| U.S. Circuit Court for the District of Eastern Pennsylvania | May 19, 1897
Lead Opinion
The plaintiffs have moved “for an order on A. J. Cassatt, requiring him to testify, under the eight-day rule pending herein,” touching a certain agreement. The eight-day rule referred to was entered under clause 3 of rule 10 of the rules at law
“A rule may be entered by cither party to take the depositions of witnesses, without regard to the circumstance of their being ancient, infirm, or going witnesses, stipulating, however, eight days’ notice to the adverse party; subject, nevertheless, in all other respects, to existing rules and regulations.”
This provision was included, as I am informed, in a body of rules which the bar, or- a committee thereof, submitted to the court, and whic-x was therefore promulgated, about 18 years ago. This clause seems to have been derived from a rule of the courts of the state of Pennsylvania, in which, no doubt, it may be properly enforced; but its validity as prescribing a mode of procedure for this tribunal is attacked, both on behalf of the witness and of the defendant, upon the ground that it is in conflict with section 861 of the Revised Statutes. It is not desirable that I should pass upon this broad question on this application. It is enough for the present purpose that I should say that it is not pretended, in this instance, that any fact exists to bring the proposed examination within any of the specified exceptions to the section which has been referred to, and which is in these words: “The mode of proof in the trial of actions at common law shall be by oral testimony and examination of witnesses in opeD, court, except as hereinafter provided?’ In my opinion, the very question now presented was decided in Ex parte Fisk, 113 U.S. 713" court="SCOTUS" date_filed="1885-03-02" href="https://app.midpage.ai/document/ex-parte-fisk-91332?utm_source=webapp" opinion_id="91332">113 U. S. 713, 5 Sup. Ct. 724, and in such manner as to preclude the granting of the order now asked for. I cannot agree that “the question is one of personal privilege of A. J. Cassatt.” It is a question of the court’s authority. The statute having prescribed “the mode of proof,” neither as respects the witness nor a party can a different mode be substituted. .
Nor can I sustain the plaintiffs’ contention that “the defendant is estopped.” It is not necessary to determine the dispute as to which side introduced the agreement about which it is proposed to examine this witness. .The plaintiffs’ right to examine him. at the proper time and place, upon that or any other subject, is not now for decision; but that the court has no power to subject him to the particular examination proposed, or to any other, by the method now insisted upon, I have no doubt.
The motion for an order requiring A. J. Cassatt to testify is denied.
Rehearing
On Motion for Rehearing.
The two cases referred to in the properly candid brief submitted by plaintiffs’ counsel upon his motion for reargument of his motion for an order requiring Mr. Cassatt to testify are both squarely against the granting of the original motion. I follow the decisions in those eases with entire satisfaction. I think it would be unfortunate if the act of March 9, 1892, had been differently construed. Where, as in this instance, no good reason appears for taking the testimony of a witness by deposition and in advance of the trial, instead of in open court, the latter, which is the usual and regular course, is much to be preferred. The motion for reargument is denied.