The courts of the United States have no power to compel the attendance of persons to an examination in a foreign country. Such testimony, therefore, can only be taken against the will of a witness by the aid of, and by means of, the remedies administered by a foreign court."

1

§ 277. Compelling a witness to testify.- When a witness, who has been properly served with a subpoena, refuses to attend, or when upon his examination he refuses to answer a relevant and proper question, against answering which he is not protected by his privilege, by the old rules he was liable "to be proceeded against in three ways: first, by attachment for contempt of the process of the court; secondly, by a special action on the case for damages at common law; and thirdly, by action on the statute 5 Eliz., c. 9, § 12, for the further recompense given by that statute, if it has been previously assessed by the court out of which the process issued." In the Federal courts, a witness, if contumacious, may be punished for contempt, and is also probably liable to an action for the damages sustained by his refusal. Upon an application to punish a witness for refusing to answer a question, the power of the officer before whom he is examined and the materiality of the question may both be considered. Such an application must be made to the court which issued the subpoena. Upon an application to punish a witness for contempt for failure to produce a paper in obedience to a subpoena duces tecum, it has been said that the materiality of the paper required will not be determined unless it is produced; and if there is color for the claim that the paper is material, its production will be compelled, and the decision as to the admission of the paper in evidence postponed to the final hearing. The rules concerning the privileges of witnesses and the materiality and rele

same penalties as would be incurred for a like offense on the trial of a suit."

U. S. R. S., § 874. "Every witness appearing and testifying under the said provisions relating to the District of Columbia shall be entitled to receive for each day's attendance, from the party at whose instance he is summoned, the fees now provided by law for each day he shall give attendance."

5

11 Infra, § 290.

§ 277. Tidd's Pr. 738.

2 U. S. R. S., § 725.

Ex parte Peck, 3 Blatchf. 113; Ex parte Judson, 3 Blatchf. 89. 4 In re Allis, 44 Fed. R. 216.

5 Edison El. L. Co. v. U. S. El. L. Co., 44 Fed. R. 294.

6 Edison El. L. Co. v. U. S. El. L. Co., 45 Fed. R. 55, 59.

vancy of evidence are substantially the same in equity as atlaw. Care will be taken not to compel a witness to needlessly disclose his business secrets and private papers. Orders punishing for contempt witnesses who, in order to raise jurisdictional questions, have refused to be sworn or to answer certain questions, have been stayed their review by the Circuit Courts of Appeal.10

§ 278. Testimony taken in equity which may be used in other courts.- Testimony may be taken in a court of equity for use in other courts, as well as for its own use, by bills to perpetuate testimony1 and bills to take testimony de bene esse;2 and formerly, at least, testimony could be taken in a court of equity for use in another court by a bill of discovery.3

§ 279. Bills to perpetuate testimony.-"In any case where it is necessary in order to prevent a failure or delay of justice, any of the courts of the United States may grant a dedimus potestatem to take depositions according to common usage; and 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." In order to obtain such a direction, the party wishing the testimony taken should file a bill to perpetuate testimony. A bill to perpetuate testimony must contain all the facts necessary to give the court jurisdiction. It must state with reasonable certainty the subject-matter touching which the plaintiff is desirous of taking testimony, and show that it is a matter which may be cognizable in a court of the United States. It should also show that

1

7 Stevens v. Cooper, 1 J. Ch. (N. Y.) 425.

mony may thus be taken before a Circuit Court while a case is pending

8 Robinson v. Phila. etc. R. Co., 28 in the Supreme Court or Circuit Fed. R. 340, 342.

9 Henry v. Travelers' Ins. Co., 35 Fed. R. 15. But see Lloyd v. Pennie, 50 Fed. R. 4, 11.

10 In re Spofford, 62 Fed. R. 443; Butler v. Fayerweather (C. C. A.), 91 Fed. R. 458.

§ 278. 1 § 279.

2 § 280.

3281.

$279. U. S. R. S., § 866. Testi

Court of Appeals on appeal from a decree sustaining a demurrer. Richter v. Union T. Co., 115 U. S. 55.

2 N. Y. & B. C. P. Co. v. N. Y. C. P. Co., 9 Fed. R. 578.

3 Story's Eq. Pl., §§ 300, 305.

4 U. S. R. S., § 868; N. Y. & B. C. P. Co. v. N. Y. C. P. Co., 9 Fed. R. 578. But see Morris v. Morris, 2 Phill. 205, 208.

7

the plaintiff has some interest in the subject-matter, which may be endangered if the testimony in support of it is lost. A mere expectancy, however strong and well-founded, is not sufficient. It has been said, "Put the case as high as possible; that the party seeking to perpetuate the testimony is the next of kin of a lunatic; that the lunatic is intestate; that he is in the most helpless state, a moral and physical impossibility (though the law would not so regard it) that he should ever recover; even if he were in articulo mortis, and the bill was filed at that instant; still, the plaintiff could not qualify himself to maintain it, as having any interest in the subject of the suit." If, moreover, the interest be such a one as may be immediately barred by the party against whom the bill is brought, it has been said that the court will withhold its assistance, for it would be a fruitless exercise of power. Such a bill must also show that the defendant has, or claims to have, a title or interest in opposition to that of the plaintiff in the subject-matter of the proposed testimony, as, for example, that the defendant claims an exclusive right to the use of a process which the plaintiff is using, and rests his claim upon letters-patent which the proposed testimony will show to be invalid; and some ground of necessity for perpetuating the evidence, as that the facts to which the testimony of the witnesses proposed to be examined relate, cannot be immediately investigated in a court of law or equity, or, if they can be immediately investigated, that the right to commence such a suit or action belongs exclusively to the defendant; or that the defendant has interposed some impediment, such as an injunction, to an immediate trial of the matter in a court of law; or that, before the investigation can take place, the evidence of a material witness is likely to be lost by his threatened death, illness, or departure from the jurisdiction of the court; but the fact that, in the case recently cited, the Attorney-General might institute a proceeding to annul a patent, did not prevent the granting of the prayer of the bill.10 The prayer should be for leave to exam

9

5 Dursley v. Fitzhardinge, 6 Ves. 260.

6 Dursley v. Fitzhardinge, 6 Ves. 261-263.

7 Story's Eq. Pl., § 302.

8

9 Angell v. Angell, 1 Sim. & S. 83; N. Y. & B. C. P. Co. v. N. Y. C. P. Co., 9 Fed. R. 578; Story's Eq. PL., § 303; Daniell's Ch. Pr. 1572, 1573.

10 N. Y. & B. C. P. Co. v. N. Y. C. P.

8 N. Y. & B. C. P. Co. v. N. Y. C. P. Co., 9 Fed. R. 578.

Co., 9 Fed. R. 578.

ine the witnesses touching the matter stated, to the end that their testimony may be preserved and perpetuated, and for the proper process of subpoena." It has been held that if it adds thereto a prayer for other, or for general relief, it will be demurrable for that reason,12 although the court may allow an amendment omitting that part of the prayer.13 An affidavit of the circumstances by which the evidence intended to be perpetuated is in danger of being lost, must be filed with the bill. Otherwise, the bill should conform substantially to the requirements of original bills praying relief. Such a bill, it has been held, cannot by amendment be converted into a bill of discovery. It is of itself a bill of discovery only to the extent of enabling the plaintiff to obtain the relief prayed for in it, and he can, therefore, only require an answer from the defendant as to the facts alleged in the bill as entitling him to examine the witnesses.16 An omission of any of the foregoing statements in, or requirements of, the bill will make it demurrable; and if any of the necessary allegations are false, or there is another objection not apparent upon the face of the bill, that may be taken by plea or answer." If the defendant answer denying the plaintiff's case, witnesses may be examined as to the point in issue by either party.18 Otherwise, such a bill should not be brought to a hearing, and if the plaintiff do so it will be dismissed with costs, but without prejudice to the use of the testimony taken in pursuance of its prayer.19 It is said that "If the plaintiff neglects to proceed with the suit, the defendant cannot move to dismiss for want of prosecution; but may move that the plaintiff be ordered to take the next step, within a limited time, or to pay him the costs of the suit. If

11 Story's Eq. Pl., § 306.

12 Rose v. Gannel, 3 Atk. 439; Vaughan v. Fitzgerald, 1 Sch. & Lef. 316; Ætna Life Ins. Co. v. Smith, 73 Fed. R. 318; Dalton v. Thompson, 1 Dickens, 97. But see Equity Rule 21; Cleland v. Casgrain, 92 Mich. 139; S. C., 52 N. W. R. 460.

19 Hall v. Hoddesdon, 2 P. Wms. 13 Vaughan v. Fitzgerald, 1 S. & L. 162; Anon., Amb. 237; s. c., 2 Ves.

316.

14 Earl of Suffolk v. Green, 1 Atk. 450; Philips v. Carew, 1 P. Wms. 117; Shirley v. Earl Ferrers, 3 P. Wms. 77.

Sen. 497; Vaughan v. Fitzgerald, 1
Sch. & Lef. 316; Morrison v. Arnold,
19 Ves. 670; Ellice v. Roupell, 32
Beav. 308.

the defendant neglects to take the steps proper to be taken by him within the prescribed time, the court will, it seems, order the examination of the witnesses to proceed." 20 If no valid objection is made, the court will order the testimony to be taken. Both parties may examine witnesses under the order,21 and either party must be allowed to cross-examine those whom his opponent examines in chief." After the witnesses have been examined, the cause is at an end,23 and if the defendant have examined no witnesses in chief he will be entitled to his costs; but by receiving costs he waives any objection he might otherwise be entitled to make on the ground that he has had no sufficient opportunity of cross-examination.24 The testimony thus taken is filed in the clerk's office, and can be used in a subsequent case at law or in equity in the same court, under an order, which must be obtained by motion upon notice, and supported by proof of the witness's death, or that he cannot be then compelled to attend and testify."

§ 280. Bills to take testimony de bene esse.— Bills to take testimony de bene esse were formerly filed after a suit or action had been begun, in order to take the testimony of such witnesses as, on account of their age, infirmity, or intention to depart from the jurisdiction of the court, it was feared could not be taken in its regular method of proceeding. Such bills must substantially comply with the rules regulating bills to perpetuate testimony, with which, indeed, they have been often confounded. Now that the same relief can be afforded under the statutes both of most of the individual States and of the United States, it is rarely, if ever, that an occasion for their use arises. § 281. Bills of discovery.- Every bill may seek discovery, but the kind of bill called a bill of discovery is a bill filed for

20 Daniell's Ch. Pr. (5th Am. ed.) 1573; Wright v. Tatham, 2 Sim. 459; Beavan v. Carpenter, 11 Sim. 22; Coveny v. Athill, 1 Dick. 355; Lancaster v. Lancaster, 6 Sim. 439.

21 Sheward v. Sheward, 2 V. & B. 116; Earl of Abergavenny v. Powell, 1 Meriv. 434; Skrine v. Powell, 15 Sim. 81; s. c., 9 Jur. 1054.

22 Daniell's Ch. Pr. (5th Am. ed.) 1573, 1574.

23 Morrison v. Arnold, 19 Ves. 670; Vaughan v. Fitzgerald, 1 Sch. & Lef. 316.

24 Watkins v. Atchison, 10 Hare, Ap. xlvi.

25 Daniell's Ch. Pr. (5th Am. ed.) 1574, 1575.

§ 280. Story's Eq. Pl., § 307.

2 Story's Eq. Pl., § 307.

U. S. R. S., §§ 863-865; Equity Rule 70; supra, §§ 109, 134.