of mouth under oath at the hearing, when their existence and execution was not denied by the answer. Telegrams do not prove themselves, and are ordinarily inadmissible without evidence that they were sent by the persons whose names are signed to the copies delivered. According to the old English practice, the adverse party had no right, in the absence of special circumstances, to compel before the hearing the production of any exhibit, however it had been proved, except, perhaps, when the deposition proving it had set it out verbatim; nor even to inspect it, it being considered that a party should not before the hearing see the strength of the cause, or any deed, to pick holes in it. The practice in the Federal courts is otherwise. There, both in equity and at common law, either party may upon motion supported by affidavit, which affidavit may be controverted, compel the other party to produce for his inspection on the trial or hearing any books or other documents material to the issues, which are in his opponent's possession or under his opponent's control. It has been held that such an order will not be granted when the production of the papers can be compelled by a subpoena duces tecum which has been served. When a party inspects a document which he has compelled his adversary to produce under a subpoena duces tecum, and then fails to offer it in evidence, his adversary may put it in evidence. A party may be compelled to produce an application for a patent which has not been issued and correspondence with the Patent Office upon the subject, although he claims that the result will be to disclose confidential communications

3 Wood v. Mann, 2 Sumn. 316; Nesmith v. Calvert, 1 W. & M. 34; Atty. Gen. v. Pearson, 7 Sim. 290, 303.

4 Drexel v. True (C. C. A.), 74 Fed. R. 12. See Dunbar v. U. S., 156 U. S. 185; s. C., 60 Fed. R. 75. A subpoena duces tecum, directed to the superintendent of a telegraph company, to produce telegrams between a number of parties, was held to be sufficient, although it did not describe the messages by date, or identify the particular ones required. In re Starror, 63 Fed. R. 564.

5 Davers v. Davers, 2 P. Wms. 410.

For the English practice of admitting exhibits upon the hearing, see Wood v. Strickland, 2 Mer. 461.

6 Coit v. N. C. Gold Am. Co., 9 Fed. R. 577. Cf. U. S. R. S., § 724; Kirkpatrick v. Pope Mfg. Co., 61 Fed. R. 46, and infra, § 372. But see Guyot v. Hilton, 32 Fed. R. 743; Colgate v. Compagnie Francaise, 23 Fed. R. 82; Ryder v. Bateman, 93 Fed. R. 31.

7 Edison El. L. Co. v. U. S. EL. L. Co., 44 Fed. R. 294, 300.

8 Edison El. L. Co. v. U. S. El. L. Co., 45 Fed. R. 55. But see Treadwell v. Lennig, 50 Fed. R. 872.

with his attorneys. When a party had filed an exhibit drawn in pencil, a motion requiring him to refile it drawn in ink was denied.10 A party is not entitled to a general inspection of books and papers in his adversary's possession. In the case of an inspection of books, the usual practice is to have all except the pages containing the material matter sealed up, and to have the inspection take place under the supervision of a master or commissioner." In an action to recover a penalty, whether brought by a private individual or by the United States, and in a proceeding to enforce a forfeiture of property, the defendant or owner of the property seized cannot be compelled to produce his books or papers or other articles of personal property for the inspection of the opposite party, and should such an inspection be compelled, the judgment may be reversed upon that ground alone.12 It has been held that, under a subpoena duces tecum, a witness cannot be compelled to produce patterns of the casting of a stove, or anything except books and papers;13 that the production of drawings but not of models may be thus compelled; 14 and that inspection of a mine may be allowed in a proceeding to remove a receiver. It has been held that an attorney cannot be compelled by a subpoena duces tecum to produce a document upon which he has a lien; 16 that a Federal collector of internal revenue cannot be thus compelled to produce in a State court official papers which a regulation of the Treasury Department forbids him to show to any one;"7 and that an officer or agent of a private corporation that is not

9 Ibid.; and s. C., 44 Fed. R. 294. But see Rule 15 of Patent Office; U.S. R. S., § 4902.

15

statute empowering the courts to compel the inspection and survey of a mine is constitutional. Montana

10 Tubman v. Wason Mfg. Co., 44 Co. v. St. Louis Min. & Mfg. Co., 152 Fed. R. 429. U. S. 160. Cf. infra, § 372.

11 Robbins v. Denis, 1 Blatchf. 238, 243.

12 Johnson v. Donaldson, 18 Blatchf. 287; Boyd v. U. S., 116 U. S. 616. See U. S. v. Denicke, 35 Fed. R. 407, 410. 13 In re Sheppard, 3 Fed. R. 12.

14 Johnson Steel S. R. Co. v. N. B. S. Co., 48 Fed. R. 191; Diamond Match Co. v. Oshkosh M. Works, 63 Fed. R. 984.

15 Henszey v. Langdon-Henszey

Coal Min. Co., 80 Fed. R. 778. A State

16 Davis v. Davis, 90 Fed. R. 791. 17 Boske v. Comengore, 177 U. S. 459. When a party needs to use in a State court papers on file in the clerk's office of a Federal court, the safer practice is to apply to the Federal court for permission to serve a subpoena duces tecum upon its clerk. Harkrader v. Wadley, 172 U. S. 148, 153; s. c. as Wadley v. Blount, 65 Fed. R. 667.

a party to a suit cannot be compelled to bring into court the books of the corporation and to open them for examination there.18 The English rule was that in a suit against the heirat-law to establish the validity of a will, all the witnesses to the will who are alive, sane, and within the jurisdiction of the court, must be examined; 19 and the testator's sanity must be proved affirmatively.20 This rule does not, however, apply to suits to establish the trusts of a will, or to appoint a new trustee, or in any other case when the validity of the will is not directly in issue. It has been said that a party who has fraudulently altered documents which he offers in evidence is thereby debarred from all relief in equity."2

§ 268. Federal statutes regulating admission of documentary evidence.-The Revised Statutes of the United States provide as follows concerning the admission of documentary evidence: "Copies of any books, records, papers, or documents in any of the Executive Departments, authenticated under the seals of such Departments, respectively, shall be admitted in evidence equally with the originals thereof." The mode of authentication prescribed by the statute must be strictly followed. The words, "papers or documents," mean only such as are made by an officer and an agent of the government in

18 Southern Ry. Co. v. North Carolina Corp. Com'rs, 104 Fed. R. 700. Contra, Wertheim v. Continental Ry. & Tr. Co., 15 Fed. R. 716; U. S. v. Babcock, Fed. Cas. No. 14,484. Cf. Russell v. McLennan, Fed. Cas. No. 12,158; In re Hirsch, 74 Fed. R. 928; McMullen v. Ritchie, 57 Fed. R. 104. As to the right of a stockholder to inspect the books of the corporation, see Ranger v. Champion C. P. Co., 51 Fed. R. 61.

It has been held that entries in the books of a corporation showing a transfer of stock to a person and payment by him of instalments of the subscription thereto are not prima facie evidence that he is a stockholder. Carey v. Williams (C. C. A.), 79 Fed. R. 906. But see Turnbull v. Payson, 95 U. S. 418; Liggett v. Glenn (C. C. A.), 51 Fed. R. 381.

19 Bootle v. Blundell, 19 Ves. 4946,

505.

20 Harris v. Ingledew, 3 P. Wms. 91; Wallis v. Hodgeson, 2 Atk. 56.

21 Bootle v. Blundell, 19 Ves. 4946, 505; Concannon v. Cruise, 2 Molloy, 332.

22 Harton v. McKee, 73 Fed. R. 556. § 268. U. S. R. S., § 882. See Barney v. Schneider, 9 Wall. 248; Chadwick v. U. S., 3 Fed. R. 750; Block v. U. S., 7 Ct. Cl. 406; U. S. v. Liddle, 2 Wash. 205; U. S. v. Benner, 1 Bald. 234; White v. St. Guirons, Minor (Ala.), 331; Catlett v. Pac. Ins. Co., 1

Paine, 594; Bleecker v. Bond, 3 Wash. 529; Thompson v. Smith, 2 Bond, 320; Wetmore v. U. S., 10 Pet. 647; Wickliffe v. Hill, 3 Litt. (Ky.) 330.

2 Smith v. U. S., 5 Pet. 291, 300; Block v. U. S., 7 Ct. Cl. 406; Bleecker

the discharge of his official duty; and copies of such are not competent evidence unless it was the duty of the officer to file the originals. In cases described in section 886 of the Revised Statutes, proof must be given in accordance with the provisions of that section. The original papers may also be put in evidence." In cases where the government is a party, duly authenticated copies should be procured and the fees therefor paid, and a mere notice to produce the original is not sufficient. Papers which were a part of the archives of the late so-called "Confederate Government" must be proved by proper testimony. The certificate of the Secretary of the

Spanish Governor of Florida is prima facie evidence of the existence of a grant of land. "The volume of public documents, printed by authority of the Senate of the United States, containing letters to and from various officers of state, communicated by the President of the United States to the Senate, is as competent evidence as the original documents themselves." "Copies of any documents, records, books, or papers in the office of the Solicitor of the Treasury, certified by him under the seal of his office, or, when his office is vacant, by the officer acting as Solicitor for the time, shall be evidence equally with the originals.” 10 "Every certificate, assignment, and conveyance executed by the Comptroller of the Currency, in pursuance of law, and sealed with his seal of office, shall be received in evidence in all places and courts; and all copies of papers in his office certified by him and authenticated by the said seal, shall in all cases be evidence equally with the originals. An impression of such seal directly on the paper shall be as valid as if made on wax or wafer."""Copies of the organization certificate of any national banking association, duly certified by the Comptroller of the Currency, and authenticated by his seal of office, shall be evidence in all courts and places within the jurisdiction of the United States of the existence of the association, and of every matter which could be proved by the production of the original certificate." 12

"When suit is brought in any case of delinquency of a revenue officer, or other person accountable for public money, a transcript from the books and proceedings of the Treasury Department certified by the" Secretary and Assistant Secretary "and authenticated under the seal of the Department, or, when the suit involves the accounts of the War or Navy Departments, certified by the" Secretary or an Assistant Secretary of the Treasury, "and authenticated under the seal of the Treasury Department, shall be admitted as evidence, and the court try

8 U. S. v. Wiggins, 14 Pet. 334; U. S. Co. Nat. Bank v. Lee, 112 Mass. 521; v. Acosta, 1 How. 24.

9 Whiton v. Albany Ins. Co., 109 Mass. 30. Cf. Doe v. Roe, 13 Fla. 602. 10 U. S. R. S., § 883. 11 U. S. R. S., § 884.

12 U. S. R. S., § 885; First Nat. Bank v. Kidd, 20 Minn. 234; Washington

Merchants' Nat. Bank v. Glendon Co., 120 Mass. 97. A certificate is sufficient in the absence of any evidence that there is any other national bank of the same name at the same place. Washington Co. Nat. Bank v. Lee, 112 Mass. 521.