac

residence more tban a hundred miles from the court, tions at common law, shall be by oral testimony and examination of witnesses in open court, except as

or bound on a sea voyage, or as going out of the United

States or out of the district, or more than a hundred hereinafter provided.”

milos from the place of trial before the time of trial, “Section 863. The testimony of any witness may be

or an ancient or infirm witness. taken in any civil cause, pending in a District or (ircuit Court, by deposition de bene esse, when the wit

None of these things are suggested in regard to petiness lives at a greater distance from the place of trial tioner, nor were they thought of as a foundation of than one hundred milos, or is bound on a voyage to

the order of the State court or of the Circuit Court. bea, or is about to go out of the United States, or out

The statuto of New York, under which both courts of the district in which the case is to be tried, and to

actej, makes no such requirements as a condition to a greater distance than one hundred miles from the

the examination of the party. It is a right which, if place of trial, before tho time of trial, or when he is

the judge may possibly refuse to grant, he is in that ancient or infirm." The remainder of this section,

matter govorned by none of the conditions on which and sections 861 and 865, are directory as to the oflicer

the deposition may be taken under the act of Conbefore whom the deposition may be taken, the notice gress. to the opposite party, and the manner of taking, testi Nor does the case come within the principle or profying and returning the deposition to the court. foss to be grounded on the power conferred by section

“Section 866. In any case where it is necessary, in 866, which is another exception to the rule established order to provent a failure or delay of justice, any of by section 861. It is not according to common usage the courts of the United States may grant a dedimus to call a party in advance of the trial at law, and subpotestatum to take depositions according to common ject him to all the skill of opposing counsel to extract usage; and any Circuit ('ourt, upon application to it something which he may then use or not, as it suits

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