The case came on to be heard on motion of counsel for plaintiff, to suppress the depositions of Oppenheimer et al., taken on behalf of defendant in Chicago, Ill. The grounds of the motion were as follows: 1st. The notice to take said depositions does not state the names of the witnesses whose depositions were to be taken thereunder. 2d. It does not state any reason for taking the deposition of any witness. 3d. The officer who took said deposition does not in his certificate state any reason for taking the deposition of any witness. 4th. The deposition of said Oppenheimer was not taken on the day named in said notice. 5th. It nowhere appears that said Oppenheimer was not, and is not, now, a resident of Cincinnati, or does not live within a hundred miles thereof.

Wilby & Wald, for the motion; E. G. Hewitt,

contra.

SWING, J.:

These depositions were taken in Chicago, more than one hundred miles from the place of trial, in conformity with the Ohio practice. The notice was that, on Monday, the 27th day of August, 1877, the defendant would take the depositions of sundry witnesses, etc. The deposition shows that on that day a witness, who knew nothing of the case, was called, and this was repeated for four days, until on the fifth day the material witness was called. There was no cross-examination, and no counsel for plaintiff was present when the examination was had. The question arising here involves the construction of §§ 863, 864, 865 and 914 of the Revised Statutes of the United States. It is admitted that the depositions are not taken in conformity with the requirements of the federal statutes on that subject, and are in conformity with the law of Ohio. If we are to be governed by §§ 863, 864 and 865, the depositions must be suppressed; if we are to be governed by § 914 alone, it is claimed the motion must be overruled.

Prior to the act of June 1st, 1872, the laws of Congress regulating the taking of depositions, §§ 863, 864 and 865, provided that the testimony of any witness might be taken in any civil cause depending 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. They also designated the officers before whom the depositions might be taken, They further provided, that reasonable notice must first be given in writing by the party, or his attorney, proposing to take such deposition, to the opposite party, or his attorney of record, as either may be nearest, which notice shall state the name of the witness and the time and place of the taking of his deposition. They provided also for the manner in which the witness should be sworn, and how his testimony should be reduced to writing. They further provided that every deposition taken under said provisions

should be retained by the magistrate taking the same, until he delivered it with his own hands into the court for which it was taken, or it should, together with a certificate of the reasons of taking it, and of the notice, if any, given to the adverse party, be by him sealed up and directed to said court, and remain under his seal until opened in

court.

Such were the express requirements by the acts of Congress, in regard to the taking of.depositions, when the act of June, 1872. § 914, Rev. Stats. U. S., was passed, which, it was claimed, modifies or repeals such provisions. The act of June, 1872, provides, "that the practice, pleadings and forms and modes of proceeding in civil causes, other than equity and admiralty causes in the circuit and district courts, shall conform as nearly as may be to the practice, pleadings and forms and modes of procedure, 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 rule of court to the contrary notwithstanding."

It is a settled rule of law, that a more ancient statute will not be repealed by a more modern one, unless the latter expressly negatives the former, or unless the provisions of the two statutes are manifestly repugnaut. It will be observed that this latter act does not in terms repeal the former acts upon this subject, nor does it in terms provide when, or the mode in which, a deposition shall be taken. It is only, therefore, by the construction which shall be given to the general terms, practice, pleading and forms and modes of proceeding" that we are to determine, whether, when and how a deposition may be taken, as provided for by this latter statute.

The Supreme Court of the United States, in Nudd et al. v. Burrows, 91, U. S. 426, held that these terms did not include the manner in which the judge, in the trial of a cause, should instruct the jury, or what papers should go to the jury, and the decision was reaffirmed in Railroad Co. v. Hurst, 93 U. S. 291. In the recent case of Beardsley v. Littell, 4 Cent. L. J. 270, c'ecided in the United States Circuit Court, Southern District of New York, by Judges Johnson and Blatchford, it is said by the court: "It may well be doubted whether there is anything in this act which applies to the subject of the evidence of witnesses, either as to its character, competency or the mode of taking it." And in our own administration of the law we have always held that it did not embrace the mode of examination of witnesses upon the stand, and have ruled in accordance with the doctrine of Philadelphia & T. R. R. Co. v. Stimpson, 14 Pet. 461, and Houghton v. Jones, 1 Wall. 702, that the cross-examination of a witness must be confined to the facts and circumstances stated in his direct examination, which is in direct opposition to the doctrine of the Supreme Court of this State, as announced in Legg v. Drake, 1 O. S. 286.

But suppose it be conceded that the provisions of the act of June 1st, 1872, by any construction, could be made to embrace the taking of depositions,

and that by implication it repealed the former laws upon that question. Yet, after the passage of this act, Congress, in 1873, revised and re-enacted the laws of the United States, and in § 5996 of the revised statutes it is provided what acts shall be in force on and after December 1st, 1873. This section provides, in terms, that all prior acts," any portion of which is embraced in any section of said revision, are hereby repealed, and the section applicable thereto shall be in force in lieu thereof." Section 5595, says: "The foregoing seventy-three titles embrace the Statutes of the United States, general and permanent in their nature, in force on the first day of December, 1873."

Sections S63, 864 and 865, then, are still in force; they are re-enacted by this act, if they had been previously repealed; and we have §§ 863, 864, 865 and 914, all in force on the same subject, if § 914 applies to the manner of taking testimony. We have a statute which does not state, in terms, that all depositions shall be taken according to the state law, but which conforms the pleading, practice, and modes and forms of proceeding to that of the state; and another statute prescribing, in terms, the mode of taking depositions. Now, if § 914, standing alone, would apply to that, yet it must be construed as if §§ 863, 864, and 865 followed immediately after it, and it read, "except that depositions shall be taken in the manner following."

If this be not so, two provisions of law, enacted at the same time, one, the former act of Congress re-enacted, providing specifically and definitely the mode of taking depositions, the other, the state law upon the subject, entirely different in its provisions, and which it is claimed by general terms, is made the law of the United States. Under such circumstances, we think the question clearly within the reason of the rule announced by Justice Bradley, in Connecticut Mutual Life Insurance Co. v. Shaeffer. 94 U. S. 457, that "the laws of the state are only to be regarded as rules of decision in the courts of the United States where the constitution, treaties, or statutes of the United States have not otherwise provided. When the latter speak, they are controlling; that is to say, on all subjects on which it is competent for them to speak. There can be no doubt that it is competent for Congress to declare the rules of evidence which shall prevail in the Courts of the United States, not affecting rights of property, and where Congress has declared the rule, the state law is silent.”

It is hardly necessary for me to refer to authorities upon the question as to the necessity of a strict conformity with the provisions of the statute in the taking of depositions; the reports are full of them. The latest utterance of the supreme court recognizing it is in the case of Shutte v. Thompson, 15 Wall. 159, though in that case it was held, and I think very properly, that the defendant had by his acts waived his right of exception.

The first reason assigned for suppressing the depositions in this case is, that the notice does not state the names of the witnesses whose depositions were to be taken, as required by the statute. But it was presented to the plaintiff's attorneys, and

they indorsed their acceptance on it, and by so doing, I think, gave the opposite party the right to rely on the sufficiency of the notice, and this exception is waived. The second ground is, that the notice assigns no reason for taking the deposition. That is not required by the statute; so there is no foundation for their objection. Fourth, the deposition was not taken on the day named in the notice, and fifth, it nowhere appears that the witness was not, and is not now a resident of Cincinnati, etc. It is not necessary that it should appear in the deposition or the certificate that the party is not now a resident of Cincinnati; that might be made to appear on the trial of the cause. The deposition was not taken on the day named in the notice, and witnesses who testified simply that they knew nothing of the case were examined for four days to keep the notice alive until the real witness should appear. I have had occasion to remark before, that that was a practice not to be encouraged, but it is a general practice with the profession, and it is not for that alone that this deposition should be suppressed. The third ground of the motion is, that the officer who took the deposition does not in his certificate assign any reason for taking it, and that, I think, is fatal to the deposition. If the party had been present, and had cross-examined the witnesses, as in the case in 15th Wallace, and had been present at the time the certificate was made, it would have been within his power to suggest any change or alteration in the certificate; and if he had failed to do so, I should have held that, under that case, he had waived all his right to objections and exceptions. But the party was not present, and he was not really bound to attend four or five days continuously, while witnesses were being called who knew nothing of the case, and he had no knowledge as to who the witness was whose deposition was really sought. I think, therefore, that this deposition must be suppressed. I have been referred to rule eight of this court, passed in 1855, which provides: "It having been the usage of this court to receive depositions taken on notice under the statute of the state, such usage is not abrogated by the rules adopted by this court." It has been the practice, since I have been on the bench, to receive depositions taken on notice under the statute of the state, and such will continue to be the usage of this court. If the party accept such a notice as this without objections, attend the taking of the depositions and crossexamine the witness and make no objections to the form of certificate at the time, he will be held to have waived his right of objection, and the depositions will be received.

SEVERAL prominent lawyers have died during the past week, viz.: Chief Justice Heaton of the Appellate Court of Illinois; Professor Samuel Tyler, of the law department of the Columbian University, Washington, D. C., author of a biography of Chief Justice Taney, a treatise on Partnership, Stephen on Pleading, and Mitford & Tyler's Pleading and Practice in Equity, and George W. Rawson, one of the Justices of the Supreme Court of New York.

1. STATUTE CONFERRING POWER TO SELL REAL ESTATE OF WARD UPON ONE NOT THE STATUTORY GUARDIAN, UNCONSTITUTIONAL.-The legislature, as parens patriæ, has power, by special act, in a case not provided by general law, to authorize a guardian to sell the real estate of his ward. But if a minor has a guardian, the legislature can not, by a special act, authorize a sale of the minor's land to be made by a person not his guardian, and who has no interest in the property.

2. A STATUTORY GUARDIAN has power coupled with an interest, and not a bare authority.

3. THE LEGISLATURE MAY, on the application of a person standing in the position of a trustee, and for a purpose apparently for the interest of a cestui que trust, authorize a sale of the property of the latter.

This action was brought to recover possession of real estate in the City of San Francisco. The defendants claimed under a sale made by Priscilla H. Denham, by virtue of an act of the legislature. This act was approved in April, 1857. It declared that

it shall be, and it is hereby made lawful for Priscilla II. Denham to sell, either at public or private sale, the whole, or any part or portion of the land or lots in the City of San Francisco (here follows a description of the property) said lots being the property of her minor children, Seth H. Lincoln, Granville H. Lincoln and Geo. S. Lincoln." The act further provided that said Priscilla should retain the proceeds of the sales free from the control of her husband, and apply them to the maintenance and education of her children, and render accounts to the probate court of San Francisco; that any conveyance executed by her should vest the title of the minors in the grantees; provided that no sale should be made until satisfactory bonds had been filed, and no conveyance should be valid unless the sale should first be confirmed by the probate court. Stat. 1857, p. 324. Said Priscilla was not at any time the guardian of the minors. The act of the legislature seems to have been complied with in all respects. The only question was whether the action of the legislature could be sustained.

Geo. F. Baker, for appellants; W. H. Patterson, for respondents.

PER CURIAM.

In Brenham v. Davidson, 51 Cal. 352, the statute which was under review in that case conferred the power of sale on the guardian of the minor, and the sale was to be approved by the probate court. The proceeds of the sale were to be reinvested for the benefit of the minor; and, moreover, no sale was to be made unless the mother of the minor, who held an undivided interest in the

property, united in the sale and conveyance. Under these circumstances we held that the case was one not provided for by the general law regulating the sale of the estates of minors, and that, in passing the statute, the legislature did not attempt to exercise judicial powers; but that, as parens patria, it has the power by special act, in a case not provided for by the general law, to authorize the real estate of a minor to be converted into money by his guardian, if the probate court approves the sale. But, in the case at bar, the minors had a duly qualified and acting statutory guardian at the time of the passage of the special act, and the general law provided an appropriate method by which the probate court could order a sale of the real estate of the minors by the guardian, if a sale was necesssary for their education and support. The special act conferred the power of sale, not upon the guardian, but upon the mother of the minors, who was not their guardian and had no interest in the property. Nor were any conditions imposed upon her, except that she should first execute a bond, to be approved by the probate judge, conditioned that the proceeds of the sale should be appropriated to the support and education of the minors, and that the sale should not be valid unless confirmed by the probate court previous to the execution of the deed.

In treating of the rights and powers of statutory guardians of the estates of minors, Mr. Schouler, in his treatise on Domestic Relations, page 471, says: "The recognized principle is, that such guardians have an authority coupled with an interest, not a bare authority;" and such we understand to be the well-settled rule. The statute under consideration attempts to take the estate of the minors out of the hands of their guardian, and to withdraw it from the control of the probate court, which, under the general law, had ample authority to order it to be sold and the proceeds to be applied to the support and education of the minors. It wholly ignores the rights and powers of the guardian, who had an authority coupled with an interest, withdraws the estate from the jurisdiction and control of the probate court, which that court might rightfully exercise under the general law, and attempts to substitute another person for the guardian, with authority to dispose of the estate absolutely, on no other conditions than those already mentioned. No adjudicated case has been called to our attention in which the exercise of such a power, by the legislature, has been upheld. In his work on Constitutional Limitations, at page 98, Judge Cooley, in discussing legislation of this character, says: "The rule upon this subject, as we deduce it from the authorities, seems to be this: If the party standing in the position of trustee applies for permission to make the sale, for a purpose apparently for the interest of the cestui que trust, and there are no adverse interests to be considered and adjudicated, the case is not one which requires judicial action; but it is optional with the legislature to grant the writ by statute, or to refer the case to the courts for consideration, according as the one course or the other, on considerations of policy, may seem

desirable." But, in the present case, it does not appear that the application was made by a party "standing in the position of trustee," and there were "adverse interests to be considered and adjudicated," to-wit: those of the guardian.

Upon the face of the act there is nothing to show that the legislature was informed that a general guardian of the estates of these infants had actually been appointed. It is fairly to be presumed that they were ignorant of that fact. At all events, in view of the fact now found by the court below, the act can not be permitted to operate, since, under the circumstances, it would be judicial and not legislative in its character, and for that reason unconstitutional,

Judgment and order reversed and cause remanded for a new trial.

NOTE.-Legislative sales may be divided into three classes, viz: 1st, those made by administrators; 2d, those made by guardians; and 3d, those made by persons who are neither administrators nor guardians, and whose sole authority is derived from the special act purporting to authorize the sale. The Supreme Court of California has now given its opinion of each class. The first class was overthrown by Brenham v. Story, 39 Cal. 185; the second class was sustained in Brenham v. Davidson, 51 Cal. 352; the third class is declared to be invalid in the case now under consideration.

The cases of the third class may be sub-divided into, 1st, those where the minor, or other person whose property is to be sold, has no guardian to take care of his interests; 2d, those where, notwithstanding the existence and competency of a guardian, the legislature undertakes to authorize his duties to be performed by some other person. The case of which we are now writing belongs to the last sub-division.

The opinion of the court is so destitute of clearness and precision that we are unable to determine the ground or grounds upon which the court desired its judgment to rest. The court first hints that the act is objectionable, in this, that it undertakes to withdraw a case from the operation of a pre-existing, adequate, general statute. The opinion next declares that the guardian of the minors had a power coupled with an interest, and denounces the act for attempting to take the estate from the control of such guardian and of the probate court. It next seems to indorse the views of Judge Cooley, that a special act of the legislature authorizing the sale of the property of persons under disability, must be passed at the instance of some person standing in the position of a trustee; and it closes with an intimation that the legislature of California was probably not sufficiently cognizant of the facts of the case for which it had attempted specially to provide.

The first objection hinted at by the court, while it would undoubtedly be fatal in many of the states, could hardly be so in California, where special legislation has generally been sustained. Smith v. Judge of 12th Dist. Court, 17 Cal. 547; People v. C. P. R. R. Co., 43 Cal. 401. With the exception of Mr. Schouler, we know of no authority to support the court in the assumption that a guardian appointed by the probate court, as in California, has a power coupled with an interest. He is not a trustee. He is but an officer of the court; a mere agent appointed to protect the interests of his ward. Fox v, Minor, 32 Cal. 116; Manson v. Felton, 13 Pick. 211; King v. Cutts, 24 Wis. 626; Bradley v. Amilon, 10 Paige, 239; Devore v. Pitman, 3 Mo. 187; Lane v. Schermerhorn, 1 Hill, 98; Petrie v. Shoemaker, 24 Wend. 85. So far as our investigations have extended, no court, in determining the constitutionality of special legislation, has ever taken evidence

to show at whose request the special statute was enacted. If, in each case, the power of the legislature is dependent on the invocation of its exercise having proceeded from some person "standing in the position of trustee," then testimony ought in each instance to be produced to show by whom the statute under consideration was solicited. We are entirely unable to assent to those decisions (and they are numerous) which affirm the power of the legislature to authorize the sale of the property of any person, without his consent, and without the aid of any judicial inquiry to determine the necessity and expediency of the sale. But if such a power be conceded, then we think that the legislature is entitled to determine for itself, 1st, at whose instance it will act, and 2nd, to whom it will entrust the power of sale, which it thinks best to grant. Rice v. Parkman, 16 Mass. 329; Shehan's Heirs v. Barnetts, 6 Monr, 593; Clarke v. VanSurlay, 15 Wend. 436; Leggett v. Hunter, 19 N. Y. 445; Boon v. Bowers, 30 Miss. 246: Watkins v. Holman, 16 Pet. 25; Holman v. Bank of Norfolk, 12 Ala. 369.

The court, in the case under consideration, also states, at the close of its opinion, that "in view of the facts now found by the court below, the act can not be permitted to operate, since, under the circumstances, it would be judicial, and not legislative in its character." But, on examining the findings, we find nothing peculiar about the facts detailed in them, except that, at the date of the sale, a considerable sum of money belonging to the minors was in the hands of their guardian. But if, in any case, the legislature has the power to determine the necessity or advisability of a sale, it must unavoidably incur the risk of reaching an erroneous conclusion. And certainly, if the existence of a power be conceded, the acts done by virtue of that power are valid, though they should not prove to be beneficial. The power, therefore, ought either to be wholly denied, or universally sustained. Whenever a legislature, by special act, authorizes a sale of the property of any person, it must necessarily have determined either, 1st, that there are existing obligations, for the purpose of discharging which the property ought to be converted into money; or, 2nd, that the interests of such person will be enhanced by such conversion. In either case, the question determined is a proper one for the judiciary, and its decision elsewhere ought not to be tolerated. A. C. F.

TESTIMONY OF EXPERTS.

EX PARTE DEMENT. Supreme Court of Alabama.

Hon. R. C. BRICKELL, Chief Justice.

66

A. R. MANNING, Associate Justices. 66 G. W. STONE,

A PHYSICIAN, like any other person, may be called to testify as an expert in a judicial investigation, whether it be of a civil or criminal nature, without being paid for his testimony as for a professional opinion; and upon refusal to testify, is punishable as for a contempt.

Application for certiorari, etc., showing the following state of facts: One Kit Barnard was on trial in the Circuit Court of Madison, on a charge of murder. Dr. J. J. Dement, the petitioner, was introduced as a witness for the state, the solicitor stating that he desired to examine him as an expert. After testifying that he was a physician, and had seen the deceased after he had received the wound which the prosecution asserted had produced death, he was asked to state the nature

and character of the wound received, and its probable effect. This Dr. Dement declined to do, upon the ground that "he had not been remunerated for his professional opinion, nor had compensation for professional opinion,been promised or secured.” The court informed the witness that it was his duty to answer, and upon his declining to do so, imposed a fine of five dollars for contempt of court. Afterwards the petitioner moved to have the fine set aside, on the ground that it was illegal, the court not having power to compel the petitioner to testify as a professional expert until compensation for his professional opinion was first paid for or secured.

The court overruled this motion, and judgment for the fine was entered accordingly. This judgment entry recites the facts constituting the contempt as above stated, and the petitioner also reserved a bill of exceptions.

Brandon & Jones, for petitioner: There is quite a difference betweeen compelling a physician to testify to a fact which he has witnessed, and forcing him to appear merely to give the results of his peculiar skill and experience-or, in other words, under guise of calling him as an expert, to compel him to give professional opinions, without being paid for them as such. To hold otherwise, subjects the professional man to unjust burdens, and makes improper discriminations against him. When a physician appears merely to testify to what he has seen or knows individually, he does only what any other citizen may be compelled to do; but when he has no actual knowledge of any fact in the case, and is nevertheless forced to testify without being paid as for a professional opinion, his skill and knowledge, which are his private property, are taken from him without compensation. 1 Sprague, 276; Elwell's Med. Jur., 592-3; Ordronaux Med. Jur., § 113; 3 Indiana, 497; 1 Brod. & Bing, 515; 5 M. & S. 156; 9 Cal. 178; Redfield on Wills, ch. 4, § 15.

MANNING, J., delivered the opinion of the court: The question presented in this cause is whether a physician is punishable, as for a contempt, for refusing to testify as an expert, without being paid for his testimony as for a professional opinion.

In "Best's Principles of the Law of Evidence,” a philosophic English treatise (the sixth London edition of which was issued last year, and has been recently published in this country) it is said: "The law allows no excuse for withholding evidence which is relevant to the matters in question before its tribunals, and is not protected from disclosure by some principle of legal policy. A person, therefore, who, without just cause, absents himself from a trial at which he has been duly summoned as a witness, or a witness who refuses to give evidence, or to answer questions which the court rules proper to be answered, is liable to punishment for contempt. An exception exists in the case of the sovereign, against whom, of course, no compulsory process of any kind can be used." In a note to this paragraph, referring to a passage in a work of Jeremy Bentham, Mr. Best says: The following case has been put in illustration of the universality of this rule: 'Were the Prince of

Wales, the Archbishop of Canterbury and the Lord High Chancellor to be passing in the same coach, while a chimney-sweeper and a barrow-woman were in dispute about a half-penny worth of apples, and the chimney-sweeper and the barrowwoman were to think proper to call upon them for their evidence, could they refuse it? No! most certainly not." " Nothing is said in this work in relation to the exemption of physicians or other men of science.

In Collins v. Godefroy, 1 B. & Ad. 950, in the Court of King's Bench, England, the plaintiff, an attorney, having attended six days on subpœna as a witness for defendant in a civil cause, to testify in respect to negligence and unskillfulness in the conduct of an action by another attorney, and not being called to testify, sued for six guineas as his regular fees for attendance. There was some evidence also of a consent to pay this sum. The counsel for Collins, the attorney, insisted that this was different from the case of an indictment for felony or a misdemeanor, in the prosecution of which the public may have an interest, and that in such a case it might be the duty of every person, duly called upon, to give his evidence. "But," he said, "a party who attends a court of justice to give his evidence in a civil cause, does it not in discharge of a public duty, but to confer a benefit on an individual; and if he sustains a loss thereby, as every professional man must, he ought to have a reasonable compensation for that loss." He referred to several prior cases and to the practice, as supporting his proposition. Lord Tenderden, C. J., delivering, after advisement, the opinion of the whole court, said: "If it be a duty imposed by law, upon a party regularly subpoenaed, to attend from time to time to give his evidence, then a promise to give him any remuneration for loss of time incurred in such attendance is a promise without consideration. We think such a duty is imposed by law; and * we are all of opinion that a party can not maintain an action for compensation for loss of time in attending a trial as a witness. We are aware of the practice which prevails in certain cases, of allowing as costs, between party and party, so much per day for the attendance of professional men, but that practice can not alter the law. What the effect of our decision may be is not for our consideration." This deliberate and unanimous decision of the High Court of King's Bench, adverse to the claim, was made in 1831.

*

*

In the Court of Common Pleas, in the same year, Park, J., in respect to a similar question, said: "In Moor v. Adam it was stated, that upon process in this country, allowance for time is made only to medical men or attorneys, a rule which appears to be hard and partial; for time to a poor man is of as much importance as to an attorney." And Tindal, C. J., said: "If that rule were to undergo revision, I can not say it would stand the test of examination. There is no reason for assuming that the time of medical men and attorneys is more valuable than that of others whose livelihood depends on their own exertions." Lonergan v. Royal Exchange Assurance, 7 Bingh. 731.