there was no finding in possession, and hence no proceeding to forfeit copies so found. Here, there is no attempt to recover in a second action penalties which should have been embraced in a former action; and the recovery is based simply upon the forfeiture incurred by sales of the prohibited copies.

Assuming that the action for the penalties would lie, it is further contended by the defendant company that its rights under sections 724 and 860 of the Revised Statutes were violated by the compulsory production of its books and the reception in evidence of entries showing sales of infringing copies.

Without attempting to state in detail the proceedings which culminated in the introduction of the book-entries in evidence, it is sufficient to say that after a review of the course of the trial, and of the directions and rulings of the court during its progress, we are satisfied that the enforced production of the books cannot properly be said to rest upon an order made under section 724, but that in fact they were produced under a subpœna duces tecum served upon the company's officer.

But, it is urged, that the books were those of a party to the action, and hence that the limitations of section 724 must be deemed controlling; that in actions at law this section excludes all other modes of compelling production of books or writings by the adversary party.

Under section 14 of the Judiciary Act of 1789 (U. S. R. S., sec. 716) power was conferred upon the Federal courts to issue all writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions and agreeable to the practice and usages of law. This comprehended the authority to issue subpoenas duces tecum, for

the right to resort to means competent to compel the production of written, as well as oral, testimony, seems essential to the very existence and constitution of a court of common law. (Amey v. Long, 9 East., 484.)

Section 724, which was originally section 15 of the Judiciary Act of 1789, was to meet the difficulty arising out of the rules relating to parties at common law and to provide, by motion, a substitute quoad hoc for a bill of discovery in aid of a legal action. (Carpenter v. Winn, 221 U. S., 553.)

But by the act of July 2, 1864, (ch. 210, sec. 3; 13 Stat., 351,) it was provided that there should be

no exclusion of any witness on account of color, nor in civil actions because he is a party to, or interested in, the issue tried.

This provision was continued in section 858 of the Revised Statutes.

The purpose of the act in making the parties competent was, except as to those named in the proviso, to put them upon a footing of equality with other witnesses, all to be admissible to testify for themselves and compellable to testify for the others. (Texas v. Chiles, 21 Wall., 488, 492.)

Section 858 was amended by the act of June 29, 1906, (ch. 3608; 34 Stat., 618,) which refers the competency of witnesses in the courts of the United States to the laws of the State or Territory in which the court is held.

It was not the purpose of section 724 to interpose an obstacle to the exercise of the general power of the court with respect to the issuance of subpoenas duces tecum, and that was not its effect. The barrier, in the case of parties, existed independently of the provisions of the section and by these, it was sought to mitigate the resulting inconvenience. When, however, the rule as to parties was changed it followed that the obstacle was removed and by virtue of the general authority of the court subpoenas duces tecum may run to parties as well as to others, leaving those who are subpoenaed to attack the process if of improper scope or lacking in definiteness, or to assert against its compulsion whatever privileges they may enjoy. (See Merchants' National Bank v. State National Bank, 3 Cliff., 203; Nelson v. United States, 201 U. S., 92.)

We conclude, therefore, that no question arises under section 724, which cannot be regarded as providing an exclusive procedure. The subpoena was valid; and the books called for were produced. The inquiry, then, is as to the admissibility of the entries.

It is insisted that the evidence was inadmissible under section 860 of the Revised Statutes. This ground, although it had been relied upon earlier in the trial, was not included in the objection-as it was formally stated at length-when the books were finally produced and the entries offered. But, apart from this, the statute did not afford a sufficient basis for objection.

Section 860-since repealed by the act of May 7, 1910, (ch. 216; 36 Stat., 352)—was a reënactment of section 1 of the act of February 25, 1868, (ch. 13; 15 Stat., 37,) and provided:

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.

This language is inapposite here, for it manifestly refers to a case where, in some prior judicial proceeding, discovery had been made or testimony had been given and the evidence so obtained was sought to be used. The object of the statute is sufficiently plain. It was intended to give immunity as to subsequent proceedings to the one making discovery or testifying. But it was held to be inadequate, because it was not coextensive with the constitutional privilege. (Counselman v. Hitchcock, 142 U. S., 547, 564; Brown v. Walker, 161 U. S., 594.)

In the present case, the question, therefore, must be whether under the Fourth and Fifth Amendments of the Constitution of the United States the defendant company, as it contends, was entitled to object to the admission in evidence of the entries from its books. As to this, we need only refer to the recent decisions of this Court. (Hale v. Henkel, 201 U. S., 43; Nelson v. United States, supra; Hammond Packing Company v. Arkansas, 212 U. S., 348; Wilson v. United States, 221 U. S., 361.

We have examined the errors assigned with respect to other rulings on questions of evidence and the refusal of the court to direct a verdict for the defendant, and we find no ground for a reversal of the judgment.

Affirmed.

DIGEST OF DECISIONS.

[Decisions of the Supreme Court of the District of Columbia are indicated by the letter ("); United States Circuit Courts by the letter (); Court of Appeals of the District of Columbia by a star (*); United States Circuit Court of Appeals by the letter ("); and Supreme Court of the United States by two stars (**).]

ABANDONMENT OF APPLICATIONS. See Prosecution of Application, 18, 23, 24; Suits under Section 4915, Revised Statutes, 1.

1. PROSECUTIONS OF APPLICATIONS-NON-RESPONSIVE ACTION.-On August 3, 1909, applicant was required to revise his specification and claims. On May 13, 1910, an amendment was filed canceling the original specification and claims and substituting a new specification. On May 28, 1910, the applicant was informed that the new specification contained no claims and that action on the merits of the case was deferred. Held that the year in which applicant could take action ran from August 3, 1909, and that an amendment containing new claims not having been filed till October 21, 1910, the application was abandoned in the absence of a showing establishing that the delay was unavoidable within the meaning of section 4894 of the Revised Statutes. Ex parte Kehrhahn, 7.

2. RESPONSIVE ACTION.-The Examiner after some prosecution of an application cited for the first time a Swedish patent and rejected certain claims thereon without specifically applying it to the claims. At the end of the year from this action applicant presented an amendment canceling the rejected claims and substituting five new claims, stating that the Swedish patent had been translated and that the new claims were believed to clearly distinguish therefrom. Held that the application is not abandoned. (Ex parte Copeland, C. D., 1909, 239; 149 Ex parte Watters, 21.

O. G., 309, distinguished.)

3. APPEAL FROM DECISION OF COMMISSIONER-JURISDICTION OF COURT OF APPEALS OF DISTRICT OF COLUMBIA.-Where the Commissioner decided that an amendment filed within the time fixed by the statute was not responsive and entered an order holding the application abandoned, Held that such order "is within the purview of the statutes providing for appeals from the Commissioners decisions." (*) In re Selden, 306. 4. SAME-SAME.-Where action was taken by the applicant within the time fixed by the statute, but it was decided by the Commissioner that such action was not fully responsive to the last Office action, Held that "the facts being admitted, the question of abandonment became one of law and is not governed by the same rule applicable to cases where it is sought to review the exercise of discretion on the part of the Commissioner." (*) Id.

5. SAME. On an appeal from a decision of the Examiners-in-Chief holding claims unpatentable twenty-one new claims were presented for the consideration of the Commissioner, who held that these claims might

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