Page:Federal Reporter, 1st Series, Volume 3.djvu/20

 IN BB SHEPHARD. 13 �anlhority to corapel a person not a party to the suit to attend and bring with him property of this description for such a purpose bas been declared or contended for; nor bas it been shown that such a writ was ever before issued. Mr. Starkie speaks of the subpœna duces tecum as a writ wholly to eompel the production of instruments and documents. 3 Stark. on Evid. 172. In Arny \. Long, 9 East. 473, where the power to issue a subpœna duces tecum was called in question, the writ ia spoken of as used to eompel the production of "written testi- mony," "written evidence," "documents," "papers belonging to them individually," "books and papers," "specified papers and instruments." The writ now under consideration seems, therefore, to be a novelty, not agreeable to any usage of the law, and therefore not within the power conferred by the statute. �This conclusion is strengthened by reference to section 869, tJ. S. Rev. St., where provision is expressly made for a duces tecum to a vritness to be examined upon a commission, in pur- suance of section 868, and where the writ is expressly eon- fined to the production of "any paper, or writing, or written instrument, or book or other document." Inasmuch as it is evident that sections 868 and 869 wereintended to auth rize the procuring by means of a commission, when necessary; any evidence tnat might be procured upon a tHal in court; the limitation of these provisions to doeumentary evidence affords ground for the conclusion that the function of the writ of subpœna duces tecum is accurately described in section 869. �The provisions of the statute of this state, where the funb^ tion of the writ of subpœna is limited to requiring the wit- ness to bring with him "a book or paper," may also be ref erred to as showing the usage of the law in this respect. �The motion is denied. ����