792
FEDERAL REPORTER,
vol. 44.
statutes of $e United States. The statutes in Michigan, Wisconsin, New Jersey,.Minnesota,and New York are held to confer the right. Burton V. Tuite, 78 Mich. 363,44 N..W. Rep. 282, 29 Amer. Law Reg. (N. S.) 49, and note, (overruling Webber v. Townley, 43 Mich. 534, 5 N. W. Rep. 971;) Hamon v. Eichstaedt, 69 Wis. 538, 35 N. W. Rep. 30j Lum v. Mc(Jarty, 39 N: J. Law, 287, (overruling Flremming v. Clerk of Hudson 00., 30 N. J. Law, 280j) State V. Rachac, 37 Minn. 372,35 N. W. Rep. 7; People v. Richards, 99 N. Y. 620, 1 N. E. Rep. 258; People v. ReiUy, 38 Hun. 429; People v. Oornell, 47 Barb. 329. Under the statutes in thel;!tates of Kansas, Al:ibama, Georgia, Colorado, and Maryland the right is denied or qualified. Oormack v. Wolcott, 37 Kan. 391, 15 Pac. Boylan v. Warren, 39 Kan. 301, 18 Pac. Rep. 174; Randolph v; State, Ala. 527, 2. South. Rep. 714; Buck v. OoUins, 51 Ga. 391; Bean v. People, 7 Colo. 200, 2 Pac. Rep. 909j .Belt v. Abstract 00., (Ct. Apfl. ¥d. 1890,) 20 Atl.Rep. 982, 30 Amer. Law Reg. 56, and note. n to say that the co1.1rt has been at some pains to ascertain the views entertained and the practice that prevailed in this matter in other ciro.uits and districts. Inquiries for this purpose extended to four circuits. be13ides the eighth, and the replies showed a substantial consen,S11.8 ofopinion and practice in harmony with the views. here expressed. The clerks of the several circuit courts in this.circuit will conform, in the lj.dxninistration of their offices, to the views expressed in this opinion. For the proper practice and fees where the clerk is required to make tbe search, seeJn Re Woodbury, 7 F.ed. Rep. 705, 17 Blatcbf. 517. This court has no jurisdiction over the clerk of tbe district court, and so much of the petition as prays for an order on that officer is dismissed. Iftbe petitioners desire an:y relief against the practice that prevails in the offiqe of the clerk of that court, tbey must apply to that court.
EILLERT
et ala
11. CRAPS
et al.
(01lrcuU Oourt, D. South Oarolina. Janua.r;y 22, 18111.) 1'ESTIMON1' TAkEN BY COMMISSION-PUBLICATION.
.
Wherfl comIllainant's testimony bas all been taken by oommission, the evidence will be published before defendant opens his case, with proper precautions that he does not· deprive complainant of any advantage he may enjoy by reason of defend·. ant's laohes, so that defendant may know whether or not complainant has made out his whOlE! case in cbief.
Open Commissions Under Equity Rule 69. ,E. W. Irughes 1 for defendants. · :po ..4.. llagood,'for complainants.
..
BLACK "'. EHRICH.
7:93
These are here. The complainant has refused to consent that they be opened by the clerk. The defendant, being about to open his case, now moves that they be opened and published. He bases his motion upon the ground that necessarily he does not know how complainant has sustained the allegations of his bill, and that he is unable to meet him. The pur. pose of taking testimony in a cause is to give the opportunity to each party to sustain his own position, and to meet the position of his adversary, if he can, by witnesses. Ordinarily the parties have the right to be present, and to hear the witnesses, alid, if thought best. to amine them upon the testimony they give. In exceptional cases, testimony, however, may be iaken by commission or deposition. The defendant has the right to compel the complainant to make out his whole casein chief, and complainant in our courts is confined, in his reply, to such testimony only as will reply to that of defendant. Thus the practice conforms to the rule which fairness and justice would prescribe, and the defendant is entitled to know the case of complainant, as made by the evidence. When, however, all the testimony of complainant is taken by commission, the most secret mode of procuring testimony, whose contents cannot be disclosed without perjury. the defendant is not only put at a great disadvantage, but he is deprived of a right. While the court, governed by these considerations, will grant this motion, care will be taken Dot to permit the defendant to avail himself of it, and deprive the complainant of any advantage he may now enjoy by reason of laches of defendant. It has been suggested that after an order of publication DO testimony can be taken, and Wood v. Mann, 2 Sum. 317, is cited. ltis not necessary to decide this point now. Non conatat that defendant will produce 'Yitnesses. if he does let the testimony be taken subject to tbisexception, if the exception be made. Let the commis· si<lllls takenin,:thiscause be opened, and published in the clerk's office.
BLACK
et al. 'I.l. EHRICH
{Cireu:£t Oourt, S. D. New York. January 81, 1891.}
Injunction"will not lie to restrain the publication and sale of a cycloplle<1ia of the same name. as one' pUblished by complainants, and of the same contents, .except lI.8 to certain copyrighted articles, when have not infringed any copyright, and use no meaDS to persuade the publio that their publication i& that of complainants.
PROPII:RTY-NnlES 011' BOOKS.
In Equity. On bill fo): injunction. Rawland Cox, for complainants. AugU8tus T. Garlitz, (Newtbn A. Partridge, of counsel,) fol' defendantB. Scot1apd,
WALLACE,J. The complainants, a publishing ann of Edingburgh, th.is., suit to the. who are doing busi-
