79 F. 133 | 2d Cir. | 1897
This is a writ of error to set aside an order of the circuit court for the Southern district of New York which adjudged the plaintiff in error to have been guilty of contempt.
Irvin Belford was appointed special master by the circuit court of the Uniied States for the Northern district of Ohio, in a bill in equity for the foreclosure of a railroad mortgage which was pending in that court, and was directed to take testimony in the suit in the city of New York. Upon the petition of one of the parties, an order was granted by the circuit court for the Southern district of New York which directed the clerk of (hat court to issue a subpoena addressed to Isaac W. White, then of said city, and directing him to appear before said master at a named time and place in said city and testify in that suit. The subpoena was duly issued and duly served upon White, who refused to obey and did not obey it. Upon an order requiring him to show cause why he should not be punished for contempt, he appeared before the circuit court, and upon hearing he was adjudged guilty of a. contempt of court by reason of his disobedience to the order of the subpoena.
The questions presented upon the writ of error are whether the circuit court for the Northern district of Ohio had power to appoint an examiner or a special master to take testimony in the city of New
The ancient general English chancery rule excluded oral testimony, and received at the hearing only that which was contained in written depositions. 1 Greenl. Ev. § 312. But section 30 of the judiciary act of 1789 provided that “the mode of proof by oral testimony and examination of witnesses in open court shall be the same in all the courts of the United States, as well in the trial of causes in equity and of admiralty and maritime jurisdiction as of actions at common law.” Section 25 of the statute of April 29, 1802 (2 Stat. 166), modified this provision, and left “it to the discretion of the courts in those states where testimony in chancery is taken by depositions, to order, on the request of either party, the testimony of the witnesses to be taken by depositions.” Conn v. Penn, 5 Wheat. 424. Section 6 of the statute of August 23, 1842 (5 Stat. 518), empowered 'the supreme court, from time to time, to prescribe and regulate the forms and modes of taking and obtaining evidence in all cases. This section is now reproduced, so far as equity and admiralty suits are concerned, in sections 862 and 917 of the Revised- Statutes, so that the supreme court has been vested with sufficient apparent power upon the subject. At the December term, 1861 (1 Black, 6), the sixty-seventh rule in equity was amended by the supreme court so that, after notice by either party that he desired the evidence in the cause to be taken orally, “all the witnesses to be examined shall be examined before one of the examiners of the court, or before an examiner to be specially appointed by the court.” The amendment further provided that in case of refusal of witnesses to attend to be sworn, or to answer any question put by the examiner or by counsel or solicitor, the same practice shall be adopted as is now practiced with respect to witnesses to be produced on examination before an examiner of said court on written interrogatories. This practice had long been specified in the statute of January 24, 1827 (4 Stat. 197), which is reproduced in section 868 of the Revised Statutes, and which provided, in substance, that, when a commission was issued by any court of the United States for taking the testimony of a witness named therein at any place without any district, the clerk of any court of the United States for such district should issue a subpoena to the witness, and if the witness, after service of the subpoena, refused to appear, the judge of the court whose clerk issued the subpoena could proceed to enforce obedience or punish the disobedience. The same practice is prescribed in equity rule 78, which is a reproduction of equity rule 28, announced by the supreme court in 1822 (7 Wheat, xi.), and one of the rules prescribed by the court in pursuance of the authority conferred by section 2 of the act of May 8, 1792, which will be hereafter stated (1 Stat. 272). Story v. Livingston, 13 Pet. 359.
This historical review of the statutes shows—-what is familiar— that a court of the United States for one district had long been empowered to send a commissioner into any other district to take the testimony of a person residing in such district, and that the courts of