on mesne process therein, it shall be the duty of the marshal, by virtue of the writ of habeas corpus cum causa, to take the body of the defendant into his custody, to be dealt with in the cause according to law and the order of the circuit court, or, in vacation, of any judge thereof; and if, upon the removal of such suit or prosecution, it is made to appear to the circuit court that no copy of the record and proceedings therein in the State court can be obtained, the circuit court may allow and require the plaintiff to proceed de novo, and to file a declaration of his cause of action, and the parties may thereupon proceed as in actions originally brought in said circuit court. On failure of the plaintiff so to proceed, judgment of non prosequitur may be rendered against him, with costs for the defendant.

Under this section, which declares that after removal "any further proceeding, trial, or judgment therein in the State court shall be void," an indictment found in a State court after the removal of the cause to the United States circuit court was null; and where, upon habeas corpus cum causa, it appears that the prisoners were in the discharge of their duty as revenue officers of the United States when the act was committed, and were without fault, they will be discharged (State of North Carolina v. Kirkpatrick et al. (1890); 42 Fed. Rep., 689; 36 Int. Rev. Rec., 133).

This act is constitutional. (Sup. Court, State of N. C.; State v. Hoskins et al.; 23 Int. Rev. Rec., 263; 77 N. C. 530.)

Removal of criminal case. (Tennessee v. Davis, 100 U. S., 257; 26 Int. Rev. Rec., 90.)

Case of a guard acting in aid of a marshal. (Davis v. South Carolina, 107 U. S., 597; 29 Int. Rev. Rec., 189.)

Act of March 3, 1875 (18 Stat., 470): "An act to determine the jurisdiction of circuit courts of the United States and to regulate the removal of causes from State courts, and for other purposes.' This act does not supersede section 643. (Venable v. Richards, 105 U. S., 636; 28 Int. Rev. Rec., 162.)

Section 5, act of March 3, 1887 (24 Stat., 552), amending the act of March 3, 1875, above referred to. Nothing in this act shall be held to repeal or affect any jurisdiction or right mentioned in section 643.

Act of August 13, 1888 (25 Stat., 433): "An act to correct the enrollment of the act of March 3, 1887." (34 Int. Rev. Rec., 335.)

Habeas corpus: The writ can not be sustained if issued by State court to inquire into detention of a person by a United States officer. Conflict between State and United States courts. (Tarble's Case, 13 Wall., 397; 15 Int. Rev. Rec., 135; dissenting opinion of Chief Justice Chase, 15 ibid., 193.)

A summary proceeding by a landlord to recover from a lessee possession of premises used as a bonded warehouse, to which proceeding the collector of internal revenue and a United States storekeeper are made parties defendant, and described as undertenants holding over, is removable to a Federal court under this section. (Gallatin v. Sherman et al., Circuit Court S. D. New York, (1896,) 77 Fed. Rep., 337.)

When a prosecution can be deemed to be commenced within the meaning of the acts of Congress authorizing removal from State courts to United States courts for trial. (Virginia v. Paul, 148 U. S., 107.)

A criminal prosecution is commenced as soon as a warrant has been issued and is then removable into the United States circuit court. (State of Georgia v. Bolton, 11 Fed. Rep., 217.)

Charges which may be joined in one indictment.

SEC. 1024. When there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments the whole may be joined in one indictment in separate counts; and if two or more indictments are found in such cases, the court may order them to be consolidated.

Although section 3397 designates as felonies some of the offenses specified in it, and omits to designate others as felonies, offenses of each class, which arise out of one and the same transaction, may, under section 1024, be charged

in one indictment in different counts. (United States r. Louis Jacoby, 12 Blatch., 491.)

Several charges may be joined in one indictment in separate counts, but the accused shall not be tried at the same time for different offenses; and an indictment charging the accused in one count with carrying on the business of a retail liquor dealer without having paid the special tax, and in another with dealing in manufactured tobacco without payment of the special tax, will be quashed. (United States v. Gaston, 28 Fed. Rep., 848.)

The subject of the joinder of distinct offenses in one indictment against the same person fully examined. (Pointer v. United States, 151 U. S., 396; Williams v. United States, 168 U. S., 390; United States, v. Maguire, 22 Int. Rev. Rec., 146.)

Offenders against the United States, how arrested and removed for trial-Warrants may be issued by State officers.

SEC. 1014. For any crime or offense against the United States, the offender may, by any justice or judge of the United States, or by any commissioner of a circuit court to take bail, or by any chancellor, judge of a supreme or superior court, chief or first judge of common pleas, mayor of a city, justice of the peace, or other magistrate, of any State where he may be found, and agreeably to the usual mode of process against offenders in such State, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense. Copies of the process shall be returned as speedily as may be into the clerk's office of such court, together with the recognizances of the witnesses for their appearance to testify in the case. And where

any offender or witness is committed in any district other than that where the offense is to be tried, it shall be the duty of the judge of the district where such offender or witness is imprisoned, seasonably to issue, and of the marshal to execute, a warrant for his removal to the district where the trial is to be had.

Marshal can not be aided by the military. (§ 15, act of June 18, 1878, (20 Stat., 152;) 16 Op. Atty. Gen., 162.)

A person arrested in one district may be held to bail for trial in another upon a certified copy of an indictment which has been found against him'in such other district. (United States v. Pope, 24 Int. Rev. Rec., 29.)

A preliminary examination before a commissioner is not a proceeding in court. (Todd v. United States, 158 U. S., 278.)

Powers of United States commissioner. (United States v. Berry, 26 Int. Rev. Rec., 405.)

The powers exercised by a United States commissioner in the examination of a person charged with an offense are those common to all examining magis trates. To authorize him to commit he need not be convinced of the guilt of the accused, but the proof should be such as to afford good reason to believe that the offense was committed, and by the accused; otherwise it is his duty to discharge. (Ex parte Jones, 96 Fed. Rep., 200.)

Witnesses: No exclusion on account of color or interest provided, etc.-Laws of the State constitute rules of decision as to competency.

SEC. 858. In the courts of the United States no witness shall be excluded in any action on account of color, or in any civil action because he is a party to or interested in the issue tried: Provided, That in actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other, as to any transaction with, or statement by, the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court. In all other respects, the laws of the State in which the court is held

shall be the rules of decision as to the competency of witnesses in the courts of the United States in trials at common law, and in equity and admiralty.

Potter, executor, v. National Bank. (102 U. S., 163; 26 Int. Rev. Rec., 403.) Expert testimony: The law which regulates the fees of witnesses refers to those who can be compelled involuntarily to testify, not to experts. (In the matter of Smith, paymaster, U. S. Army, 35 Int. Rev. Rec., 64.)

The provision of section 858 that "the laws of the State in which the court is held shall be the rules of the decision as to the competency of witnesses in the courts of the United States in trials at common law, and in equity and admiralty" has no application to criminal trials. (Logan v. United States, 144 U. S., 263.)

Persons charged with crime can be witnesses in their own behalf.

Act of March 16, 1878. (20 Stat., 30.)

That in the trial of all indictments, informations, complaints, and other proceedings against persons charged with the commission of crimes, offenses, and misdemeanors, in the United States courts, Territorial courts, and courts martial, and courts of inquiry, in any State or Territory, including the District of Columbia, the person so charged shall, at his own request but not otherwise, be a competent witness. And his failure to make such request shall not create any presumption against him.

Accomplices used as witnesses; rule as to prosecution. (United States v. Ford, Whisky Cases, 99 U. S. (9 Otto,) 594; 25 Int. Rev. Rec., 127.)

The evidence of an accomplice is competent. If corroborated by other witnesses, credit is to be given to it. (United States v. Whalan et al., 7 Int. Rev. Rec., 161; United States v. Callicott, 7 ibid., 179.)

Production of books, papers, etc., in suits other than criminal.

SEC. 5. Act of June 22, 1874. (18 Stat., 187.) That in all suits and proceedings other than criminal arising under any of the revenue-laws of the United States, the attorney representing the Government, whenever, in his belief, any business-book, invoice, or paper, belonging to or under the control of the defendant or claimant, will tend to prove any allegation made by the United States, may make a written motion, particularly describing such book, invoice, or paper, and setting forth the allegation which he expects to prove; and thereupon the court in which suit or proceeding is pending may, at its discretion, issue a notice to the defendant or claimant to produce such book, invoice, or paper in court, at a day and hour to be specified in said notice, which, together with a copy of said motion, shall be served formally on the defendant or claimant by the United States marshal by delivering to him a certified copy thereof, or otherwise serving the same as original notices of suit in the same court are served; and if the defendant or claimant shall fail or refuse to produce such book, invoice, or paper in obedience to such notice, the allegation stated in the said motion shall be taken as confessed unless his failure or refusal to produce the same shall be explained to the satisfaction of the court. And if produced, the said attorney shall be permitted, under the direction of the court, to make examination (at which examination the defendant or claimant, or his agent, may be present) of such entries in said book, invoice, or paper as relate to or tend to prove the allegation aforesaid, and may offer the same in evidence on behalf of the United States.

But the owner of said books and papers, his agent or attorney, shall have, subject to the order of the court, the custody of them, except pending their examination in court as aforesaid.

This act not repugnant to the Constitution. (United States v. Three Tons of Coal, 21 Int. Rev. Rec., 251.)

The fifth section of the act of June 22, 1874, applies to proceedings under the internal-revenue laws as well as the customs-revenue laws. The act is constitutional. (United States v. Distillery No. 28 and Other Property, 21 Int. Rev. Rec., 366.)

A compulsory production of a person's private papers to be used as evidence against him in a proceeding to forfeit his property for alleged fraud against the revenue laws is an "unreasonable search or seizure" within the meaning of the fourth amendment to the Constitution. (Boyd v. United States, 116 U. S., 617; 32 Int. Rev. Rec., 62.)

The power to compel the production of books and papers covers such documents only as would be, "if produced, competent material evidence for the party applying therefor." It does not permit the inquisition into private records on the mere possibility that something may be found to refresh the recollection of a witness, such records not being in themselves relevant to the case . (United States v. S. J. Tilden, 25 Int. Rev. Rec., 352.)

Section 724, R. S., as to power to produce books and papers in action at law.

Disclosures of witnesses not to be used against them in criminal proceedings.

SEC. 860. No pleading of a party, nor any discovery or evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign country, shall be given in evidence or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture: Provided, That this section shall not exempt any party or witness from prosecution and punishment for perjury committed in discovering or testifying as aforesaid.

No person shall be compelled in any criminal case to be a witness against himself. Fifth amendment to Constitution. (In re Mark Strouse, 11 Int. Rev. Rec., 182; In re Phillips, 10 Int. Rev. Rec., 107.)

A person may be compelled to testify to matters tending to criminate himself, but no use can be made of such testimony against the witness in a criminal proceeding. (United States v. Brown et al., 13 Int. Rev. Rec., 127.)

Certifled copies of papers admissible as evidence.

SEC. 882. Copies of any books, records, papers, or documents in any of the Executive Departments, authenticated under the seals of such Departments, respectively, shall be admitted in evidence equally with the originals thereof.

As to transcripts from books in suits against delinquent officers. (§§ 886, 887, p. 3-5.)

The proper mode of proving papers on file in the Departments is by procuring certified copies. (Barnes v. Schmeider, 9 Wall., 253.)

Documents not official do not by the mere fact of certification become so authenticated as to entitle them to be read in evidence. (Block v. United States, 7 Ct. Clms., 406.)

Officers of the Executive Departments can not be required to remove records or papers filed therein by subpoena duces tecum. (5 Lawrence Dec., 446.)

In the matter of the application of a private person for a certified copy of records and files of Department. (30 Int. Rev. Rec., 382; see also Circular of Secretary of Treasury, dated Aug. 5, 1889; see rule 12, Dep. Cir. No. 148, Sept. 27, 1893.)

RULE XII.-No information in regard to transactions of an official character in this Department is to be communicated to anyone not authorized to receive it.

No information in regard to the claim of any person which has ever been filed in the Department is to be given to any other person unless proper authority is shown by way of power of attorney, or by letters of administra

tion, or otherwise in a manner satisfactory to the Secretary, or an assistant secretary, or to the head of the proper bureau in the Department, or chief of the proper division in the Secretary's office.

No account, document, or paper of any kind on file in the Department shall on any occasion be withdrawn by agents, attorneys, or other persons; and no copies of any such accounts or papers shall be furnished to any person, except upon application to, and with the previous written consent of, the Secretary, one of the assistant secretaries, or the head of the proper bureau, and are to be furnished only to such persons as may have a personal material interest in the subject-matter of the papers, or at their request. An affidavit setting forth the interest of the applicant, and showing the reason why and the purpose for which copies are desired, must be submitted with each application for the same.

In all cases where copies of documents or records are desired by or on behalf of parties to a suit, whether in a court of the United States or any other, such copies shall be furnished to the court only, and on a rule of the court requesting the Secretary of the Treasury to furnish the same.

Exceptions to this rule will be made only on the written order of the Secretary, or of an assistant secretary. (See Rule 10, Rules and Regulations of the Treasury Department, August 6, 1897.)

The records in the office of collector of customs respecting the entry, liquidation and payment of duties are so far public records that the importer has a right to inspect them when they relate to his importations. (United States v. Benjamin H. Hutton and Charles G. Landon, 25 Int. Rev. Rec., 57.)

Privileged communications.- Official correspondence between the Commissioner of Internal Revenue and a district attorney, in relation to cases of violation of the internal-revenue laws and to prosecutions thereunder, belong to that class of communications which, on grounds of public policy, are regarded as privileged, and the production of which in evidence, in a suit between private parties, the law will not enforce.

A subpana duces tecum, issued by a State court, was served upon a district attorney, requiring him to appear as a witness in a private suit and bring with him all letters.and telegrams received from the Commissioner of Internal Revenue relative to certain causes then pending in a United States court on indictments under the internal-revenue laws: Advised, That it would be proper for the attorney to appear before the State court in obedience to the writ, and there object to produce the papers on the ground that they are privileged, if, in his judgment or in that of the Commissioner, their production would be prejudicial to the public interests. (15 Op. Atty. Gen., 378; 23 Int. Rev. Rec., 341.) Official communications privileged from disclosure on the ground of public policy. (Gardner v. Anderson, 22 Înt. Rev. Rec., 41.)

Privileged records, documents, or communications. (Shattuc v McArthur, 25 Fed. Rep., 137, note 2; 15 Op. Atty. Gen., 378, 415, 562; 16 ibid., 24; 24 Int. Rev. Rec., 178.)

A deputy collector of internal revenue can not be compelled to testify, in a criminal proceeding in a State court, as to statements made to him by an applicant for a retail liquor dealer's special-tax stamp, which statements were made for the purpose of being reduced to writing and embodied in the records of the internal-revenue office. To divulge such statements would be to divulge the contents of the records themselves, which is forbidden by the internal-revenue regulations.

The Federal courts have jurisdiction, under section 753, to issue the writ for the purpose of releasing a deputy revenue collector from imprisonment for alleged contempt of a State court in refusing to testify to the contents of the records of the internal-revenue office. (In re Huttman, 70 Fed. Rep., 700; 41 Int. Rev. Rec., 477.)

An instruction issued by the Commissioner of Internal Revenue directing collectors and their deputies to refuse to produce, in criminal prosecutions of liquor dealers in the State courts, the returns made to the collectors, or the lists showing payments of Federal liquor taxes, or to give information derived from official sources as to the fact of such payments, is valid, and in accordance with the Federal laws.

A State has no right to Federal instruments of purely Federal character for proof, unless they are left within its reach. (In re Weeks, Vermont (1897), 82 Fed. Rep., 729; 43 Int. Rev. Rec., 393.)

There is no statute of the United States requiring or permitting a collector of internal revenue to make or certify copies of reports on file in his office, and a State has no authority, either in its sovereign capacity or as a litigant, to impose such duty upon him. (In re Comingore, Collector (1899), 96 Fed. Rep., 552; Vol. 2 Treas. Dec., No. 21584; 96 Fed. Rep., 552.)