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U. S. C., Title 40:

§ 238 (National Archives; seal; reproduction of archives; fee; admissibility in evidence of reproductions)

270c (Bonds of contractors for public works; right of person furnishing labor or material to copy of bond)

U. S. C., Title 43:

§§ 57-59 (Copies of land surveys, etc., in certain states and districts admissible as evidence)

83 (General Land Office registers and receivers; transcripts of records as evidence)

U. S. C., Title 46:

§ 823 (Records of Maritime Commission; copies; publication of reports; evidence)

U. S. C., Title 47:

§ 154 (m) (Federal Communications Commission; copies of reports and decisions as evidence)

§ 412 (Documents filed with Federal Communications Commission as public records; prima facie evidence; confidential records)

U. S. C., Title 49:

§ 14 (3)

(Interstate Commerce Commission reports and decisions; printing and distribution of copies)

§ 16 (13) (Copies of schedules, tariffs, etc. filed with Interstate Commerce Commission as evidence)

§ 19a (i) Valuation of property of carriers by Interstate Commerce Commission; final published valuations as evidence)

Rule 45. Subpoena.

This rule applies to subpoenas ad testificandum and duces tecum issued by the district courts for attendance at a hearing or a trial, or to take depositions. It does not apply to the enforcement of subpoenas issued by administrative officers and commissions pursuant to statutory authority. The enforcement of such subpoenas by the district courts is

regulated by appropriate statutes. Many of these statutes do not place any territorial limits on the validity of subpoenas so issued, but provide that they may be served anywhere within the United States. Among such statutes are the following:

U. S. C., Title 7, §§ 222 and 511n (Secretary of Agriculture)

U. S. C., Title 15, § 49 (Federal Trade Commission)
U. S. C., Title 15, §§ 77v (b), 78u (c), 79r (d) (Securities
and Exchange Commission)

U. S. C., Title 16, §§ 797 (g) and 825f (Federal Power
Commission)

U. S. C., Title 19, § 1333 (b) (Tariff Commission)

U. S. C., Title 22, §§ 268, 270d and 270e (International
Commissions, etc.)

U.S. C., Title 26, §§ 614, 619 (b) (Board of Tax Appeals)
U. S. C., Title 26, § 1523 (a) (Internal Revenue Officers)
U. S. C., Title 29, § 161 (Labor Relations Board)
U. S. C., Title 38, § 506 (Secretary of War)

U. S. C., Title 35, §§ 54-56 (Patent Office proceedings)
U. S. C., Tile 38, § 133 (Veterans' Administration)
U. S. C., Title 41, § 39 (Secretary of Labor)

U. S. C., Title 45, § 157 Third. (h) (Board of Arbitration
under Railway Labor Act)

U. S. C., Title 45, § 222 (b) (Investigation Commission
under Railroad Retirement Act of 1935)

U. S. C., Title 46, § 1124 (b) (Maritime Commission)
U. S. C., Title 47, § 409 (c) and (d) (Federal Communi-
cations Commission)

U. S. C., Title 49, § 12 (2) and (3) (Interstate Commerce
Commission)

U. S. C., Title 49, § 173a (Secretary of Commerce) Note to Subdivisions (a) and (b). These simplify the form of subpoena as provided in U. S. C., Title 28, § 655 (Witnesses; subpoena; form; attendance under); and broaden U. S. C., Title 28, § 636 (Production of books and writings) to include all actions, and to extend to any person. With the provision for relief from an oppressive or unreasonable subpoena duces tecum, compare N. Y. C. P. A. (1937) § 411.

Note to Subdivision (c). This provides for the simple and convenient method of service permitted under many state

codes; e. g., N. Y. C. P. A. (1937) §§ 220, 404, J. Ct. Act, § 191; 3 Wash. Rev. Stat. Ann. (Remington, 1932) § 1218. Compare Equity Rule 15 (Process, By Whom Served).

For statutes governing fees and mileage of witnesses see: U. S. C., Title 28:

§ 600a (Per diem; mileage)

§ 600c (Amount per diem and mileage for wit

§ 600d

§ 601

§ 602

nesses; subsistence)

(Fees and mileage in certain states)

(Witnesses' fees; enumeration)

(Fees and mileage of jurors and witnesses) (No officer of court to have witness fees)

§ 603 Note to Subdivision (d). The method provided in paragraph (1) for the authorization of the issuance of subpoenas has been employed in some districts. See Henning v. Boyle, 112 Fed. 397 (S. D. N. Y., 1901). The requirement of an order for the issuance of a subpoena duces tecum is in accordance with U. S. C., Title 28, § 647 (Deposition under dedimus potestatem; subpoena duces tecum). The provisions of paragraph (2) are in accordance with common practice. See U. S. C., Title 28, § 648 (Deposition under dedimus potestatem; witnesses, when required to attend); N. Y. C. P. A. (1937) § 300; 1 N. J. Rev. Stat. (1937) 2:27–174.

Note to Subdivision (e). The first paragraph continues the substance of U. S. C., Title 28, § 654 (Witnesses; subpoenas; may run into another district). Compare U. S. C., Title 11, § 69 (Referees in bankruptcy; contempts before) (production of books and writings) which is not affected by this rule. For examples of statutes which allow the court, upon proper application and cause shown, to authorize the clerk of the court to issue a subpoena for a witness who lives in another district and at a greater distance than 100 miles from the place of the hearing or trial, see:

U. S. C., Title 15:

§ 23 (Suits by United States; subpoenas for witnesses) (under antitrust laws).

U. S. C., Title 38:

§ 445 (Actions on claims; jurisdiction; parties; procedure; limitation; witnesses; definitions) (Veterans' insurance contracts).

The second paragraph continues the present procedure applicable to certain witnesses who are in foreign countries. See U. S. C., Title 28, §§ 711 (Letters rogatory to take testimony of witness, addressed to court of foreign country; failure of witness to appear; subpoena) and 713 (Service of subpoena on witness in foreign country).

Note to Subdivision (f). Compare Equity Rule 52 (Attendance of Witnesses Before Commissioner, Master, or Examiner).

Rule 46. Exceptions Unnecessary.

Abolition of formal exceptions is often provided by statute. See Ill. Rev. Stat. (1937) ch. 110, § 204; Neb. Comp. Stat. (1929) § 20-1139; N. M. Stat. Ann. (Courtright, 1929) § 105-830; 2 N. D. Comp. Laws Ann. (1913) § 7653; Ohio Code Ann. (Throckmorton, 1936) § 11560; 1 S. D. Comp. Laws (1929) § 2542; Utah Rev. Stat. Ann. (1933) §§ 104-39-2, 104-24-18; Va. Rules of Court, Rule 22, 163 Va. v, XII (1935); Wis. Stat. (1935) § 270.39. Compare N. Y. C. P. A. (1937) §§ 583, 445, and 446, all as amended by L. 1936, ch. 915. Rule 51 deals with objections to the court's instructions to the jury.

U. S. C., Title 28, §§ 776 (Bill of exceptions; authentication; signing of by judge) and 875 (Review of findings in cases tried without a jury) are superseded in so far as they provide for formal exceptions, and a bill of exceptions.

Rule 47. Jurors.

Note to Subdivision (a). This permits a practice found very useful by federal trial judges. For an example of a state practice in which the examination by the court is supplemented by further inquiry by counsel, see Rule 27 of the Code of Rules for the District Courts of Minnesota, 186 Minn. XXXIII (1932), 3 Minn. Stat. (Mason, supp. 1936) Appendix 4, p. 1062.

Note to Subdivision (b). The provision for an alternate juror is one often found in modern state codes. See N. C. Code (1935) § 2330 (a); Ohio Gen. Code Ann. (Page, Supp. 1926-1935) § 11419-47; Pa. Stat. Ann. (Purdon, supp. 1936) Title 17, § 1153; compare U. S. C., Title 28, § 417a (Alternate jurors in criminal trials); 1 N. J. Rev. Stat. (1937) 2:91A-1, 2:91A-2, 2:91A-3.

Provisions for qualifying, drawing, and challenging of jurors are found in U. S. C., Title 28:

§ 411 (Qualifications and exemptions)

§ 412 (Manner of drawing)

§ 413 (Apportioned in district)

§ 415 (Not disqualified because of race or color)
§ 416 (Venire; service and return)

§ 417 (Talesmen for petit jurors)

§ 418 (Special juries)

§ 423 (Jurors not to serve more than once a year)
§ 424 (Challenges)

and D. C. Code (1930) Title 18, §§ 341–360 (Juries and Jury Commission) and Title 6, § 366 (Peremptory challenges). Rule 48. Juries of Less Than Twelve-Majority Verdict.

For provisions in state codes, compare Utah Rev. Stat. Ann. (1933) § 48-0-5 (In civil cases parties may agree in open court on lesser number of jurors); 2 Wash. Rev. Stat. Ann. (Remington, 1932) § 323 (Parties may consent to any number of jurors not less than three).

Rule 49. Special Verdicts and Interrogatories.

The federal courts are not bound to follow state statutes authorizing or requiring the court to ask a jury to find a special verdict or to answer interrogatories. Victor American Fuel Co. v. Peccarich, 209 Fed. 568 (C. C. A. 8th, 1913) cert. den. 232 U. S. 727 (1914); Spokane and I. E. R. Co. v. Campbell, 217 Fed. 518 (C. C. A. 9th, 1914), aff'd. 241 U. S. 497 (1916); Simkins, Federal Practice (1934) § 186. The power of a territory to adopt by statute the practice under Subdivision (b) has been sustained. Walker v. New Mexico and Southern Pacific R. R., 165 U. S. 593 (1897); Southwestern Brewery and Ice Co. v. Schmidt, 226 U. S. 162 (1912).

Compare Wis. Stat. (1935) §§ 270.27, 270.28 and 270.30; Green, A New Development in Jury Trial (1927), 13 A. B. A. J. 715; Morgan, A Brief History of Special Verdicts and Special Interrogatories (1923), 32 Yale L. J. 575.

The provisions of U. S. C., Title 28, § 400 (3) (Declaratory judgments authorized; procedure) permitting the submission of issues of fact to a jury are covered by this rule.

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