NORRIS f'. HASSLBB.
rels in London was estimated in ascertaining the dutiable value of the cement, and that the former is the usual and necessary covering for the protection and transportation of the latter. It is impossible to sustain the legality of this valuation, or the collection of the duties thereon, without absolutely ignoring this prohibitory clause in section 7 of the act of 1883, as seems to have been done in the opinion of July 14. 1884. The demurrer is overruled.
and others v.
(Oircuit Court, D. New Jerley.
WITNESS FEES-MILEAGE-TRAVELING EXPENSES.
A witness who has been served with a snbpoona and received money for trav. eling expenses cannot refuse to obey such subpoona because the proper amount of mileage has not been paid. .. In the courts of the United States, witnesses, if they have the means, are obliged to obey the process of the COUrl and attend, whether their fees are ad. vanced or not, and a witness who can pay his expenses and refuses to attend because the money is not tendered him, may be punished for contempt. The exemption of a witness or party to a suit from service of process does not extend to service of a subprena to testify in the same cause on which he is giving attendance.
SAME-ExEMPTION OF WITNESS FROM SERVICE IN OTHER SUIT.
On Rule to Show Cause, etc. NIXON, J. Under section 725 of the Revised Statutes, power is conferred upon the courts of the United States to punish for contempts of their authority by fine and imprisonment. The proviso of the section includes within the penalty "disobedience or resistance by a.ny '" lit '" witness to any lawful writ, process, order, rule, decree, or command of the said courts." This authority is exercised by the courts for two purposes: (1) To punish the offender for the disrespect to the court; and (2) to compel his performance of some act or dnty required of him by the court which he refuses to perform. See In re Chiles, 22 Wall. 168. Upon affidavits filed, makmg a prima facie case, a rule has been issued in the above cause, and served upon the defendant, requiring him to show cause before the court why he should not be adjudged to be guilty of contempt in not obeying a subpwna duces tecum, duly served, to appea'r before the examiner in Elizabeth on the twentyfourth of January last. At the hearing two reasons were relied on by the defendant why the rule should not be made absolute: (1) Because the defendant was necessarily absent in New York on the day on which the subpama required his attendance here; (2) because the sUbpcena was not legally served.
IN BE BROCI:WAY.
and witnesses are not only privileged from 'arrest op oivil process, but also from the service of summons in civil actions, while attending court. The propriety of such a rule for witnesses is clear. They are compelled to attend by virtue of the process of the court, and the court feels under obligation to protect them, not only while attending, but in going and returning. My attention, however, has not been called to a case, nor do I think that one exists, where such an exemption has been extended to the service of a subpama to testify in the cause on which they are giving attendance; and it does not come within the reason of the rule. There are a number of cases in the reports where proceedings for attachment against witnesses have been taken for their refusal to obey the process of subpama, served in the very presence of the court; but in none of them has the suggestion been made that such a service was unlawful. See Jupp v. Andrews, Cowp. 845; Pitcher v. King, 2 Dow!. & L. 755; Bowles v. Johnson, 1 W. BI. 36. That a party to a suit can be compelled by a subpama duces tecum to produce papers and documents to be used in the trial as evidence is no longer an open question. Murray v. Elston, 23 N. J. Eq. 212. All the reasons assigned by the defendant for not obeying the writ and producing the papers required rather aggravate than excuse or justify his refusal. The rule must be absolute. As the object of the proceeding is to compel the defendant to perform an act or duty which appears to be within his power, the judgment to be entered will be largely controlled by his conduct hereafter.
(Oircuit Oourt, S. D. New York.
BANKRUPTCy-REFUSAL OF DrSCHARGE-SECOND ApPLICATION-EvIDENCE-REB ADJUDICATA-AMENDATOHY ACT OF JULY 26, 1876.
A bankrupt having appI:ed for his discharge, it was denied by the district court, because his application was not made within one year from the date of adjudication of bankruptcy. Specifications opposing the discharge had been filed hy creditors, including. among other grounds of objection, that the bankrupt had not kept proper books of account: and proofs were taken upon the issue, but were not considered by the court. Subsequently, and after the passage of the act of July 26, 1876, allowing an application for discharge to be made" at any time after the expiration of 60 days, and before the final dispos:tion of the cause," the bankrupt madc a second application for dischal'gein the same proceeding, which WIS opposed by the same creditors upon the same specifications, together with additional grounds of opposition. The proofs taken on the first application were used by the opposing creditors upon the second application, and by these proofs alone it was made to appear th:tt the bankrupt had not kept proper hooks of account, and on that ground the discharge was denied. Held, on appeal to the circuit court, (1) that the proofs taken 011 the former application were competent; (2) that the former decision, denying the discharge, was conclusive between the hankrupt and his creditors, and It bar to the seconr! application; (3) and that the subsequent amendment of the bankrupt act did not impair or affect the controlling force of the previous adjudication.