BALLARD
v.
M'CLUSKEY.
677
McCLUSKEY.
(Cf,rcuU Court, B. D. New York. July 28,1899.) DBPOSITIONS-AGREEMENT FOR TAKING-AllANDONMENT.
Where, under equity rule 67, counsel have agreed that the deposition of a wit,. ness may be taken down by a typewriter in their presence. at the otllce of one of them, in the absence of the examiner. but under his construotive direction, one of the counsel cannot abandon such examination without adequate cause shown to the court on a subsequent motion to compel the production of the witness before the examiner, and, if he does abandon it without such cause, the testimony of the witness will be closed.
In Equity. Bill by Charles W. Ballard against James J. McCluskey for infringement of a patent. On motion to compel production of a witness before the examiner. Proper practice stated. W. D. Edmonds, for complainant. A. B. Carrington, for defendant. SHIPMAN, Circuit Judge. This is a motion to compel the complainant to produce Charles H. Treat, a witness, for further cross-examination. The action is a bill in equity for the infringement of a patent, and the testimony of the witness, so far as it had progressed, had been taken orally under rule 67, and had been by agreement taken down by a typewriter, at the office of one of the counsel. in the absence of the examiner, but under his constructive direction. Some differences of opinion having occurred between the counsel, the cross-examining counsel stated that the cross-examination was closed until the witness should be produced before the examiner for further examination, on the ground that the opposing counsel were" unable to agree as to the cross-examination, and defendant's counsel refuses to proceed in the absence ·of the examiner." The complainant insisted that the cross-examination should then proceed, or that the witness should sign his deposition,and his examination be considered as closed. The record does not disclose ail adequate cause for the refusal to contimie the examination. The defendant's counsel did not proceed, the deposition was signed, and the witness dismissed. Since the new rule 67 waS promulgated, the practice has been for counsel to agree that the depositions may be taken down by a typewriter, in their presence, at the office of one of them, in the absence of the examiner, but under his constructive direction. The question under this motion is as to the right of one counsel to refuse to continue the examination, and to demand the production of the witness before the examiner; in other words, to declare the agreement at an end. When counsel have entered upon the taking of a deposition under such an agreement as I have stated, the examination cannot be abandoned until the witness is produced before the examiner, without adequate cause. If counsel abandon the agreement without adequate cause which shall be satisfactory to the court, the testimony of the witness under examination will be closed. Counsel are not at liberty to enter
FEP.EML ;REi>O:&TD,
voI.o2.
upon the taking of testimony under a stipulation, and to abandon the examination for any rea.sp:p., . Such l!<'C01;lrse of is not only irritating, but exceedingly expensive. On the other hand, they will be permitted to abandon, if.,rupon motion'. to compel,the;reproduction of the witness for examination, such abandonment is shown to have been reg occttsion. In this case, l' do notthink thattoe,dmendant's,counsqlhad,adequate reason for his dissatisfaction; bu,t this first,questi&#,pf tnekiridW,hich 'aris¢riFluder th'} new practice,aud, as CounseI'acted under both lack of knowledge and impatience', l'ani not disposed to be 'rigorous, hut, announcing what will be the course in the future, permit an additional cross-examination of the accor«lance with the original agreement. especially us he is in New York city, and can manifestly be produced without trouble or much expense.
, ;"
et al. v. CHARLESTON, '(SH:A.tw et al., Interveners.) " j
C.
& O. R. 00., ,
(OirCUit Court, D. South
CaroUn'a; October 28, 1892.)
to a railroad company in maintaininlt before the courts the aid bonds'$re not of a character to take precedence of the companyls mortglloge bonds" within tlle doptrine of Fosdick v. SchaU. 99 U. S. 285" and equity'ball" lid authoriti to give them such precedence, especially when the service' 'w.,eNften(j.ered tWQ ,,.ears before the appointment of the receiver. 'i,1'" .
1l.8A,ME.,
Tllefact tnat such !1ervlces resulted iii benefit to tlle bondholders will not justify dlsplaoing the tatters' lien, when they were not parties to the contract of empioyment. '
In against close a
qompany of Pennsylvania and otbers Chicago Railroad Company to fore. Heard, separateinterveniI1 gpetitions of Robert W. firm p(, & Bro., asserting claims for legal paY ... t prior to the aatiSfact,ion , the mortgage " For in thecQurse of see 45 4136", -48 .Fed. E;ep. 45, 188, 49 Fed. Rep. 693. Mitchell.,&?, Smith, for , Samuel Lord and A.. T. Smythe, for respondents.
by
Judge. These two petitions were heard together. Several ,townships in South Carolina had su bscribed to the capital stock of the Gincipnati & Chicago Railroad Company, the subscription,payablll, ,in coupon township bonds. The townships were created and given the power to subscribe in this way by the
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