ference of a court of equity in order to obtain a discovery, will be dismissed. Hungerford v. Sigerson, 20 How., 156; Burnett v. Butterworth, 11 How., 674.

Nuisance-what must be shown.-Where a party brings a bill in equity complaining of an injury for which he has a plain and adequate remedy at law, the bill will be dismissed; and in the federal courts such an objection goes to the jurisdiction, and the courts may dismiss, though the objection is not raised by the pleadings or suggested by the counsel. It was thus held in case of a bill for a private nuisance in which the nature of the injury was not set out so as to show that the plaintiff was without legal remedy. Parker v. Winnepeseogee Company, 2 Black, 545. See, also, Dade v. Irwin, 2 How., 383. If a plain defect of jurisdiction appears at the hearing the court will not make a decree. Thompson v. Railroad Companies, 6 Wall., 134.

The test of jurisdiction in equity.-The absence of a plain, speedy and adequate remedy at law affords the only test of equity jurisdiction, and the application of this principle to particular cases must depend upon the character of the cases as disclosed in the proceedings. Watson v. Southerland, 5 Wall., 74; Boyce v. Grundy, 3 Pet., 210.

SEC. 724. Power to order production of books and writings in actions at law.-In the trial of actions at law, the courts of the United States may, on motion and due notice thereof, require the parties to produce books or writings in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery. If a plaintiff fails to comply with such order, the court may, on motion, give the like judgment for the defendant as in cases of nonsuit; and if a defendant fails to comply with such order, the court may, on motion, give judgment against him by default.

24 Sept., 1789, c. 20, s. 15, v. 1, p. 82.

Production of books and papers-practice.-Under the provisions of this section, in order to obtain judgments for the defendant on failure of the plaintiff to produce books or papers, it is not enough for a defendant to give notice and then move for a judgment of nonsuit, but there must be a motion for an order to produce the books and papers. Thompson v. Selden, 20 How., 195; Bas v. Steele, 3 Wash., C. C., 381; Bank v. Kurtz, 2 Cr., C. C., 342; Maye v. Carbery, Id., 336.

The order nisi issues, as a matter of course. Lawrence v. The Ocean Ins. Co., 3 Wash., C. C., 381. As to proceedings for a discovery of documents in an action at law, see Jacques v. Collins, 2 Blatch., 23.

It is not necessary that the party applying for the order nisi should first produce proof of the pertinency of the evidence. A single suggestion is sufficient. Hylton v. Brown, 1 Wash., C. C., 298.

If one party desires the inspection of papers in the possession of another party, he must give him notice to produce them, and if they are not produced, he may give evidence of their contents, or may draw inference from their non-production favorable to himself.

If his purpose is to obtain a judgment by default, he is bound to give the opposite party notice that he shall move the court for an order upon him to produce the papers, or on failure to do so, to award a judgment or nonsuit, as the case may require. Bas v. Steele, 3 Wash., C. C., 381.

To entitle the defendant to nonsuit, he must first obtain an order of the court under a rule that they should be produced. But the order need not be absolute when moved for, but may be to show cause at the trial. Dunham v. Riley, 4 Wash., C. C., 126; Iasigi v. Brown, 1 Curtis, C. C., 401. If to a notice to produce certain letters relating to moneys received in a certain transaction, the party on oath answering says he has not a particular letter in his possession and after diligent search could find none such, it is sufficient to prevent offering secondary evidence of its contents. Vasse v. Mifflin, 4 Wash., C. C., 519.

SEO. 725. Power to impose oaths and punish contempts. The said courts shall have power to impose and administer all necessary oaths, and to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority: Provided, That such power to punish contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, witness, or other persons, to any lawful writ, process, order, rule, decree, or command of the said courts.

24 Sept., 1789, c. 20, s. 17, v. 1, p. 83; 2 Mar., 1831, c. 99, s. 1, v. 4, p. 487. Oaths imposed upon attorneys.--The act of January 24, 1865, prohibiting the admission to the bar of the Supreme Court, or to the bar of any circuit or district court, or court of claims, or to be heard by virtue of any previous admission, any attorney in said courts, until they had taken and subscribed an oath that they never voluntarily bore arms against the United States, etc., was held to be punishment for past conduct, and to partake of the nature of a bill of pains and penalties and subject to the constitutional inhibition against the passage of bills of attainder and also within the inhibition of the Constitution against ex post facto laws; and that an attorney and counselor at law admitted to practice in the

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federal courts, who had held office under confederate authority and received full pardon for all such offenses, could not be deprived of the right for refusing to take such oath, or be excluded by reason of that offense, from continuing in the enjoyment of the previously acquired right to appear as an attorney and counselor in the federal courts. Ex parte Garland, 4 Wall., 333. See, also, Ex parte Secomb, 19 How., 9; Ex parte Hayfrow, 7 Id., 127.

Disbarring an attorney for contempt.-The power of the federal courts to disbar an attorney for a contempt can only be exercised when there has been such conduct on his part as to show him to be an unfit member of the profession, and before disbarring him, he should have notice of the grounds of complaint against him and opportunity of explanation and defense. Ex parte Robinson, 19 Wall., 505. If disbarred wrongfully, mandamus is the proper remedy. Ex parte Bradley, 7 Wall., 364. See, also, Bradley v. Fisher, 13 Id., 354.

Where an uncontested order made by a register in bankruptcy for the bankrupt to produce certain books and papers relating to his business was disobeyed, and on proof thereof he was adjudged to have been guilty of contempt by the district court, and ordered to deliver up the books and papers, and in default thereof to be committed to jail, and on failing to do so he was arrested by the deputy marshal in pursuance of said order in New Hampshire, and committed to jail in Vermont, on habeas corpus sued out by the bankrupt, it was held that the order of the register was the order of the court, and when disobeyed it was proper to institute proceedings for contempt; that it was proper to direct the bankrupt to be committed until discharged by the order of the court; but that the arrest in New Hampshire and the imprisonment in Vermont were illegal, although the warrant for arrest was valid, on the ground that the deputy marshal was beyond his precincts at the time of the arrest. In the matter of Allen, 13 Blatch., 271. See, also, In re Gettleson, 1 Nat. Bank R., 604; In re Speyer, 6 Id., 255.

SEC. 726. New trials.-All of the said courts shall have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law.

24 Sept., 1789, c. 20, s. 17, v. 1, p. 83.

Motion for new trial-discretion.-The decision on a motion for a new trial is no ground for a writ of error, as it is addressed to the discretion of the court. Warner v. Norton, 20 How., 448; Marine Insurance Co. v. Hodgson, 6 Cr., 206; Barr v. Gratz, 4 Wh., 213; Blount v. Smith, 7 Id., 248. In case of torts, Parker v. Lewis, Hemp., 72; Rochell v. Philips, Id., 22. It will be granted without imposing costs where the court has misdirected a jury. United States v. Beaty, Id., 487; Clark v. Manufacturer's Ins. Co., 2 Woodb. & M., 472; Newcomb v. Wood, 97 U. S., 581; Nudd v. Burrows, 91 U. S., 426; Indianapolis, etc., R. Co. v. Horst, 93 Id., 291.

Criminal cases.—The federal courts have power to grant new trials in criminal cases, and as well in those that are capital as others. There is no constitutional inhibition to the exercise of this power. United States v. Keen, 1 McLean, 429; United States v. Fries, 3 Dall., 515; United States v. Macomb, 5 McLean, 286. But see United States v. Gilbert, 2 Sum., 37.

Rules of practice governing new trials.-As to necessary verification and oath to merits on application for a new trial, and how obtained where the motion is founded upon alleged newly discovered evidence, or the misconduct of the opposite party, or the jury in respect to the trial, see Vose v. Mayo, 3 Cliff., C. C., 484. In such cases the motion should be in writing supported by affidavits; and affidavits of witnesses, it is held, cannot be considered a compliance with the rule of the circuit court. Id.

As to presumptions and the proper mode of proceeding on a motion for a new trial of a defendant convicted of an offense (perjury), grounded on the allegation that the defendant was insane at the time of the trial. States v. Lancaster, 7 Biss., 440.

United

Where granted-practice.--A new trial will be granted where there is a mistake by the court in relying upon a dictum of the United States Supreme Court. Bowden v. Morris, 1 Hugh., 378; in a case of embezzlement, United States v. Polhamus, 13 Blatch., 200.

If the motion is based on the ground that the verdict is not sustained by the evidence and that the court erred in giving certain instructions and in refusing others, it must appear to the appellate court that exceptions were made to the rulings at the time they were made. Railroad Co. v. Twombly, 100 U. S., 78.

SEC. 727. Power to hold to security for the peace and good behavior.-The judges of the Supreme Court and of the circuit and district courts, the commissioners of the circuit courts, and the judges and other magistrates of the sev eral States who are or may be authorized by law to make arrests for offenses against the United States, shall have the like authority to hold to security of the peace, and for good behavior, in cases arising under the Constitution and laws of the United States, as may be lawfully exercised by any judge or justice of the peace of the respective States, in cases cognizable before them.

24 Sept., 1789, c. 20, s. 33, v. 1, p. 91; 2 Mar., 1793, c. 22, s. 4, v. 1, p. 334; 16 July, 1798, c. 83, v. 1, p. 609; 23 Aug., 1842, c. 188, s. 1, v. 5, p. 516; 15. May, 1862, c. 71, s. 8, v. 12, p. 387; 10 April, 1869, c. 22, s. 2, v. 16, p. 44.

A United States commissioner has, under the provisions of this section, as respects the taking of bail, the same power as a magistrate of a State and no greater. And when such a commissioner at request of a prisoner ad

journed the examination of a prisoner charged with a violation of the revenue laws for the period of nineteen days, and took bail for his appearance, when the magistrates of the State could only adjourn the examination of a prisoner ten days, it was held on a suit against the sureties on the bond that the bond was invalid and that the consent of the prisoner could not confer power to make the order, nor estop the sureties from setting up the invalidity of the recognizance. United States v. Horton's Sureties, 2 Dill., 94; United States v. Goldstein, 1 Dill., 413; United States v. Rundlett, 2 Curtis, C. C., 41; United States v. Case, 8 Blatch., 250.

SEC. 728. Power to enforce awards of foreign consuls, etc., in certain cases.-The district and circuit courts, and the commissioners of the circuit courts, shall have power to carry into effect, according to the true intent and meaning thereof, the award, or arbitration, or decree of any consul, viceconsul, or commercial agent of any foreign nation, made or rendered by virtue of authority conferred on him as such consul, vice-consul, or commercial agent, to sit as judge or arbitrator in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to his charge; application for the exercise of such power being first made to such court or commissioner by petition of such consul, vice-consul, or commercial agent. And said courts and commissioners may issue all proper remedial process, mesne and final, to carry into full effect such award, arbitration, or decree, and to enforce obedience thereto, by imprisonment in the jail or other place of confinement in the district in which the United States may lawfully imprison any person arrested under the authority of the United States, until such award, arbitration, or decree is complied with or the parties are otherwise discharged therefrom, by the consent in writing of such consul, vice-consul, or commercial agent, or his successor in office, or by the authority of the foreign government appointing such consul, vice-consul, or commercial agent: Provided, however, That the expenses of the said imprisonment, and maintenance of the prisoners, and the cost of the proceedings, shall be borne by such foreign government, or by its consul, vice-consul, or commercial agent requiring such imprisonment. The marshals of the United States shall