16 FEDERAL nmrorrrmn.
ARNOLD et al. v. Cnmsmsnoueu.
(Uzrcuit Court, E'. D. New York. April 10, *1888.) ·
EQ,UITY—PRACTICE—TAKING Tnsrmomr. 1 4
The power of the circuit court to appoint special examiners, under the
sixty-seventh rule in equity, to take testimony outside of_its territorial juris-
diction, is not free from doubt, and the practice is 0b_] ectionable.
In Equity. On application for the appointment of a special exam-
iner to take testimony. t J
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—sev-
enth rule in equity. The power of a circuit court to appoint an exam-
iner to act outside of its territorial jurisdiction is not free from doubt.
Mr. Justice BRADLEY, sittingat circuit, has held that it has such power.
Railroad Co. v. Drew, 3 Woods, 697. Mr. Justice ,BLATCHEORD, 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 ap·
pointing special examiners have no doubt since been made here when
both parties assented, or where some exceptional and peculiar state of
facts was disclosed, but it is not a practice which should be encouraged.
No case should come to trial upon evidence as to which there is the
slightest doubt that the manner of its taking would sustain a conviction
- of perjury, if willful false swearing were proved. Where witnesses re-
side 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 limit, 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 seq.) provide a sim-
ple and eihcient mode for taking their testimony. Bischqfscheim v. Balt-
zer, 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, isalike expensive and unnecessary, and
should for that reason be discountenanced, even if there were no doubts
as to the power of the court to order the proofs to be taken in that man-
ner. The motion is denied. A