National Cash-Register Co. v. Leland
Decision Date | 12 April 1899 |
Docket Number | 224-227. |
Citation | 94 F. 502 |
Parties | NATIONAL CASH-REGISTER CO. v. LELAND et al. (three cases). SAME v. WRIGHT et al. |
Court | U.S. Court of Appeals — First Circuit |
Lysander Hill (Thomas H. Russell and Arthur H. Russell, on the brief) for plaintiff in error, National Cash-Register Co.
Robert F. Herrick and Samuel J. Elder (Frederick P. Fish, on the brief), for defendants in error.
Before PUTNAM, Circuit Judge, and BROWN and LOWELL, District Judges.
These are four suits at law, brought by the National Cash-Register Company to recover damages for the infringement of a patent. The cases were tried together, and the jury found verdicts for the defendants. The plaintiff has excepted to some of the rulings made in the course of the trial and preliminary thereto. The plaintiff in error will hereafter be called the 'plaintiff,' and the defendants in error the 'defendants.' The plaintiff filed interrogatories to the defendants in the manner and form prescribed by Pub. St Mass. c. 167. These interrogatories the defendants did not answer, and upon their failure to do so the plaintiff moved the court to default them, which motion the court denied, and ordered the interrogatories to be stricken from the files. The plaintiff thereupon duly excepted.
Section 861 of the Revised Statutes enacts that the 'mode of proof in the trial of actions at common law shall be by oral testimony and examination of witnesses in open court, except as hereinafter provided. ' As the proceeding proposed by the plaintiff in his interrogatories filed in this action at common law is neither by oral testimony nor by examination of witnesses in open court, he seeks to procure its admission by bringing it within section 914 of the Revised Statutes. This provides that the 'practice, pleadings, and form and modes of proceeding in civil causes, in the circuit courts shall conform, as near as may be, to the practice, pleadings and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit courts are held. ' In Ex parte Fisk, 113 U.S. 713, 5 Sup.Ct. 724, the circuit court for the Southern district of New York had imprisoned for contempt a defendant who had refused to answer interrogatories propounded before trial by the plaintiff in the manner prescribed by Code Civ. Proc. N.U. Sec. 870 et seq. In the opinion rendered by the supreme court, Mr. Justice Miller pointed out that the case was one of evidence and procedure; that these matters were dealt with in two chapters of the Revised Statutes; and that, 'if congress has legislated on this subject, and prescribed a definite rule for the government of its courts, it is to that extent exclusive of any legislation of the states in the same matter.' 113 U.S. 721, 5 Sup.Ct. 727. He next stated that the Revised Statutes are intended to provide a system to govern the practice of the federal courts; that they provide a definite mode of proof in those courts, and specify the only admissible exceptions to that mode. 'This mode is 'by oral testimony and examination of witnesses in open court, except as hereinafter provided.' 113 U.S. 723, 5 Sup.Ct. 728. The New York interrogatories, not being a mode of testimony by oral proof, must, to be admissible in the federal courts, fall within the specified exceptions dealt with in section 863 to 870 of the Revised Statutes, which sections, as observed by Mr. Justice Miller, relate exclusively to depositions de bene esse, in perpetuam memoriam, or under a dedimus potestatem. The opinion goes on to point out that the New York interrogatories were not put under circumstances which made it admissible to take a deposition de bene esse, pursuant to the Revised Statutes, and that they did not observe the conditions under which a dedimus potestatem is granted 'according to common usage,' pursuant to section 866. 113 U.S. 724, 5 Sup. 729. It was therefore held that the interrogatories fell neither within the rule of section 861 nor within the exceptions specified in the following sections, and the opinion concludes by repeating that: 'Every action at law in a court of the United States must be governed by the rule of by the exceptions which the statute provides. ' The prisoner was discharged. The circumstances of the case at bar closely resemble those of Ex parte Fisk, and the reasoning of the court has an important bearing on the decision in this case. The Massachusetts interrogatories are sought as a 'mode of proof in trials at law. ' The answers to them are not oral testimony, and therefore, to be admitted, must be brought within the exceptions specified in the Revised Statutes. They are not a deposition taken under the the circumstances in which it is permitted to take a deposition by sections 863 to 865 of the Revised Statutes, and, like the New York examination, the Massachusetts interrogatories violate common usage by seeking to call the party in advance of the trial at law, and to 'subject him to all the skill of opposing counsel to extract something which he may use then or not as its suits his purpose. ' As the Massachusetts interrogatories fall neither within the rule of section 861 nor within the exceptions allowed by the following sections, and as that rule and those exceptions provide an exclusive mode of proof in trials at law in the federal courts, it should seem that the interrogatories are inadmissible here. See, also, Railway Co. v. Botsford, 141 U.S. 250, 257, 11 Sup.Ct. 1,000.
It is further contended by the plaintiff that the interrogatories in question are admissible as a statutory substitute for a bill of discovery in aid of an action at law, and are thus brought within the provision of section 914 of the Revised Statutes. This view of the Massachusetts interrogatories was taken by the circuit court for this district in Bryant v. Leyland, 6 Fed. 125. We think the contention unsound. The supreme court has constantly maintained the distinction between the systems of law and equity, and has refused to adopt into the practice of the federal courts any part of the practice of the state courts which confounds the two systems. Moreover, the provisions of section 14 apply only to suits at law in the federal courts, and, in the absence of express language, can hardly be intended to introduce into the practice and procedure of such suits statutory procedure which is in its nature plainly equitable. We find, therefore, that it has been decided by the supreme court that, if the statutory interrogatories are to be treated as laying the foundation for a deposition, they are inadmissible in federal practice, because a deposition is not authorized to be taken in such a case by the statutes of the United States; that an examination authorized by state statutes has been excluded on this ground when such examination, though not altogether similar, was yet in most respects similar to the interrogatories in the case at bar, the grounds for the exclusion, as stated by the supreme court, being largely applicable to the interrogatories in this case. We find, further more, that, if these interrogatories are to be treated, not as questions put to a deponent, but as a statutory substitute for a bill of discovery, they are excluded as an encroachment upon that control of equity procedure which belongs to the federal courts except when regulated in express terms by an act of congress. For these reasons we think that the interrogatories were forbidden by Revised Statutes, and not authorized by section 914 of the Revised Statutes, or any other federal law.
The plaintiff further contends that, even if the statutory interrogatories be treated as the taking of an ordinary deposition, and hence forbidden by section 861, yet they are permitted by chapter 14 of the Acts of 1892 (27 Stat. 7), which permits the taking of depositions in the mode prescribed by the laws of the state in which the courts are held. This position seems to us plainly untenable. The act of 1892, as stated by the learned judge in the circuit court, was intended only 'to simplify the practice of taking depositions by providing that the mode of taking in instances authorized by the federal laws might conform to the mode prescribed by the laws of the state in which federal courts were held,' and not 'to authorize the taking of depositions in instances not heretofore authorized by the federal statutes, and to confer additional rights to obtain proofs by interrogatories addressed to the adverse party in actions at law. ' For these reasons the exception to the refusal of the judge of the circuit court to default the defendants must be overruled.
We now come to the plaintiff's exceptions taken in the course of the trial. Two of these relate to the exclusion of testimony. Mr. Dayton, an expert, and one of the plaintiff's witnesses, stated that the omission of a 'connecting mechanism,' so called, would be a 'fatal fault' in a cash register. On objection by the defendant, the learned judge below held that the witness might describe the results of the omission of the connecting mechanism, but could not be permitted to call that omission a 'fatal fault.' As the word 'fatal' contained an inference which went beyond the province of an expert, we think that the learned judge was right; and, moreover, under the circumstances, the ruling seems not to have been hurtful to the plaintiff's case. The same witness was not permitted to testify, on direct examination, that a...
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