HENRY V. TRAVELERS' INS. CO.
,15
HENRY ,'11. TRAVELERS'
INS. CO.
(Oircuit Oourt,
n. OolO'l'ado. 'May 16,1888.) RECORDS Oll' ColWORATION NO'! A
1.
EQUITY-PRACTICE -
BOOKS AND PAPERS -
, The will a motton to compel the opening of the records of a corporation not a party to the suit, but whose records it is claimed would disclose something of importance to the litigation. 2.
, ·Wlter:eA. has jUdgment for costs against B.· and B. has a like judgment in another case against A., one may be equitably setoff against the other pro tanw; particularly where one of the parties is insolV'ent.
SET-OFF AND COUl'lTER-CLAIM-JUDGMENTS FOR COSTS.
In Equity.
J. }'. ':aaE\UJR,
On motions. for complainant. ' and PaUer80n &: Thotna8, for defendant.
J. In Henry v. Insurance 00. are two or three motions 'which were, partially at least, subqlitted to me during the vacation. One is 8 XPClH()p, to 'compel the opening of certain ,records of a corporation not ,8 suit, but whose records it is claimed would disclose some, thing of jmp()rtan,ce to the, litigation. I overruled that motion tElfi1p<?rarily du-ring vacation, and after hearing fuller statements of counsel; the , other da,y I I ,am strengthened in the opinion that 1 then had, not merely by th8:ttl1is is the record of an a but also by the fact of the manner in which this 'title , party has from one to another, and has finally cOlpe to be in thecorporation,' That motion will remain overruled as heretofore. In reference to the costs,there being an interlocutory decree in favor of complainant ,for costs' up to date, the ,drrot ,of the decree prepared byeach counsel containingJhe same provisjpn,I accepted that prepared bythe complain'ant, and afterniaking sorrie'changes, signed it. , Itw.ouldbEl an extretne ,case,that would callupon the court to change a decree thus prepared and ,entered, and no reason why it should be changed. The complain,ant is, to the payment of his costs. The second motion in referthose costs is that, there be ordered an equitable ,set-off of costs adjudged in another case between the sanle partIes. The matter'of set-off depends UP()Il purelyequitableplinciples, and I do not see any reason why it is not equitable that there should be such a set-off. , If A. has a 'judgment in. his against and R has ajudgment ih his favor not, the equitable reasons for the set-off are only 'stronger: motion, therefore, in respect to that set-off pro tanto is sustained. The third motion is in reference to some garnishee proceedings. I do not think a judgment for costs can be subjected to such garnishee proceedings, and that motion will be overruled.
16
FEDERAL REPORTER.
ARNOJ,D
et al. v.
CHESEBROUGR.
(Oilrcuit Oourt, E. D. Nf/IIJ York. TESTIMONY.
A{lril 10, 1888.)
The power of tbe circuit court to appoint special examiners. under the sixty-seventh rule in equity, to take testimon,v outside of its territorial jurisdictIon, is not free from doubt, and the practICe is objectionable.
In Equity. On application (or the appointment of a special examiner to take testimony. J. H. V. Arnold, for complainants. W. S. Logan, for defendant. LACOMBE, J. This is an application for the appointment of a special examiner at Los Angeles, Cal., to take testimony under the sixty-seventh rule in equity. The power ofa circuit court to appoint an examiner to act outside of its territoria). jurisdiction is not free from doubt. Mr. Justice BRADLEY, sitting at circuit, has held that it has such power. Railroad Co. v. Drew, 3 Woods, 691. Mr. Justice BLATCHFORD, sitting in this circuit, has repeatedly refused to make such orders as the one now applied for, on the expressed ground of lack of power. Orders appointing special examiners have no doubt since been made here when both parties assented, or where some exceptional and peculiar state ef facts was disclosed, but it is l,1ot a practice which should be encouraged. No case should come to trialupc)n evidence as to which there is the slightest doubt that the manner of its taking would sustain a conviction of pelj\lry, if willful false swearing were proved. Where witnesses reside in the district, or within 100 miles of the place of holding the court, their attendance may be compelled before the regular examiner. If they are sick, or live beyond the 100-mile liinit, they may be examined by commission; or if an oral examination is deemed more satisfactory, or notice has been given by.either party that he desires the evidence to be taken orally, the Revised Statutes (section 863 et 8eq.) provide a simple and efficient mode for taking their testimony. Bischoff8che:im v. Baltzer, 10 Fed. 1. To proceed to take testimony before special examiners, sitting, perhaps, in half a dozen different states, under general notices which do not give the names of the witnesses, thus compelling opposing counsel to attend in person, is. alike expensive and unnecessary, and should for that reason be discountenahced, even if there were no doubts as to the power of the court to order the proofs to be taken in that manner. The motion is denied.