15 U. S. C. C., S. D. N. Y. Rule 110. 16 Appleton v. Ecaubert, 45 Fed. R. 281.

and it would seem, since this court must judge of the fact as well as the law, that all the testimony which was before the

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The Judiciary Act of 1789 (1 Stat. at L. 88, sect. 30) provided that the mode of proof by oral testimony and examination of witnesses in open court should be the same in all the courts of the United States, as well in the trial of causes in equity as of actions at common law. By sect. 19 of the same act, it was made the duty of the Circuit Court, in equity cases, to cause the facts on which they founded their decree fully to appear upon the record, either from the pleadings and decree, or a statement of the case agreed upon by the parties or their counsel, or, if they disagreed, by a stating of the case by the court. Subsequently, in 1802 (2 Stat. at L. 166, sect. 25), it was enacted that in all suits in equity the court might in its discretion, upon the request of either party, order the testimony of witnesses therein to be taken by depositions In 1803 (2 Stat. at L. 244, sect. 2) an appeal was given to this court in equity cases, and it was provided, that, upon the appeal, a transcript of the bill, answer, depositions, and all other proceedings in the cause, should be transmitted here. The case was to be heard in this court upon the proofs submitted below. In Conn. v. Penn., 5 Wheat. 424, decided in 1820, this court held that a decree founded in part upon parol testimony must be reversed, because that portion of the testimony which was oral had not been sent up For this reason, among others, the cause was sent back for further proceed ings according to equity. Chief-Justice Marshall, in delivering the opinion of the court, said (p. 426)

"Previous to this act (that of 1803), the facts were brought before this court by the statement of the judge. The depositions are substituted for that statement;

court. Yet the section (of the act of 1789) which directs that witnesses shall be examined in open court is not, in terms, repealed. The court has felt considerable doubt on this subject, but thinks it the safe course to require that all the testimony on which the judge founds his opinion should, in cases within the jurisdiction of this court, appear in the record.' Under the authority of the act of May 8, 1792 (1 Stat. at L. 276, sect. 2), this court at its February Term, 1822, adopted certain rules of practice for the courts of equity of the United States. 7 Wheat. Rules 25, 26, and 28 related to the taking of testimony by depositions, and the examination of witnesses before a master or examiner; but by Rule 28 it was expressly provided that nothing therein contained should prevent the examination of witnesses viva voce when produced in open court.' These rules continued in force until the January Term, 1842, when they were superseded by others then promulgated, of which 67, 68, 69, and 78 related to the mode of taking testimony, but made no reference to the examination of witnesses in open court, further than to provide, at the end of Rule 78, that nothing therein contained should 'prevent the examination of witnesses viva voce when produced in open court, if the court shall, in its discretion, deem it advisable.'

"Afterwards (in August, 1842) Congress authorized this court to prescribe and regulate the mode of taking and obtaining evidence in equity cases. 5 Stat at L. 518, § 6. While these rules remained in force substantially as originally adopted, and before any direct action of the court under the special authority of this act of Congress, the case of Sickles v. Gloucester Co., 3 Wall. Jr. 186, came before Mr.

Justice Grier on the circuit; and he there held that, notwithstanding the rules, witnesses might still be examined in open court. It was his opinion that the act of 1789 guaranteed to suitors the right to have their witnesses so examined if they desired it, that Rule 67 did not affect or annul the act of Congress or the policy established by it, and that a party had therefore the right to demand an examination of witnesses within the juris diction of the court ore tenus, according to the principles of the common law, either by having them produced in court or by having leave to cross-examine them face to face before the examiner.

"This case was decided in 1856; and at the December term, 1861, of this court, Rule 67 was amended so as to provide for the oral examination of witnesses before an examiner. The part of the rule as amended pertinent to the present inquiry is as follows

"Either party may give notice to the other that he desires the evidence to be adduced in the cause to be taken orally; and thereupon all the witnesses to be examined shall be examined before one of the examiners of the court, or before an examiner to be specially appointed by the court, the examiner to be furnished with a copy of the bill, and answer, if any, and such examination shall take place in the presence of the parties or their agents by their counsel or solicitors; and the witnesses shall be subject to cross-examination and re-examination, and which shall be conducted as near as may be in the mode now used in common-law courts. The depositions taken upon such oral examinations shall be taken down in writing by the examiner in the form of narrative, unless he determines the examination shall be by question and answer in special instances, and when completed shall be read over to the witness and signed by him in the presence of the parties or counsel, or such of them as may attend; provided, if the witnesses shall refuse to sign the said deposition, then the examiner shall sign the same; and the examiner

may upon all examinations state any special matters to the court as he shall think fit; and any question or questions which may be objected to shall be noted by the examiner upon the deposition, but he shall not have power to decide on the competency, materiality, or relevancy of the questions; and the court shall have power to deal with the costs of incompetent, immaterial, or irrelevant depositions, or parts of them, as may be just.'

"The act of 1789, in relation to the oral examination of witnesses in open court, was not expressly repealed until the adoption of the Revised Statutes, § 862 of which is as follows

"The mode of proof in causes of equity and of admiralty and maritime jurisdiction shall be according to the rules now or hereafter prescribed by the Supreme Court, except as herein specially provided.'

"Since the amendment of Rule 67, in 1861, there could never have been any difficulty in bringing a case here upon appeal, so as to save all exceptions as to the form or substance of the testimony, and still leave us in a condition to proceed to a final determination of the cause, whatever might be our rulings upon the exceptions. The examiner before whom the witnesses are orally examined is required to note exceptions; but he cannot decide upon their validity. He must take down all the examination in writing, and send it to the court with the objections noted. So, too, when depositions are taken according to the acts of Congress, or otherwise under the rules, exceptions to the testimony may be noted by the officer taking the deposition, but he is not permitted to decide upon them; and when the testimony as reduced to writing by the examiner, or the deposition, is filed in court, further exceptions may be there taken. Thus both the exceptions and the testimony objected to are all before the court below, and come here upon the appeal as part of the record and proceedings there. If we reverse the ruling of that court upon the exceptions,

we may still proceed to the hearing, because we have in our possession and can consider the rejected testimony. But under the practice adopted in this case, if the exceptions sustained below are overruled here, we must remand the cause in order that the proof may be taken. That was done in Conn. v. Penn. supra, which was decided before the promulgation of the rules. One of the objects of the rule, in its present form, was to prevent the necessity for any such practice.

While, therefore, we do not say that, even since the Revised Statutes, the circuit courts may not in their discretion, under the operation of the rules, permit the examination of witnesses orally in open court upon the hearing of cases in equity, we do say that now they are not by law required to do so; and that, if such practice is adopted in any case, the testimony presented in that form must be taken down or its substance stated in writing, and made part of the record, or it will be entirely disregarded here on an appeal. So, too, if testimony is objected to and ruled out, it must still be sent here with the record, subject to the objection, or the ruling will not be considered by us. A case will not be sent back to have the rejected testimony taken, even though we might on examination be of the opinion that the objection to it ought not to have been sustained. Ample provision having been made by the rules for taking the testimony and saving exceptions, parties, if they prefer to adopt some other mode of presenting their case, must be careful to see that it conforms in other respects to the established practice of the court.

"The act of 1872 (17 Stat. at L. 197; R. S. § 914) providing that the practice, pleadings, and forms and modes of proceeding, in civil causes in the circuit and district courts, shall conform, as near as may be, to the practice, &c., in the courts of the States, has no application to this case, because it is in equity, and equity and admiralty causes are in express terms excepted from the operation of that act." Appleton et al. v. Ecaubert, 45 Fed. R. 282, per Lacombe, J. :—

"Undoubtedly the method of taking testimony in equity cases in the Federal court is expensive, and frequently produces voluminous records, filled with a great deal of testimony which any court to which it may be presented will disregard; but that system, cumbrous though it be, seems to have been expressly devised for a specific end; namely, that the record should be made so full that the court of last resort may not be compelled to send an equity case back for a new hearing. A historical review of this practice will be found in the case cited supra, and need not be repeated here. It is sufficient to say that under it the examiner is required to note the exceptions, but cannot decide upon their validity, and must take down all the examination in writing, and send it to the court, with the objections noted; and when depositions in equity are taken according to the acts of Congress, or otherwise under the rules, the same method applies. When the testimony is reduced to writing by the examiner, or the deposition is filed in court, further exceptions may be there taken.

Thus,' say the Supreme Court, 'both the exceptions and the testimony objected to are all before the court below, and come here upon the appeal as part of the record and proceedings there. If we reverse the ruling of that court upon the exceptions, we may still proceed with the hearing, because we have in our possession the rejected testimony.' If the defendant's ob jections in this case were sustained, and his motion granted, and the Supreme Court should reach the conclusion that this court erred in such determination, it would have to remand the cause, in order that the suppressed deposition and the additional proof which the complainant desires to offer might be taken. That is what was done in Connecticut v. Pennsylvania, 5 Wheat. 424, which case was decided before the promulgation of the rules; but, as it is one of the objects of the sixty-seventh Rule, in its present form, to prevent the necessity for any such practice, defendant's motion must be denied."