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other on contract;' when several actions are brought between the same parties upon different notes with the same makers, payees, and indorsers; 10 and where several actions at common law are based upon insurance policies on the same life " or the same property, and the defenses are the same. A consolidation was refused when several actions were pending between the same parties upon assigned claims for overcharges.13 The consolidation of two suits will not prevent the subsequent remand of one of them which has been improperly removed ; 14 nor the right to dismiss either of them.15 It has been said that a consolidation is primarily but an expedient adopted for saving costs and delay. Each record is that of an independent suit, except in so far as the evidence in one is, by order of the court, treated as evidence in both. The consolidation does “not change the rules of equity pleading, nor the rights of the parties, as those rights must still turn on the pleadings, proofs, and proceedings in their respective suits. The parties in one suit do not thereby become parties in the other, and a decree in one is not a decree in the other unless so directed. It operates as a mere carrying on together of two separate suits supposed to involve identical issues, and is intended to expedite the hearing and diminish the expense.” 16
$ 372. Evidence, testimony, depositions and inspection.The Revised Statutes provide that, except in cases whero depositions are authorized to be taken and used,“ the mode of proof in the trial of actions at common law shall be by oral testi
proceedings in the other causes be 10 Davis v. St. Louis & S. F. Ry. Co., stayed. 25 Fed. R. 786.
13 Davis v. St. Louis & S. F. Ry. 11 Mutual L. I. Co. v. Hillmon, 145 Co., 25 Fed. R. 786. U. S. 285. In this case it was held that 14 Colburn v. Hill (C. C. A.), 101 each defendant was entitled to three Fed. R. 500. separate peremptory challenges. 15 Young v. Grand Trunk Ry, Co.,
12 Falls of Neuse Mfg. Co. v. Ga. 9 Fed. R. 348. Home I. Co., 26 Fed. R. 1. In that 16 Toledo, St. L. & K. C. R. Co. v. case, where the policies contained a Continental Tr. Co. (C. C. A.), 95 clause for contribution, the court Fed. R. 497, 506, per Lawton, J., citordered: that one of the causes be ing Brevard v. Summar, 2 Heisk. transferred to the equity docket, and (Tenn.) 97, 103; Lofland v. Coward, the other defendants be made par- 12 Heisk. (Tenn.) 546. But see Rossties thereto; that the pleadings in Meehan B. S. F. Co. v. So. M. Iron that case be reformed according to Co., 72 Fed. R. 957. the equity practice; and that the
mony, and the examination of witnesses in open court."1 The trial judge may allow a witness to give testimony in a narrative form; and if such a witness states irrelevant or incompetent matter it is the duty of the injured party to arrest the narrative and move to have the irrelevant matter stricken out.” State statutes regulating the competency of proof, such as the statute of Georgia making an assignment or indorsement of a promissory note sufficient evidence of its transfer without proof of the handwriting of the indorser or assignor;: the statute of Mississippi authorizing the admission in evidence of a notarial certificate;' and the statutes of Minnesota and New York regulating the manner of proving a foreign law, will be followed in actions at common law in the Federal courts held in such States;' unless they conflict with the Federal statute providing that “in the courts of the United States no witness shall be excluded in any action on account of color, or in any civil action because he is a party to or interested in the issue tried; provided, that in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other, or to any transaction with or statement by the testator, intestate, or ward, unless called to testify by the opposite party, or required to testify thereto by the court.” 6 A State statute excluding the testimony of a physician as to information acquired while attending a patient in a professional capacity will be followed in an action at common law in a Federal court held in such State;? but the Federal courts will not follow a State
$ 372. 1 U. S. R. S., & 867. See Ex “whether the defective work and parte Fiske, 113 U. S. 713; Beardsley condition of the mill was owing to v. Littell, 14 Blatchf. 102.
defective construction or want of 2 N. Pac. R. Co. v. Charles (C. C. A.), skill or management on the part of 51 Fed. R. 562, 571. In the absence defendants.” Chandler v. Thompof a statute, as a general rule, the son, 30 Fed. R. 38, 41. genuineness of handwriting cannot 3 M'Niel v. Holbrook, 12 Pet. 84, 88. be determined by comparing it with 4 Sims v. Hundley, 6 How. 1. any other handwriting of the party 5 Pierce v. Indreth, 106 U. S. 546; except other papers admitted to be in Calderon v. O'Donohue, U. 8. C. C., his handwriting, which are in evi- S. D. N. Y., per Wheeler, D. J., Juno, dence for some other purpose. Hick- 1891. ory v. U. S., 151 U. S. 303. See Moore 6 U. S. R. S., S 858. See authorities v. U. S., 91 U. 8. 271; Rogers v. Ritter, cited supra, $ 274. 12 Wall. 317. It has been held that 7 Conn. Mut. Ins. Co. v. Union Tr. an expert may properly be asked, Co., 112 U. S. 250.
statute allowing confidential communications between attorney and client to be put in evidence.8
The power of the Circuit and District Courts to make rules regulating the taking of testimony in actions at common law, has been denied.
The act of March 9, 1882, provides that in addition to the mode of taking the depositions of witnesses in causes pending at law or equity in the District and Circuit Courts of the United States, it shall be lawful to take the depositions or testimony of witnesses in the mode prescribed by the laws of the State in which the courts are held.” 10 Before this statute it was held that no form of examination or deposition unknown to the common law and not authorized by a Federal statute, even though as the examination of a party before trial," or the filing of interrogatories with a complaint 12% authorized by a statute of the State where the court is held,13 would be followed by a Federal court in either an action at common law or a suit in equity;" and that an order of a State court directing such an examination was avoided by the removal of the case. 15 In the Second Circuit it was held that an order could be granted for the examination of a party to an action at common law, in accordance with the State statute, to enable the opposite party to frame his pleading 16 In the Eighth Circuit it was held that the defendant could not be compelled to answer interrogatories attached to the plaintiff's common-law petition in accordance with the State practice. In the absence of a statute, a court of the United States has no power to order a plaintiff in an action for personal injuries to submit to a physical examination in
8 Conn. Mut. Ins. Co. v. Schaefer, 94 12 Tabor v. Indianapolis Journal U. S. 457; Liggett v. Glenn, 51 Fed. Newspaper Co., 66 Fed. R. 423. R. 381, 394; supra, S 274.
13 U. S. v. Fifty Boxes and Packages 9 Randall v. Venable, 17 Fed. R. of Lace, 92 Fed. R. 601. 163; Flint v. Board of Com’rs, 5 Dill. 14 Ex parte Fisk, 113 U. S. 713. See 481; McLennon v. Kansas City, St. J. supra, SS 283, 286, 289. & C. B. R. Co., 22 Fed. R. 198. Contra, 15 Ex parte Fisk, 113 U. S. 713. Warren v. Younger, 18 Fed. R. 859. 16 Anderson v. Mackay, 46 Fed. R.
10 27 St. at L 7. See supra, SS 283, 105. But see Marvin v. C. Aultman 286, 289.
& Co., 46 Fed. R. 338. 11 Ex parte Fisk, 113 U. S. 713. But 17 Pierce v. Union Pac. Ry. Co., 47 see Bryant v. Leyland, 6 Fed. R. 125; Fed. R. 709. Lowrey v. Kusworm, 66 Fed. R. 539.
advance of the trial,18 but a State statute authorizing such an examination is constitutional and will be followed.19
It was formerly held, in the Southern District of New York, that inspection of a document before trial at common law could only be obtained by a bill of discovery, not by an order, in accordance with the State practice. It has been held that the State practice should now be followed.21 The Revised Statutes provide that on the trial of an action 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 an 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.” It has been held at circuit that this practice will be followed in equity. The pendency of a bill of discovery is not a bar to such a motion in an action at law.25 The order will not be granted unless the applicant shows that the paper exists and is pertinent to the issue, and in the possession of the other party; 24 and he must show the grounds of his belief upon the subject. The order may be absolute or con
18 Union Pac. Ry. Co. v. Botsford, the production of accounts of sales 141 U. S. 250.
in an action to recover royalties. 19 Camden & 8. Ry. Co. v. Stetson, Kirkpatrick v. Pope Mfg. Co., 61 Fed. 177 U. S. 172. Cf. Montana Co. v. R. 46. St. Louis M. & M. Co., 152 U. S. 160; 23 U. S. R. S., S724. Lyon v. Manhattan Ry. Co., 142 N. Y. 24 Coit v. North Carolina G. Amal. 298; McGovern v. Hope, 63 N. J. Law, Co., 9 Fed. R. 577; Ryder v. Bateman, 76, 42 Atl. R. 830.
93 Fed. R. 31. But see Guyot v. Hil20 Guyot v. Hilton, 32 Fed. R. 743; ton, 32 Fed. R. 743; Colgate v. ComColgate v. Compagnie Française, 23 pagnie Française, 23 Fed. R. 82; Fed. R. 82. But see Coit v. North Bischoffsheim v. Brown, 29 Fed. R. Carolina G. Amal. Co., 9 Fed. R. 577. 341. See supra, S 267.
2 Victor G. Bloede Co. v. Joseph 25 lasigi v. Brown, 1 Curt. 401. Bancroft & Sons Co., 98 Fed. R. 175; 26 Ibid.; Triplett v. Bank of WashFilscole v. Lancaster, 70 Fed. R. 337. ington, 3 Cranch, C. C. 646; Jacques Contra, Lucker v. Phønix Assur. Co., v. Collins, 2 Blatchf. 23; Buell v. 67 Fed. R. 18.
Conn. Mut. L. Ins. Co., 1 Cin. L. B. U. S. R. S., & 724. See supra, 51; Bas v. Steele, 3 Wash. 381. $ 267. The court may thus compel 27 Caspary v. Carter, 84 Fed. R. 416.
ditional.28 A motion made at the trial is too late.29 If the notice was not served a sufficient length of time before the trial, the trial may be postponed.30 It has been held that under this statute the court may order inspection before the trial with permission to take a copy.31 It has been said that the order should not be made against a corporation, the proper remedy in such a case being a subpæna duces tecum served on one of its officers. It has been said to be very doubtful whether the court has the power to compel a party to permit the inspection of articles, other than books, writings, or drawings, in bis possession; although if such articles are produced on the trial the court may then permit the application of chemical tests to them; 33 but it has been held that inspection of a mine may be ordered in a proceeding against a receiver. It seems that a party cannot be compelled by a subpæna duces tecum to produce such articles upon the trial.35 When a party inspects a paper produced by his adversary at his request and then fails to offer it in evidence, his adversary may put it in evidence. 36 When, before the submission of a case to the jury, irrelevant evidence,
28 Dunham v. Riley, 4 Wash. 126; seeking them. Jacques v. Collins, 2 Iasigi v. Brown, 1 Curt. 401; Mer. Blatchf. 23. chants' Nat. Bank v. State Nat. Bank, 32 Merchants' Nat. Bank v. State 3 Cliff. 201.
Nat. Bank, 3 Cliff. 201. Contra, Kirk29 Sampson v. Johnson, 2 Cranch, patrick v. Pope Mfg. Co., 61 Fed. R. C. C. 107; Bank of U. S. v. Kurtz, 2 46; Exchange Nat. Bank v. Wichita Cranch, C. C. 342.
Cattle Co., 61 Fed. R. 190. It has 30 Geyger v. Geyger, 2 Dall. 332; been held that a stockholder has Bank of U. S. v. Kurtz, 2 Cranch, C. the right to inspect the corporate C. 342.
bonds in the hands of a receiver in Exchange Nat. Bank v. Wichita order to obtain material to approve a Cattle Co., 61 Fed. R. 190; Central scheme of reorganization; provided Nat. Bank v. Tayloe, 2 Cranch, C. C. that he acquired his stock before the 427; Jacques v. Collins, 2 Blatchf. receivership. Chable v. Nicaragua 23; Gregory v. Chicago, M. & St. P. Canal Const. Co., 59 Fed. R. 846. R. Co., 10 Fed. R. 529; Lucker v. 33 Lundberg v. Albany & R. I. & S. Phønix Assur. Co., 67 Fed. R. 18; Co., 32 Fed. R. 501; Johnson S. S. R Victor G. Bloede Co. v. Joseph Ban- Co. v. N. B. S. Co., 48 Fed. R. 191, 194, croft & Sons, 98 Fed. R. 175. Contra, 195. Merchants' Nat. Bank v. State Nat. 34 Henszey v. Langdon-Henszey C. Bank, 3 Cliff. 201; Iasigi v. Brown, 1 Min. Co., 80 Fed. R. 178. Curt. 401; Triplett v. Bank, 3 Cranch, 35 In re Shephard, 3 Fed. R. 12; C. C. 646. It has been held that the Johnson S. S. R. Co. v. N. B. S. Co., order may require that the docu- 48 Fed. R. 191, 194, 195. See supra, ments be filed with the clerk, or that S$ 275, 277. copies of them be served on the party 36 Edison El, L. Co. v. U. S. El. L
Co., 45 Fed. R. 55.