1

9

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,12 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; " 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 where 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

9 Ibid.

proceedings in the other causes be

10 Davis v. St. Louis & S. F. Ry. Co., stayed. 25 Fed. R. 786.

11 Mutual L. I. Co. v. Hillmon, 145 U. S. 285. In this case it was held that each defendant was entitled to three separate peremptory challenges.

12 Falls of Neuse Mfg. Co. v. Ga. Home I. Co., 26 Fed. R. 1. In that case, where the policies contained a clause for contribution, the court ordered: that one of the causes be transferred to the equity docket, and the other defendants be made parties thereto; that the pleadings in that case be reformed according to the equity practice; and that the

13 Davis v. St. Louis & S. F. Ry. Co., 25 Fed. R. 786.

14 Colburn v. Hill (C. C. A.), 101 Fed. R. 500.

15 Young v. Grand Trunk Ry. Co., 9 Fed. R. 348.

16 Toledo, St. L. & K. C. R. Co. v. Continental Tr. Co. (C. C. A.), 95 Fed. R. 497, 506, per Lawton, J., citing Brevard v. Summar, 2 Heisk. (Tenn.) 97, 105; Lofland v. Coward, 12 Heisk. (Tenn.) 546. But see RossMeehan B. S. F. Co. v. So. M. Iron Co., 72 Fed. R. 957.

4

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.2 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." 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. 1U. S. R. S., § 867. See Ex parte Fiske, 113 U. S. 713; Beardsley v. Littell, 14 Blatchf. 102.

2 N. Pac. R. Co. v. Charles (C. C. A.), 51 Fed. R. 562, 571. In the absence of a statute, as a general rule, the genuineness of handwriting cannot be determined by comparing it with any other handwriting of the party except other papers admitted to be in his handwriting, which are in evidence for some other purpose. Hickory v. U. S., 151 U. S. 303. See Moore v. U. S., 91 U. S. 271; Rogers v. Ritter, 12 Wall. 317. It has been held that an expert may properly be asked,

"whether the defective work and condition of the mill was owing to defective construction or want of skill or management on the part of defendants." Chandler v. Thomp son, 30 Fed. R. 38, 41.

M'Niel v. Holbrook, 12 Pet. 84, 88. 4 Sims v. Hundley, 6 How. 1.

5 Pierce v. Indreth, 106 U. S. 546; Calderon v. O'Donohue, U. S. C. C., S. D. N. Y., per Wheeler, D. J., June, 1891.

6 U. S. R. S., § 858. See authorities cited supra, § 274.

7 Conn. Mut. Ins. Co. v. Union Tr. Co., 112 U. S. 250.

statute allowing confidential communications between attorney and client to be put in evidence.

The power of the Circuit and District Courts to make rules regulating the taking of testimony in actions at common law, has been denied.9

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

14

8 Conn. Mut. Ins. Co. v. Schaefer, 94 U. S. 457; Liggett v. Glenn, 51 Fed. R. 381, 394; supra, § 274.

9 Randall v. Venable, 17 Fed. R. 163; Flint v. Board of Com'rs, 5 Dill. 481; McLennon v. Kansas City, St. J. & C. B. R. Co., 22 Fed. R. 198. Contra, Warren v. Younger, 18 Fed. R. 859. 10 27 St. at L. 7. See supra, §§ 283, 286, 289.

11 Ex parte Fisk, 113 U. S. 713. But see Bryant v. Leyland, 6 Fed. R. 125; Lowrey v. Kusworm, 66 Fed. R. 539.

12 Tabor v. Indianapolis Journal Newspaper Co., 66 Fed. R. 423.

13 U. S. v. Fifty Boxes and Packages of Lace, 92 Fed. R. 601.

14 Ex parte Fisk, 113 U. S. 713. See supra, §§ 283, 286, 289.

15 Ex parte Fisk, 113 U. S. 713.

16 Anderson v. Mackay, 46 Fed. R. 105. But see Marvin v. C. Aultman & Co., 46 Fed. R. 338.

17 Pierce v. Union Pac. Ry. Co., 47 Fed. R. 709.

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.20 It has been held that the State practice should now be followed." 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; 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. Kirkpatrick v. Pope Mfg. Co., 61 Fed. R. 46.

19 Camden & S. Ry. Co. v. Stetson, 177 U. S. 172. Cf. Montana Co. v. St. Louis M. & M. Co., 152 U. S. 160; Lyon v. Manhattan Ry. Co., 142 N. Y. 298; McGovern v. Hope, 63 N. J. Law, 76, 42 Atl. R. 830.

20 Guyot v. Hilton, 32 Fed. R. 743; Colgate v. Compagnie Française, 23 Fed. R. 82. But see Coit v. North Carolina G. Amal. Co., 9 Fed. R. 577.

21 Victor G. Bloede Co. v. Joseph Bancroft & Sons Co., 98 Fed. R. 175; Filscole v. Lancaster, 70 Fed. R. 337. Contra, Lucker v. Phoenix Assur. Co., 67 Fed. R. 18.

22 U. S. R. S., § 724. See supra, 267. The court may thus compel

23 U. S. R. S., § 724.

24 Coit v. North Carolina G. Amal. Co., 9 Fed. R. 577; Ryder v. Bateman, 93 Fed. R. 31. But see Guyot v. Hilton, 32 Fed. R. 743; Colgate v. Compagnie Française, 23 Fed. R. 82; Bischoffsheim v. Brown, 29 Fed. R. 341. See supra, § 267.

25 Iasigi v. Brown, 1 Curt. 401.

26 Ibid.; Triplett v. Bank of Washington, 3 Cranch, C. C. 646; Jacques v. Collins, 2 Blatchf. 23; Buell v. Conn. Mut. L. Ins. Co., 1 Cin. L. B. 51; Bas v. Steele, Wash. 381.

27 Caspary v. Carter, 84 Fed. R. 416.

32

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." It has been said that the order should not be made against a corporation, the proper remedy in such a case being a subpoena 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 his possession; although if such articles are produced on the trial the court may then permit the application of chemical tests to them; 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 subpœna duces tecum to produce such articles upon the trial. 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,

35

28 Dunham v. Riley, 4 Wash. 126; Iasigi v. Brown, 1 Curt. 401; Merchants' Nat. Bank v. State Nat. Bank, 3 Cliff. 201.

29 Sampson v. Johnson, 2 Cranch, C. C. 107; Bank of U. S. v. Kurtz, 2 Cranch, C. C. 342.

30 Geyger v. Geyger, 2 Dall. 332; Bank of U. S. v. Kurtz, 2 Cranch, C. C. 342.

31 Exchange Nat. Bank v. Wichita Cattle Co., 61 Fed. R. 190; Central Nat. Bank v. Tayloe, 2 Cranch, C. C. 427; Jacques v. Collins, 2 Blatchf. 23; Gregory v. Chicago, M. & St. P. R. Co., 10 Fed. R. 529; Lucker v. Phoenix Assur. Co., 67 Fed. R. 18; Victor G. Bloede Co. v. Joseph Bancroft & Sons, 98 Fed. R. 175. Contra, Merchants' Nat. Bank v. State Nat. Bank, 3 Cliff. 201; Iasigi v. Brown, 1 Curt. 401; Triplett v. Bank, 3 Cranch, C. C. 646. It has been held that the order may require that the documents be filed with the clerk, or that copies of them be served on the party

seeking them. Jacques v. Collins, 2 Blatchf. 23.

32 Merchants' Nat. Bank v. State Nat. Bank, 3 Cliff. 201. Contra, Kirkpatrick v. Pope Mfg. Co., 61 Fed. R. 46; Exchange Nat. Bank v. Wichita Cattle Co., 61 Fed. R. 190. It has been held that a stockholder has the right to inspect the corporate bonds in the hands of a receiver in order to obtain material to approve a scheme of reorganization; provided that he acquired his stock before the receivership. Chable v. Nicaragua Canal Const. Co., 59 Fed. R. 846.

33 Lundberg v. Albany & R. I. & S. Co., 32 Fed. R. 501; Johnson S. S. R Co. v. N. B. S. Co., 48 Fed. R. 191, 194, 195.

34 Henszey v. Langdon-Henszey C. Min. Co., 80 Fed. R. 178.

35 In re Shephard, 3 Fed. R. 12; Johnson S. S. R. Co. v. N. B. S. Co., 48 Fed. R. 191, 194, 195. See supra, §§ 275, 277.

36 Edison El. L. Co. v. U. S. El. L Co., 45 Fed. R. 55.