shall be transferred and proceeded with in the proper'United States circuit, district, or state court, as the case may be." Previous to this clause in said section 23, it had been provided what should be the disposition of all cases of which the United States circuit and district courts would not have had jurisdiction had they existed at the time the same were commenced. It is provided, it will be seen, that these cases are to be proceeded with "in due course of law;" that they are not to" abate, " but are to "be transferred and proceeded with" in the proper court; that is, the court having jurisdiction of the same. There can be no doubt but that congress intended that these causes should be taken up as they were, and tried by the court having jurisdiction of the same. The same question as is here presented, and under a statute the same in terms, arose in the circuit court of the United States for the district of Colorado, in the case of Bates v. Payson, 4 Dill. 265. In deciding the same, MILLER, the circuit justice, said: "It is admitted that the case was one which might have been brought in a federal court, if such court had existed at the date of the commencement of the suit, as such was within the eighth section of the act. By that section this court is declared to be the successor of the supreme court of the territoryas to all such cases, with power to proceed therein in due course of law.' This means that this court may do all that was left undone by the snpreme court of the territory. The cause was pending in that court for review, and we may proceed as that court would have proceeded if it had retained the case. The way in which, under the territorial statute, the cause was taken to the supreme court is not material to be considered. The act of congress applies to all cases of a federal character pending in that court at the 'late of the admission of the state, and it matters not whether they were removed into that court by vrrit of error or appeal. If it were necessary to remand the cause to the state court. there would be a difficulty in disposing of it. but that was not required. Whether the judgment should be affirmed or reversed, we could enter the proper jUdgment here. and, if necessary. we could try the case again in this c o u r t . . . · " The interpretion of a statute almost word for word by one of such acknowledged ability and eminence has controlling weight with this court, and the interpretation given to that statute pertaining to Colorado will be adopted as the interpretation of the statute under consideration which pertains 10 Montana. The motion to dismiss the appeal in tbil:l cause is overruled.
(CircuU Court, E. D. Wisconsin. December ts. 1800.)
DBPOBmOlfl-ORA.L INTERROGA.TORIES-PRACTICE. ,
Equity rule 67 prOVides that testimony may be taken under commission upon oral interrogatories, if the party desires it, and that "the examiner shall note all objections to questions" but shall not have the power of decision thereon; but the court shall have the power to deal with the costs of all incompetent, imlDe-terial. or irrelevant depositions, " etc.; and that, "in case of refusal of witnesses'to attend, to be 8worn,or to anllwef any quelltion, * * * the same practice shaU be'adopted as
IN. RE ALLIS.
is now practiced with respect to witnesses to be produced on elfamination before an examiner of said court, on written interrogatories." Rev. St. U. S. §§ 863,868, give the judge ot the court of the district in which a witness resides power to compel his attendance and testimony de bene esse, or on a commission with written interrogatories. that, where the testimony of a witness is taken by consent on oral interrogatories before an examiner of the court of the district of his residence, for use in an action pending in another court, the former court has power to decide as to the materiality of questions asked, and may compel the witness to answer.
In Equity. Mr. Parkinson, for the motion. Mr. Mason, contra.
JENKINS, J. The Consolidated Roller Mill Company filed its bill in equity in the circuit court of the United States for the district of Minnesota against the Wilford & Northway Manufacturing Company, to restrain the alleged infringement by the defendant of letters patent of the United States No. 222,895, issued to William D. Gray for a new and useful improvement in roller grinding mills. After issue the testimony of William W. Allis, a resident of this district, and the secretary of the complainant, was taken by consent at his place of residence, upon oral interrogatories, and before an examiner ()f this court. Upon the cross-examination of the witness, and under advice and request of counfor the complainant company, he declined to produce. certaindocuments and to answer a certain question; whereupon the defendant moves for an order compelling the production of the required instruments, and requiring the witness to answer the interrogatory. It is objeeted, in opposition to the motion, that the propriety of the production of the docllment demanded, and the relevancy of the interrogatory propounded, only be determined by the court in which the action is depending, and, until so determined, no jurisdiction is lodged with this court to act in the premises. With respect to actions at law, the practice is deter· mined by the statutes. The testimony of a witness by deposition de bene maybe compelled by the court of the district in which the witness resides, and where the deposition is to be taken. Rev. St. § 863. In such case the court or judge invoked to compel answer determines the materiality of the interrogatory, so far, at least, as involved in the exerdse of the power of compulsion. Ex parte Peck, 3 Blatchf. 113; &: parte Judson, Id. 148. Under a commission with written interrogatories the attendance and testimony of the witness may be compelled by the judge of the court of the district in which the witness resides. Rev. St. .§ 868. In such case, the interrogatories having been settled and their materiality determined prior to the issuance, and by the court issuing the commission, possibly no occasion arises for a ruling by the judge of the court of the district in which the commission is executed as to their materiality; but I apprehend that, upon application to compel answer, he would have the power to determine as well the sufficiency of the an,swer, as the privilege of the witness to decline to answer. - That is an _ inCident to the power-to compel answer, necessary to be exercised to deiermine the alleged .contumacy of the witness.
Under rule 67 in equity, prior to its amendment in 1862, testimony could be taken under commission upon written interrogatories, and, by agreement of parties, upon oral interrogatories. Under the rule as amended, (1 Black, 6,) oral examination, if the party desires it, is the rule; examination by written interrogatories is the exception. The rule provides that"The examiner shall note all objections to questions, but shall not have thepower of decision thereon; but the court shall have the power to deal with the costs of all incompetent, immaterial, or irrt'levant depositions, or parts of them, as may be just; and that in case of refusal of witnesses to attend, tobe sworn, 01' to answer any question put by the examiner, or by counselor solicitor, the same practice shall be adopted as is now practiced with respect to witnesses to "be produced on examination before an examiuer of said court on written interrogatories." It is insisted that the rule contemplates that all questions must be referred, as to their relevancy, to the court having jurisdiction of the cause. Undoubtedly that court has the ultimate control of and decision upon the materiality of the examination. But it is quite another matter with respect to the compulsion of a witness to answer. In such case the court or judge exercising the power must be satisfied of the contumacy of the The witness responds to the authority dominant at his residence. He is beyond the coercive power of the court entertaining the cause. His disobedience is to the mandate of the court issuing the writ of subprena, not to the court issuing the commission. The question of disobedience involves both the materiality of the interrogatory and the privilege of the witness; and both must be considered by the court exercising jurisdiction of the witness; and this, as well for the protection of the witness, as for the proper conduct of the examination. The language used. by Judge BETTS in the CUse of Judsm, 8'ltpra, in answer to II like contention, upon the taking of a deposition de bene esse, is equally applicable here: "The counsel for the motion urges that it belongs to the court in Massachusetts, on the return of the deposition, to determine whether the eYidence is pertinent to the case, and that the court will exclude the evidence if it is found not to be pertinent. This "rgument is correct, in so far as it relates t() the conduct of the commissioner. That officer must write down and return to the court any species of evidence offered before him, and the court will receive or reject it, according to the rights of the parties. But most serious mischief may be in that way effected, if a witness Is compellable, in all cases, to answer, in tile first instance, all questionS put to him. He may be thus compelled to make public important secrets in relation to the rights or charwhich the party extorting them has nu title to or acter of himself or interest in, and which are drawn out through a course of interrogation that would have been peremptorily arrested had the examination taken place in open court." The rule makes no provision for reference of questions to the court in which the cause is' pending. Upon its face it may be said to aSilume that all questions will be answered, reserving the question of costs of immaterial testimony to be dealt with by that court as justice may require. But, as respects the witness, no power is reserved. The construction
COLONIAL & U.,
CO. 91. HUTCHINSON MORTG. CO.
contended, for,_ ;if,colTElct, would establish the !pr.acticetbatevery,objectionto questions,every.Jrefusal to answer, and every qUElstion the character;of tlieanawer, niust first be referrelLto and.passeduponby the court:issuing the commission before the court suhpcena could deal with the witness. This would compel frequent stoppages in the course of an examination, and compel counsel and'the witness, in case of personal privilege claimed, to make frequent journeys "across the continent" to obtain the ruling of a distant court upon-each question as it should arise. I cannot assent to an interpretation oftha; rule that would place such grievous burden upon witness and The practice which the rule provides for is the practice as to the contumacious witness, not as to the settlement of interrogatories. The rule refers to the practice then obtaining in equity with respect to the compulsitm of testimony by the witness, or his punishment for refusal to testily. As an incident to the power of compulsion, and by analogy to· the. rule obtaining with respect to depositions at law under oral interrogatories, the court or judge having jurisdiction of the witness,for the purposes of the exercise of the power of compulsion and the punishment of a refractory witness, must,determine the materiality of 'the question declined to be answered. '
& U. S.
Limited, v. et ai.
(O£rcuo£t Court, S. D. Iowa, C. D. November 21,1890.)
L AOCOUN'1'ING IN EQUITY.
ready made, and the fund thus created was intrusted to defendant to be loaned on localities and improved farms. Defendant was forbidden to make loans in on certain kinds of lands. These instructIons having been violated, complainant tendered to defendant the notes and mortgages whicn represented the loans lmproperly made. and demanded a settlement of the aocount. ,HeZd, that complainant was entitled to an accounting in equity.
to these were added tbe amounts paId'in on the principal and interest of loans al-
From t1meto tim,e complainant forwat'dedlump sums of money to c'lefendant, and
'W)lere a bill in equity against a corp01'8tion waives an answer under oath and seeks nc special discovery from the individual defendantBJ the officers and stOckholders of the corporation, against whom no relief Is askea, are not proper parties defendants, and a demurrer by tbem will be sustained.
Demu.rrers to bill in equity.
Whiting S. Olark and Chas. A. Olark, for complainant. Read Read and Lehmann .for defendants.
5mBAS, J. The complainant is a foreign corporation, engaged in loaning money on farm property, and in the carrying on of this business it cOlll:ltituted the defendant, an Iowa corporation, its agent, and intrusted to it the entire management of its affairs in the state of Kansas. According to the avermentsofthe bill, it was the custom of complainant