The only power of discovery or inspection conferred by Congress is contained in the above section. Union Pac. R. Co. v. Botsford, (1891) 141 U. S. 250, 11 S. Ct. 1000, 35 U. S. (L. ed.) 1734, wherein it was held that in an action for damages for personal injuries the person injured could not be compelled to submit to a surgical examination before trial.

The purpose of this section was to give courts of law the power to do what courts of equity could do in the matter of using documents, without the formality of going into a court of equity with a bill of discovery in aid of an action at law. Carpenter v. Winn, (1911) 221 U. S. 533, 31 S. Ct. 683, 55 U. S. (L. ed.) 842; Gregory v. Chicago, etc., R. Co., (1882) 10 Fed. 529; Crandall v. Piano Mfg. Co., (1885) 24 Fed. 738; Ryder v. Bateman, (1898) 93 Fed. 31; Owyhee Land, etc., Co. v. Tautphaus, (C. C. A. 1901) 109 Fed. 547, 48 C. C. A. 535; Hylton v. Brown, (1806) 1 Wash. 298, 12 Fed. Cas. No. 6,981.

Federal and not state legislation as controlling practice. Although the practice which prevails in the highest courts of the state ordinarily prevails in the federal courts, yet when Congress has legislated upon a matter of practice for the federal courts, as in the ease of the production of books and writings in actions at law, such legislation becomes the sole and supreme guide, to the exclusion of the state code. Gregory v. Chicago, etc., R. Co., (1882) 10 Fed. 529; Paine v. Warren, (S. D. N. Y. 1888) 33 Fed. 357; Lucker v. Phoenix Assur. Co., (C. C. S. D. 1895) 67 Fed. 18; U. S. v. National Lead Co., (1896) 75 Fed. 94; Kaiser v. Chicago, St. P., M. & O. Ry. Co., (D. C. Minn. 1912). 192 Fed. 1013; Schatz v. Winton Motor Carriage Co., (S. D. N. Y.) 197 Fed. 777; Cheatham Electric Switching Device v. American Automatic Switch Co., (S. D. N. Y. 1912) 198 Fed. 496. See contra, Frescole v. Lancaster, (E. D. Pa. 1895) 70 Fed. 337; Gray v. Schneider, (S. D. N. Y. 1902) 119 Fed. 474.

"Actions at law."-The section relates to actions at law only, and has therefore no application to suits in equity. Bischoffsheim v. Brown, (1886) 29 Fed. 341; Havermeyers, etc., Sugar_Refining Co. v. Compania Transatlantica Espanola, (1890) 43 Fed. 90; Ryder v. Bateman, (W. D. Tenn. 1898) 93 Fed. 31; Oro Water, etc., Co. v. Oroville, (N. D. Cal. 1908) 162 Fed. 975; Childs v. Missouri,

etc., R. Co., (C. C. A. 8th Cir. 1915) 221 Fed. 219, 136 C. C. A. 629. But in actions at law, proceedings for obtaining inspection of documents on the trial are regu lated by this section. Kirkpatrick v. Pope Mfg. Co., (C. C. Conn. 1894) 61 Fed. 46. A proceeding in rem is not within the provisions of this section. U. S. v. Twenty-eight Packages Pins, (1832) Gilp 396, 28 Fed. Cas. No. 16,561.

Necessity that circumstances be such as would have justified discovery in chancery. This section restricts the proceedings to cases and under circumstances where the parties might be compelled to produce the books and writings by the ordinary rules of procedure in chancery. Boyd v. U. S., (1886) 116 U. S. 616, 6 S. Ct. 501, 29 U. S. (L. ed.) 746; Owyhee, etc., Iron Co. v. Tautphaus, (C. C. A. 9th Cir. 1901) 109 Fed. 547, 48 C. C. A. 535; Finch v. Rikeman, (1851) 2 Blatchf. 301, 9 Fed. Cas. No. 4,788.

Where the evidence sought for will not only have the effect of enabling the plaintiff to recover his entire damages, but its direct consequence will be to subject the defendant to a penalty, and the plaintiff has not relinquished his claim to such penalty, the order will not be granted. because the authority conferred by the section can be exercised only in cases where the relief might be had by a bill of discovery, and as a substitute for that proceeding, and a bill of discovery will not be allowed in any case where the discovery will subject the defendant to a penalty unless the bill relinquishes all claim to the penalty. U. S. v. National Lead Co., (1896) 75 Fed. 94; Finch v. Rikeman, (1851) 2 Blatchf. 301, 9 Fed. Cas. No. 4,788.

It has been held that where a qui tam action is instituted under R. S. sec. 4901 (see PATENTS) for the recovery of penalties for the alleged false marking of certain articles as patented, the defendant cannot be compelled to produce his books and papers before trial for examination by the plaintiff for the purpose of showing the number of penalties alleged to have been incurred; for such an action is a penal action, and the provision of this section expressly limits its application to cases and circumstances where the party might be compelled to produce the books and papers "by the ordinary rules of proceedings in chancery;" and "a bill of

discovery will not lie in a case which involves a penalty or a forfeiture." Newgold v. American Electrical Novelty, etc., Co., (1901) 108 Fed. 341. Compare American Banana Co. v. United Fruit Co., (S. D. N. Y. 1907) 153 Fed. 943, wherein it was held in a penal action instituted by a person to recover treble damages under the Sherman Anti-Trust Act that a motion would lie under this section to require the corporation to produce certain books and papers.

In L. Bucki, etc., Lumber Co. v. Atlantic Lumber Co., (C. C. A. 5th Cir. 1903) 121 Fed. 233, 57 C. C. A. 469, which was an action for damages for maliciously suing out two writs of attachment and the levying and maintaining the levy of such writs upon the properties of the plaintiff in error, the court said: "The second assignment of error is to a ruling and order of the court requiring plaintiff to produce certain of its books kept in New York and certain other books specified in the exception in advance of the trial. Section 724 of the Revised Statutes provides for such orders in cases and under circumstances where parties might be compelled to produce the same by ordinary rules of proceeding in chancery. The grounds of the motion to produce in this instance were that the defendants expected to obtain from said books evidence tending to show that the plaintiff was October 1, 1897, insolvent, and not realizing any profit out of its business; and it was alleged that said books contained statements which would show that the plaintiff was, on October 1, 1897, actually unable to meet its accrued obligations. The reasons given for producing the books appear to us to be insufficient, for neither the defendants' insolvency nor inability to actually meet its accrued obligations constituted any defense in the present suit."

on

Existence of statutory remedy as bar to issuance of subpoena duces tecum.- It has been held that the power of a federal court to require the production of documentary evidence is not limited to an order made on motion, as provided by this section, but it has inherent power, as well as express authority, under R. S. sec. 716 (embodied in Judicial Code, sec. 267, and repealed by section 297 thereof; see JUDICIARY), to issue a subpoena duces tecum and to enforce obedience thereto by proceedings for contempt. American Lith. Co. v. Werckmeister, (C. C. A. 1908) 165 Fed. 426, 91 C. C. A. 376. But in Kirkpatrick v. Pope Mfg. Co., (C. C. Conn. 1894) 61 Fed. 46, a subpoena duces tecum was held inadequate as a substitute for the statutory remedy in an action to recover royalties.

Existence of statutory remedy as bar to bill of discovery. The jurisdiction in equity for discovery originated in the absence of power in courts of law to compel a discovery by their own process, either

But

by means of the oath of a party or by the production of deeds, books, and writings in his possession or control. there is authority that it does not follow, because courts of law now have power to extend such relief, that a court of equity should forego the exercise of an ancient and well-settled jurisdiction. No principle, it has been said, is more vigorously asserted by courts of equity than that they will not yield a jurisdiction once legitimately exercised because an enlargement of the ordinary powers of courts of law has rendered a resort to equity no longer necessary. There can be no ebb and flow of jurisdiction dependent upon external changes. Being once legitimately vested in the court, it must remain there until the legislature shall abolish or limit it; for without some positive act the just inference is that the legislative pleasure is that the jurisdiction shall remain upon its old foundations. Accordingly, it has been held that a court of equity should not refuse to entertain a bill for discovery, although, by the enlargement of the jurisdiction and remedies exercised by courts of law, similar relief could be obtained by the complainant in his action at law. Colgate v. Compagnie Francaise, etc., (S. D. N. Y. 1885) 23 Fed. 82. See to the same effect Paine v. Warren, (S. D. N. Y. 1888) 33 Fed. 357.

There is also authority that in ordinary cases a pure bill of discovery can no longer be maintained in the equity courts of the United States because under this section it is no longer generally needed: in other words, in a case in which discovery and relief are sought, but the only ground for equitable relief appears to be a discovery of evidence to be used in the enforcement of a purely legal demand, the jurisdiction cannot be maintained. Safford v. Ensign Mfg. Co., (C. C. A. 4th Cir. 1903) 120 Fed. 480, 56 C. C. A 630, citing Ex p. Boyd, (1881) 105 U. S. 647, 26 U. S. (L. ed.) 1200; U. S. v. McLaughlin, (C. C. Cal. 1885) 24 Fed. 823; Preston v. Smith, (E. D. Mo. 1886) 26 Fed. 884; Rindskopf v. Platto, (E. D. Wis. 1886) 29 Fed. 130; Paton v. Majors, (E. D. La. 1891) 46 Fed.

210.

It has been held that by virtue of the above section there seems to be no longer any occasion to resort to equity to obtain a discovery and accounting where the payment of royalties is sought. as there is now an adequate remedy at law. Washburn, etc., Mfg. Co. v. Freeman Wire Co., (E. D. Mo. 1890) 41 Fed. 410.

Filing bill of discovery as bar to statutory remedy. In Iasigi v. Brown, (1853) 1 Curt. 401, 12 Fed. Cas. No. 6,993, there was a motion, grounded on affidavit, to compel the production and delivery to the clerk of the court of certain papers alleged to be material on a trial at law of the action. The existence of the papers and their materiality were not denied.