for a considerable length of time increased the liability to be destroyed or injured by fire were held to be inadmissible, on the ground that the subject was within common knowledge. S. C., 7 Am. Rep. 522.

In Sowers v. Dukes, 8 Minn. 23, the action was to recover for a breach of contract in neglecting to build and keep in repair a fence around a certain field whereby plaintiff's crops were injured. Upon the trial the plaintiff, a witness in his own behalf, was asked this question: "Was the fence a proper fence to turn stock, and could they easily put their heads through between the fence and rider?" This question was objected to on the ground that the jurors were the proper judges as to whether the fence was sufficient after it had been described. The objection was overruled, and the witness was permitted to answer; and the question was held to be incompetent, and the judgment was reversed for that reason. It was held that the witness should have stated the facts; that the jury should have based their judgments upon the facts, and that it was not a proper subject for opinion evidence.

In Enright v. S. F. & S. J. R. Co., 33 Cal. 230, in a suit against the defendant for injury to plaintiff's cattle caused by an insufficient fence, it was held that the evidence of farmers that the fence was sufficient to turn cattle was improper.

In Bills v. City of Ottumwa,35 Iowa,109, the defendant was sued for injuries to the plaintiff alleged to have been sustained in consequence of the bad condition of the street, which caused him to be thrown from a wagou loaded with hay; and it was held that the opinion of a farmer that a wagon loaded in the manner in which the one was upon which the plaintiff was riding was not safe for riding upon over ordinary roads was inadmissible.

In Concord R. v. Greely, 23 N. H. 237, in a proceeding to assess damages for a right of way of a railroad, it was held that the opinion of a farmer as to the effect upon a farm of a railroad passing through it was inad missible.

In Paige v. Hazard, 5 Hill, 603, in an action for negligence in injuring and sinking a canal boat, the plaintiff, after proving the cause of action as alleged, called a witness, who testified that he was a boatman, and knew the boat in question previous to her being injured; that he had raised sunken boats and caused them to be repaired, and he was then asked the following question: "From the description of the situation of the boat, as given by the witnesses, what would the damage be?" and it was held improper, and that the witness' answer was inadmissible.

In Teall v. Barton, 40 Barb. 137, the action was brought to recover damages caused by fire communicated by a steam dredge, and it was held that a question put to a witness who had had experience, as to whether he considered it dangerous to use a steam dredge without a spark-catcher, was properly overruled, it not being a question of science or skill, and not falling within the rule relating to evidence by experts.

In McGregor v. Brown, 10 N. Y. 114, the action was by a landlord against his tenant for waste; and it was held that the opinions of the witnesses that the acts complained of were not injurious to the inheritance, and therefore not waste, were inadmissible.

In all these cases it was held that the witnesses should be confined to a statement of the facts, and that it was the province of the jury to draw inferences and form judgments. In most of them it was as probable as it was here that some of the jurors might not know as much about the subject of inquiry, and not be as capable of forming opinions or drawing inferences from the facts as the witnesses; and yet it was held, as the subjects of inquiry were of such a nature that

jurors generally might be presumed to have sufficient knowledge of them to enable them to discharge their duty when the facts were placed before them, that it was safer to rely upon them than upon the opinions of witnesses, however expert they might be. Here the subject of inquiry related to the common elements of fire, and wind, and dry wood, and brush, and timber, with which every man has some acquaintance; and whether, under all the circumstances, it was a safe, prudent or proper act to set a fire, a jury with the common experience which, if not all men, most men have, would be sufficiently competent to form an opinion. This is not a case where it was impossible to place the facts before the jury. The character of the wind, condition of the soil as to being dry or not, the character of the brush and timber, the nature of the ground, the distance, exposure, every thing, could be proved so that the jury would have substantially as correct knowledge in reference to it as the witnesses; if not as correct, they could acquire knowledge sufficiently correct to enable them to discharge their duty as jurors.

We have carefully examined the numerous cases cited in reference to this evidence in the brief of the learned counsel for the defendant, and none of them sustain its admission. .They show that farmers may be permitted to give their opinions of the value of farms, and farın stock and produce; that witnesses may give their opinions on questions of identity, or whether a person is under the influence of liquor, and as to many other matters. There is a broad range for expert evidence, but none of the authorities go far enough to hold that this evidence is within the proper range.

The question of expert evidence was not involved in the case of Hays v. Miller, 6 Hun, 320; 70 N. Y. 112. The action in that case was brought to recover damages caused by fire to the lands of the plaintiff's estate through the alleged negligence of the defendant; and the referee, instead of passing upon the question of negligence directly as one of fact, made special findings of the circumstances, and from those found negligence as a conclusion of law, and he ordered judgment in favor of the plaintiff. The question under consideration upon the appeal was whether the inference of law was justified by the facts found. The appellant claimed that it was the duty of this court to review the conclusions of the referee, and decide, as a matter of law, whether the facts and circumstances found by him established that the burning upon the defendant's land was conducted in an improper and negligent manner, or at an improper time and season, or whether it was conducted in a proper manner and at a proper time; and we held that this court was not competent to draw the conclusions and inferences from the facts; that that was a matter for the referee, and that we were concluded by the inferences and conclusions drawn from the facts by him; and in discussing that question some language was used by the judge writing the opinion in this court, which, it is claimed, favors the contention of the respondent here that these questions were proper to elicit expert evidence. But as we have seen, the learned judge writing the opinion did not have in mind the subject of expert evidence, and was simply discussing the competency and power of this court to draw inferences from facts and circumstances found by the referee; and it was held, as we always hold in such cases, that the inferences are for the triers of facts.

We are therefore constrained to reverse this judg ment and grant a new trial, as we think an important rule of evidence was violated. To uphold the propriety of these questions would carry the rule of expert evidence further than it has ever been carried in this State, and would be an unwarranted invasion of the rule which confines witnesses to facts and excludes

CARPENTER V. BOSTON & ALBANY RAILROAD Co.* One waiting on the platform at a railroad station for a train, and injured by a mail bag thrown from the train while in motion, such throwing being customary and well known to the company, may maintain an action against the railroad company.

APPEAL from judgment of the General Term, third

department, entered upon an order.

This action was brought to recover damages for injuries alleged to have been caused by defendant's negligence.

Plaintiff desiring to take passage on defendant's road, and having purchased a ticket, went out on the platform of the depot to wait the arrival of an approaching train. The train had a postal car attached ahead of the passenger cars. As said car passed the platform a heavily-loaded mail bag was thrown therefrom by the postal clerk or agent in charge, and struck plaintiff.

Charles L. Beale and R. E. Andrews, for appellant.

John Cadman, for respondent.

DANFORTH, J. The plaintiff was injured before the actual commencement of his journey, but he was lawfully on the platform because he was a passenger, and was approaching the train, as the defendant concedes. "in the usual and ordinary way," to enter the car on which he had purchased a right to travel. The law in such a case is well settled. It imposes an obligation on the railroad company to take reasonable care that a person holding that relation to it shall while on its premises be exposed to no unnecessary danger or one of which it is aware, and requires it to provide for him a safe passage to the train. It is obvious that was not done in this case. The plaintiff was knocked down, and severely hurt by a loaded mail bag thrown from the postal car while the train was in motion, and the only answer to his demand for compensation is that the missile was negligently thrown by the person in charge of the mail car, an employee or servaut of the United States, and not of the company; that he was an independent agent, and hence the defendant says, it is not liable for his act. In support of this contention its learned counsel cites Norton v. Western R. Co., 15 N. Y. 444; Blair v. Erie R. Co., 66 id. 313; S. C., 23 Am. Rep. 55; Penn. R. Co. v. Price, 96 Penu. St. 256; 23 Alb. L. J. 69; S. C., 14 Am. Rep. 190; and Putnam v. Broadway, etc., R. Co., 55 N. Y. 113.

I am unable to give to those cases that consequence. The Pennsylvania case was an action against a railroad company for damages for the death of a postal clerk, caused by a collision. A recovery was denied, but the question turned solely upon the construction of a statute of that State. It has no application here. But if it had, the decision is directly opposed to that of this court in cases also cited by the respondent, viz. : Norton v. Western R. Co., and Blair v. Erie R. Co., *To appear in 97 N. Y.

supra, in each of which a recovery was had on the ground that the defendant owed a duty to the person injured (in one case a postal clerk and in the other an express agent), and neglected to perform it. That principle, we think, the plaintiff may also successfully invoke, and find support in the other case, Putnam v. Broadway, etc., R. Co., supra cited by the respond

ent.

It was there held, in substance, that a railroad company was bound to exercise the utmost vigilance, not only in guarding its passengers against careless interference by others, but even against violence, and if in consequence of neglecting this duty he receives injury, which in view of all the circumstances might have been reasonably anticipated, it is liable. The defendant prevailed in that case on the ground that the mischief was one which it had no reason to expect, and so was under no obligation to guard against. But if it had been made to appear that he who made the assault was vicious and accustomed under similar circumstances to do hurt, and the defendant had been notified of the fact, a duty would, as the case also holds, have been imposed upon it either to remove him from the car, or inform its other passengers of their danger, and failing to do so, would be responsible for such harm as he occasioned. To the same effect is Muster v. C. M. & St. P. R. Co., 21 N. W. Rep. 223, Sup. Ct. of Wis. There the plaintiff was at work for the defendant at its depot, standing on a scaffold erected by it; the defendant's train, of which a mail car formed part, ran past, and a mail bag thrown from it by a postal agent struck the leg of the scaffold with such force that it fell and the plaintiff was injured. He failed in his action. Upon appeal the court in answer to the claim that the defendent was negligent in not informing the plaintiff of his peril said: "All the evidence on that subject is to the effect that the mail bag was usually discharged near the mail catcher, which was two hundred feet west of the depot, and there is no testimony whatever that it had ever before been thrown off at the depot," adding: "The company is not chargeable with notice that it was likely to be thrown off at the depot, and hence was not required to guard, by notice or otherwise, against au accident to the plaintiff resulting from its being thrown off there on the occasion in question." In such cases no doubt scienter is the gist of the action, and in those cited it was lacking. In the one before us, it was clearly established. The defendant constructed the postal car and owned it. It was occupied under defendant's permission for a certain use, and it may be conceded that there was nothing in the nature of that use to require the defendant to expect that the contents of the car would be violently cast upon the platform while the train was in motion, and before the passengers thereon could reach the cars. Had this accident therefore happened on the first passage of the car, the defendant might be excused, as in the case cited, on the ground that the mere act of the postal clerk in throwing off the mail bag at that place, without the previous knowledge of the defendant of his intention to do so, was not negligence on its part.

But the fact is quite otherwise. The practice which led to the accident was a familiar and daily one. It was proven by uncontradicted evidence that this method of discharging mail bags from the postal car, upon the platform provided for passengers, and while they were upon it and exposed to injury, had prevailed for a long time, under circumstances from which notice to the defendant might be fairly implied, and with the actual knowledge of the defendant's agents, in whose presence the act was frequently, if not daily performed, and so far as appears without the slightest objection on their part. They were therefore chargeable with notice that the mail bag was

likely to be thrown off in the same manner and under the same circumstances at any arrival of a postal car. By this knowledge the defendant was brought fairly within the rule which enjoins care, not only on the part of itself and its servants, but also like care iu preventing injury from the careless or wrongful act of any other person whom it permits to come upon its premi

ses.

The occupants of the postal car are no exception to this rule; they were not strangers or uninvited. They came under a contract voluntarily made by the defeudant, and which secured the carriage and delivery of the mails upon such conditions as it imposed or acceded to. Its police power extended over the persons employed in it, while they were on the defendant's track or on its stations, certainly not to interrupt them in the discharge of their official duties, but so far as practicable to prevent injury to those for whose safety it was bound to provide. So it was held in Stewart v. Brooklyn & Cross Town R., 90 N. Y. 588, applying the rule to violence committed by strangers and co-passengers in Flint v. Norwich & N. Y. Trans. Co., 34 Conn. 554, to violence from whatever source arising, and this although the aggressors were soldiers received upon the boat on compulsion. The doctrine of that case is approved and its reasoning followed in the case of Putnam, supra.

Nor was it necessary in order to charge the defendant with the duty of care and vigilance, that on some former occasion a like injury bad happened. The act was itself dangerous. There was under the circumstances of which the defendant had notice, a natural and probable connection between the act of throwing out a mail bag with its contents and the injury which actually happened. It could have been foreseen, and the defendant owed a duty to those who might probably be on the platform, either to prohibit the practice which made the place dangerous, or exclude the passenger until train time, or provide some other way for ingress to the cars, or at least give notice to him that he must take care and avoid the danger, or in some other way use reasonable caution to prevent damage from the danger, of which it knew or ought to have known. Whether such reasonable care was taken by notice, guarding the way or otherwise, must be determined as a matter of fact. So far as the case now discloses, the defendant failed to do either of these things. It seems to me therefore that the plaintiff's evidence tended to establish every proposition, which as set forth in his complaint, constituted a fair cause of action-damages occasioned by the omission of duty which the defendant owed to him, and that he was not himself in default. These were questions for the jury and should have been submitted to them. The plaintiff was therefore improperly nonsuited.

It follows that the judgment of the Special and General Terms should be reversed and a new trial granted, costs to abide the event.

All concur, except Rapallo and Finch, JJ., dissenting.

Judgments reversed.

United States, and that the practice, pleadings, and forms and modes of proceedings in such cases shall conform as near as may be to those of the courts of the States in which the courts sit, is applicable only where there is no rule on the same subject prescribed by act of Congress, and where the State rule is not in conflict with any such law.

The statute of New York, which permits a party to a suit to be examined by his adversary as a witness at any time previous to the trial in an action at law, is in conflict with the provisions of the Revised Statutes of the United States which 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."

The courts of the United States sitting in New York have no power therefore to compel a party to submit to such an examination, and no power io punish him for a refusal to do so.

Nor can the United States court enforce such an order made by a State court before the removal of the case into the Circuit Court of the United States.

Where a person is in custody, under an order of the Circuit Court, for contempt in refusing to answer under such an order, this court will release him by writ of habeas corpus on the ground that the order of imprisonment was without the jurisdiction of that court.

PET

ETITION for writs of habeas corpus and certiorari. The opinion states the facts.

MILLER, J. This is an application on the part of Clinton B. Fisk for a writ of habeas corpus, to be directed to the marshal of the Southern District of New York, in whose custody the petitioner is held under an order of the Circuit Court for that district.

The history of the case which resulted in this order, so far as it is necessary to the decision of the matter before us, may be briefly stated as follows:

Francis B. Fogg brought suit in the Supreme Court of the State of New York against Fisk to recover the sum of $63,250, on the allegation of false and fraudulent representations made by Fisk in the sale of certain mining stocks.

In the progress of the suit, and before the trial, the plaintiff obtained from the court the following order: "Ordered that the defendant, Clinton B. Fisk, be examined and his testimony and deposition taken as a party before trial, pursuant to sections 870, 871, 872. 873, etc., of the Code of Civil Procedure, and that for such purpose he personally be and attend before the undersigned, a justice of this court, at the chambers thereof, to be held in the new county court-house, in the said city of New York, on the 31st day of January, 1883, at 11 o'clock in the forenoon of that day." A motion to vacate this order was overruled and the judgment finally affirmed by the Court of Appeals.

Thereupon the defendant appeared before the court and submitted to a partial examination, answering some questions and objecting to others, until pending one of the adjournments of the examination, he procured an order removing the case to the Circuit Court of the United States.

In that court an order was made to continue the ex amination before a master, to whom the matter was referred. The defendant refusing to be sworn and declining to be examined, he was brought before the Circuit Court on an application for attachment for a contempt in refusing to obey the order.

Without disposing of this motion, the Circuit Court made another order, to wit:

"It is hereby ordered and adjudged that the motion to punish the said defendant for such contempt stand adjourned to the next motion day of this court, to wit, on the 28th day of March, 1884.

"It is further ordered that the defendant, Clinton

B. Fisk, be and he is hereby directed and required to attend personally on the 14th day of March, 1884, before the Honorable Addison Brown, one of the judges of this court, at a stated term thereof, at his chambers in the post office building, in said city of New York, at 11 o'clock in the forenoon of that day; then and there, and on such other days as may be designated, to be examined and his testimony and deposition taken and continued as a party before trial, pursuant to section 870, et seq., of the Code of Civil Procedure, and for the purposes mentioned in said order of January 12, 1883, and February 12, 1884, heretofore made in this

action.'

The defendant appeared before the court in pursuance of this order, and stating that he was advised by counsel that the court had no jurisdiction to require him to answer in this manner to the questious propounded to him by the counsel for plaintiff, he refused to do so.

For this, on further proceeding, he was held by the court to be in contempt, and fined five hundred dollars, and committed to the custody of the marshal until it was paid.

It is to be relieved of this imprisonment that he prays here the writ of habeas corpus.

The jurisdiction of this court is always challenged in cases of this general character, and often successfully. There can be no doubt of the proposition, that the exercise of the power of punishment for contempt of their orders, by courts of general jurisdiction, is not subject to review by writ of error, or appeal to this court. Nor is there, in the system of federal jurisprudence, any relief against such orders, when the court has authority to make them, except through the court making the order, or possibly by the exercise of the pardoning power.

This principle has been uniformly held to be necessary to the protection of the court from insults and oppressions while in the ordinary exercise of its duties, and to enable it to enforce its judgments, and orders necessary to the due administration of law, and the protection of the rights of suitors.

When however a court of the United States undertakes, by its process of contempt, to punish a man for refusing to comply with an order which that court had no authority to make the, order itself, being without jurisdiction, is void, and the order punishing for the contempt is equally void. It is well settled now in the jurisprudence of this court, that when the proceeding for contempt in such a case results in imprisonment, this court will by its writ of habeas corpus discharge the prisoner. It follows necessarily, that on a suggestion by the prisoner, that for the reason mentioned, the order under which he is held is void, this court will, in the language of the statute, make "inquiry into the cause of the restraint of liberty." Section 752, Rev. Stat.

That the case as made by the petitioner comes, for the purposes of this inquiry, within the jurisdiction of this court, under the principles above mentioned, is established by the analogous cases: Ex parte Rowland and others, 104 U. S. R. 164; Ex parte Lange, 18

Wall. 163.

But did the court transcend its jurisdiction in fining the petitioner for contempt? Or rather did it have the power to make the order requiring him to submit to the preliminary examination? For if it had that power it clearly could enforce obedience to the order by fine and imprisonment, if necessary. The record of the entire proceeding in this branch of the case, both in the State court and the Circuit Court, is before us, and we are thus enabled to form an intelligent opinion on the question presented.

The power of the court to continue the examination

of the defendant, after the removal of the case into the court of the United States, is asserted on two grounds:

1. That the order for his examination, having been made by the Supreme Court of New York, under its rightful jurisdiction, while the case was pending in it, is still a valid order, partially executed, which accompanies the case into the Circuit Court; and that in that court it cannot be reconsidered, but must be enforced.

2. That if this be not a sound proposition, the Circuit Court made an independent order of its own for the examination of the defendant, which order is justified by the principle that the Code of Civil Procedure of New York, under which both orders were made, is a part of the law governing the courts of the United States sitting within that State.

We will inquire into the latter proposition first, for the points to be considered in it lie at the foundation of the other also.

The general doctrine that remedies, whose foundations are statutes of the State, are binding upon the courts of the United States within its limits, is undoubted. This well-known rule of the Federal courts, founded on the act of 1789 (1 U. S. Stat. 92; Rev. Stat., § 721), that the laws of the several States, except when the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, was enlarged in 1872 by the provision found in section 914 of the revision. This enacts that "the practice, pleadings, and forms and modes of proceeding in civil cases, other than equity and admiralty causes in the Circuit and District 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 or District Courts are held, any thing in the rules of courts to the contrary notwithstanding."

In addition to this, it has been often decided in this court that in actions at law in the courts of the United States, the rules of evidence and the law of evidence generally of the States prevail in those courts.

The matter in question here occurred in the court below in regard to a common-law action. It was in regard to a method of procuring and using evidence, and it was a proceeding in a civil cause other than equity or admiralty.

We entertain no doubt of the decision of the Court of Appeals of New York, that it was a proceeding authorized by the statutes of New York, under which, in a New York court, defendant was bound to an

The act of 1872 evidently contemplates the same exception by requiring the courts to conform to State practice as near as may be. No doubt it would be implied, as to any act of Congress adopting State practice in general terms, that it should not be inconsistent with any express statute of the United States on the same subject.

There are numerous acts of Congress prescribing modes of procedure in the Circuit and District Courts of the United States at variance with laws of the States in which the courts are held. Among these are the modes of impauelling jurors, their qualifications, the number of challenges allowed to each party. Two chapters of the Revised Statutes, XVII and

XVIII, embracing sections 858 to 1042, inclusive, are devoted to the subjects of evidence and procedure alone.

The case before us is eminently one of evidence and procedure. The object of the orders is to procure evidence to be used on the trial of the case, and this object is effected by a proceeding peculiar to the courts of New York, resting aloue on a statute of that State. There can be no doubt that if the proceeding here authorized is in conflict with any law of the United States, it is of no force in the courts of the United States. We think it may be added further in the same direction, that if Congress has legislated on this subject and prescribed a definite rule for the government of its own courts, it is to that extent exclusive of any legislation of the State in the same matter.

A striking illustration of this effect of an act of Congress in prescribing rules of evidence is to be found in section 858 of the Revised Statutes originally enacted in an appropriation bill in 1864, and the amendment to it passed in 1865.

or

It now reads: "In the courts of the United States no witness shall be excluded in any action on account of color, or in any civil action because he is a party to or interested in the issue tried: Provided, that in actions by or against executors, administrators, guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward unless called to testify thereto by the opposite party, or required to testify thereto by the court."

This act of Congress when passed made competent witnesses in the courts of the United States many millions of colored persons who were not competent by the laws of the States in which they lived, and probably as many more persons as parties to suits, or interested in the issues to be tried, who were excluded by the laws of the States. It has never been doubted that this statute is valid in all the courts of the United States, not only as to the introduction of persous of color and parties to suits; but in the qualification made by the proviso where its language differs from provisions somewhat similar in State statutes, the act of Congress, critically construed, has always been held to govern the court. Monongahela Bank v. Jacobus, 109 U. S. 275; Potter v. Bank, 102 id. 163; Page v. Burnstine, id. 664; King v. Worthington, 104 id. 44.

Coming to consider whether Congress has enacted any laws bearing on the question before us, we find the following sections of the Revised Statutes, in chapter XVII, on evidence, which we here quote together:

Section 861. 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."

"Section 863. The testimony of any witness may be taken in any civil cause, pending in a District or Circuit Court, by deposition de bene esse, when the witness lives at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of the district in which the case is to be tried, and to a greater distance than one hundred miles from the place of trial, before the time of trial, or when he is ancient or infirm." The remainder of this section, and sections 864 and 865, are directory as to the officer before whom the deposition may be taken, the notice to the opposite party, and the manner of taking, testifying and returning the deposition to the court.

"Section 866. In any case where it is necessary, in order to prevent a failure or delay of justice, any of the courts of the United States may grant a dedimus potestatum to take depositions according to common. usage; and any Circuit Court, upon application to it

as a court of equity, may according to the usages of chancery direct depositions to be taken in perpetuam rei memoriam, if they relate to any matter that may be cognizable in any court of the United States."

Section 867 authorizes the courts of the United States, in their discretion, and according to the practice in the State courts, to admit evidence so taken; and sections 868, 869, and 870 prescribe the manner of taking such depositions, and of the use of the subpœna duces tecum, and how it may be obtained.

No one can examine these provisions for procuring testimony to be used in the courts of the United States and have any reasonable doubt, that so far as they apply, they were intended to provide a system to govern the practice in that respect in those courts. They are, in the first place, too complete, too far-reaching, aud too minute to admit of any other conclusion. But we have not only this inference from the character of the legislation, but it is enforced by the express language of the law in providing a defined mode of proof in those courts, and in specifying the only exceptions to that mode which shall be admitted.

This mode is "by oral testimony and examination of witnesses in open court, except as hereinafter provided."

Of course the mode of producing testimony under the New York Code, which was applied to petitioner, is not oral testimony and examination of a witness in open court, within the meaning of this act of Congress. This obviously means the production of the witness before the court at the time of the trial, and his oral examination then; and it does not mean proof by reading depositions, though those depositions may have been taken before a judge of the court, or even in open court, at some other time than during the trial. They would not, in such case, be oral testimony. The exceptions to this section, which all relate to depositions, also show that proof by deposition cannot be within the rule, but belongs exclusively to the exceptions.

We come now to inquire if the testimony sought to be obtained from petitioner by this mode comes within the exception referred to in section 861. These exceptions relate to cases where it is admissible to take

depositions de bene esse under section 863, or in perpetuam rei memoriam aud under a dedimus potestatum under section 866.

In the first of these, the circumstances which authorize depositions to be taken in advance for use on the trial are mentioned with great particularity. They all have relation to some conditions of the witness; to residence more than a hundred miles from the court, or bound on a sea voyage, or as going out of the United States or out of the district, or more than a hundred miles from the place of trial before the time of trial, or an ancient or infirm witness.

None of these things are suggested in regard to petitioner, nor were they thought of as a foundation of the order of the State court or of the Circuit Court. The statute of New York, under which both courts acted, makes no such requirements as a condition to the examination of the party. It is a right which, if the judge may possibly refuse to grant, he is in that matter governed by none of the conditions on which the deposition may be taken under the act of Congress.

Nor does the case come within the principle or pro. fess to be grounded on the power conferred by section 866, which is another exception to the rule established by section 861. It is not according to common usage to call a party in advance of the trial at law, and subject him to all the skill of opposing counsel to extract something which he may then use or not, as it suits