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accrued and due is not discharged by surrender, re-entry, or eviction. McKensie v. Farrell, 17 N. Y. Super. Ct. 192, 204; Vernam v. Smith, 15 N. Y. 327; Learne v. Ryder, 61 Barb. (N. Y.) 552, 556; Welcome v. Hess, 90 Cal. 507, 27 Pac. 369, 25 Am. St. Rep. 145; McGregor v. Board of Education, 107 N. Y. 511, 517, 14 N. E. 420 ; Sperry v. Miller, 16 N. Y. 407; 2 Wood's Land!ord & Tenant (2d Ed.) § 477, note 3, p. 1096.
But a surrender, re-entry, or eviction between rent days, or at any time before the rent has fully accrued, releases the lessee from liability therefor, and defeats an action for its recovery. Smith v. Shepard, 15 Pick. (Mass.) 147, 25 Am. Dec. 432; Curtiss v. Miller, 17 Barb. (N. Y.) 477, 479; Home Life Ins. Co. v. Sherman, 46 N. Y. 370; Giles y. Comstock, 4 N. Y. 270, 275, 53 Am. Dec. 374; Reed v. Snowhill, 51 N. J. Law, 162, 16 Atl. 679; Hall v. Gould, 13 N. Y. 127.
In Smith v. Shepard, 15 Pick. (Mass.) 147, 150, 25 Am. Dec. 432, the rent was payable quarterly in advance, and eviction was made on the first day of the quarter. Chief Justice Shaw said:
"As to the quarter's rent due by covenant in advance, the defendant had the whole day to make the payment in advance. But during the day the mortgagee entered and ousted him, and this was a good excuse."
In Curtiss v. Miller, 17 Barb. (N. Y.) 477, 479, action was brought for the rent of a half year which ended April 10, 1816. The surrender occurred on April 2, 1846, only eight days before the expiration of the half year. The court said:
"It is well settled by numerous adjudged cases that, when the term is surrendered before the expiration of a period for which rent accrues, the rent for the whole of such period, not then due, is extinguished, and can neither be distrained for nor collected by action. Bain v. Clark, 10 John. (N. Y.) 424; Shepard v. Merrill, 2 John. Ch. (N. Y.) 280 ; Bac. Abr. tit. “Rent”; L. Clum's Case, 10 Co. 128; Shep. Touch. 300, 301 ; Magaw v. Lambert, 3 Pa. 444; Greider's Appeal, 5 Pa. 422; Hall v. Burgess, 5 Barn. & Cres. 332; Grimman v. Legge, 8 Barn. & Cres. 324.”
And it denied a recovery.
In Home Life Ins. Co. v. Sherman, 46 N. Y. 370, the rent was payable quarterly, and action was brought for the quarter's rent from May 1, 1867, to August 1, 1867. There had been a surrender in June, 1867, and a recovery was denied.
The payment of the taxes of 1904 was in lieu of rent for that year. This rent was accruing, but the accrual was not complete when the surrender occurred on December 27, 1904, and none of this rent was due or payable before the last day of February, 1905. As the portion of the rent represented by the payment of these taxes had neither accrued nor become due when the surrender was made, the lessees and the surety were thereby released from liability for it, and the court below fell into an error when it overruled the objection to the evidence of these taxes and took them into consideration in estimating the amount which the lessor might recover of the surety.
For this error, the judgment below must be reversed, and the case must be remanded to the Circuit Court, with directions to grant a new trial, and it is so ordered.
CASSATT et al. v. MITCHELL COAL & COKE CO.
Nos. 6, 7, and 8.
The term "final decision,” as used in the judiciary act (Act March 3, 1891, c. 517, 8 6, 26 Stat. 828 [U. S. Comp. St. 1901, p. 549]), authorizing the review of a final decision on a writ of error, etc., is equivalent to the terms "final decree," or "final judgment,” used in the statutes preceding
the judiciary act. 2. SAME-DISCOVERY-ORDER.
Where, in an action against a railroad company alone for alleged violation of the interstate commerce act, plaintiff applied for and obtained an order entered against certain of the railroad officers and employés, requiring production before and at the trial of books and papers alleged to contain information relative to the granting of rebates, such proceeding was collateral to the main action, and the order, in so far as it required production before the trial, constituted a "final decision,” and was reviewable on a writ of error.
[Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Er
ror, $ 510.] 3. DISCOVERY-STATUTES-CONSTRUCTION-PARTIES.
Where an action was brought against a railroad company alone for alleged violation of the interstate commerce act, the corporation's officers and agents were not “parties” within Rev. St. $ 724 [U. S. Comp. St. 1901, p. 583], authorizing federal courts, on notice, to require the "parties” to produce books or writings in their possession or power which contain evidence pertinent to the issue, etc.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 16, Discovery, $ 121.] 4. SAME-PRODUCTION BEFORE TRIAL.
Rev. St. 8 724 [U. S. Comp. St. 1901, p. 583], declares that on the trial of actions at law United States courts may require the parties to produce books or writings in their possession or power containing evidence pertinent to the issue in cases, and under circumstances where they might be compelled to produce the same by ordinary rules of proceedings in chancery, and, if defendant fails to comply with such order, the court may on motion give judgment against him by default. Held, that such section did not authorize an order requiring a party to produce books and papers before trial, but, if such relief is desired, it must be obtained by
bill of discovery. 5. CORPORATIONS-POWERS-FRANCHISES.
A corporation is not a natural person, but is a creature of the state, possessing no powers or franchises except those conferred by the state.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 12, Corporations, $$
1, 1515.] 6. COMMERCE-INTERSTATE COMMERCE-REGULATIONS-CORPORATIONS.
When a corporation engages in interstate commerce, it subjects itself to the regulative provisions concerning such commerce constitutionally prescribed by Congress.
Buffington, Circuit Judge, dissenting on the ground that the court has
George Patterson and John G. Johnson, for plaintiffs in error.
Before GRAY and BUFFINGTON, Circuit Judges, and LANNING, District Judge.
LANNING, District Judge. The record of this case shows that the Mitchell Coal & Coke Company, plaintiff, has commenced an action at law in the Circuit Court of the United States for the Eastern District of Pennsylvania against the Pennsylvania Railroad Company, defendant, to recover from the defendant damages for its alleged violation of sections 2 and 3 of the interstate commerce act, approved February 4, 1887, by discriminating against the plaintiff in the allowance of freight rates on coal and coke. The defendant filed a plea that it was not guilty. After issue was thus joined, and before the time for the trial of the action, the plaintiff filed in the Circuit Court a petition, in which, after setting forth the nature of the action at law, and declaring that the defendant, and Alexander J. Cassatt, president, John B. Thayer, fourth vice president, and 10 other specifically named officers and employés of the defendant, had in their possession or power certain books and papers containing evidence pertinent to the issue, there was a prayer for an order requiring the defendant and its said officers and employés to produce said books and papers at the trial, and also for inspection by the plaintiff's representatives before trial. The application for the order was based on section 724 of the Revised Statutes [U. S. Comp. St. 1901, p. 583], which is as follows:
"In the trial of actions at law, the courts of the United States may, on motion and due notice thereof, require the parties to produce books or writings in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery. If the plaintiff fails to comply with such order the court may, on motion, give the like judg. ment for the defendant as in cases of non-suit; and if a defendant fails to comply with such order the court may, on motion, give judgment against him by default."
On presentation of the petition to the Circuit Court a rule was allowed requiring the defendant and its officers and employés named in the petition to show cause before the court on a certain day why they "should not produce on the trial of this cause” the books and writings above referred to, and also why they should not produce them at a certain time and place before trial “and permit the plaintiff, its counsel and accountants to inspect the same and take such copies as they may deem proper.” The defendant answered the petition, setting forth (1) that the action was for the recovery of damages in the nature of penalties, and therefore that the defendant was not obliged to produce its books and papers either before or at the trial; (2) that, even if the action were one in which the defendant could be required to produce its books and papers at the trial, it could not be required to do so before the trial; (3) that the petition did not describe with sufficient particularity the books and papers the production of which was desired, or state the facts which the books and papers would tend to prove; and (4) that the defendant could not produce any books which would show the rebates and drawbacks alleged to have been allowed to other companies, because they had not been so kept as to show any such allowances. With the petition and answer before it, the Circuit Court, on the return of the rule to show cause, “adjudged, ordered, and decreed” that Alexander J. Cassatt, president, John B. Thayer, fourth vice president, and the 10 other officers and employés of the defendant, "produce on the trial of this cause” the books and papers described in the petition, and also that they produce them before trial at a specified time and place for the inspection of the plaintiff with leave to the plaintiff to make copies thereof. This order is now brought before us for review on a writ of error sued out by Alexander J. Cassatt, John B. Thayer, and the 10. other officers and employés of the defendant company.
At the threshold of the case we are confronted with the question: Have we power to review the order on this writ? The defendant in error, the Mitchell Coal & Coke Company, contends that we have not, and moves for the dismissal of the writ on the ground that the order is not a "final decision” within the meaning of section 6 of the judiciary act of March 3, 1891 (26 Stat. 828, c. 517 [U. S. Comp. St. 1901, p. 549]). The expression "final decision” used in that section, is equivalent to "final decree” or “final judgment” used in the statutes preceding the enactment of the judiciary act of 1891. Brush Electric Company v. Electric Improvement Company, 51 Fed. 560, 2 C. C. A. 373. It is conceded that the writ must be dismissed if the order brought up by it is an interlocutory, and not a final, judgment. What constitutes a final judgment or final decree has often been the subject of discussion by our federal courts. For the present purpose it will be sufficient to refer to some of the cases in which it has been held that the judgments or decrees under review in appellate tribunals were final.
In Forgay et al. v. Conrad, 47 U. S. 201, 12 L. Ed. 404, there was a motion to dismiss an appeal from a decree in equity. The bill of complaint had been filed by an assignee in bankruptcy to secure a decree setting aside, as fraudulent, deeds made by the bankrupt for his lands and slaves. A decree was ultimately secured setting aside certain of the deeds made to certain of the defendants in the suit, and providing "that the complainant do have execution for the several matters aforesaid in conformity with law and the practice prescribed by the rules of the Supreme Court of the United States.” The decree also contained a clause directing a master to take an account of the profits of the lands and slaves ordered to be delivered up, and provided that:
"So much of the said bill as contains or relates to matters hereby referred to the master for a report is retained for further decree in the premises.”
Two of the defendants in the suit to whom deeds of conveyance had been executed, whose deeds were set aside as fraudulent, appealed from this decree. The other defendants did not appeal. It was urged before the Supreme Court that the decree was not final. Chief Justice Taney said:
"Undoubtedly it is not final in the strict, technical sense of that term. But this court has not heretofore understood the words 'final decrees' in this strict and technical sense, but has given to them a more liberal, and, as we think, a more reasonable, construction and one more consonant to the intention of the Legislature.”
Further on in the opinion he said: "When the decree decides the right to the property in contest, and directs it to be delivered up by the defendant to the complainant, or directs it to bo sold, or directs the defendant to pay a certain sum of money to the complainant, and the complainant is entitled to have such decree carried immediately into execution, the decree must be regarded as a final one to that extent, and authorizes an appeal to this court, although so much of the bill is retained in the Circuit Court as is necessary for the purpose of adjusting by a further decree the accounts between the parties pursuant to the decree passed."
It was accordingly held that the decree was a final one from which an appeal would lie.
Hinkley v. Gilman, etc., Railroad Co., 94 U. S. 467, 24 L. Ed. 166, was a foreclosure suit. On April 8, 1876, a final decree was rendered in that suit; Hinkley having previously been appointed receiver therein. The mortgaged property was sold under the decree and thereafter, on the settlement of the receiver's accounts, he was found to be indebted in the sum of over $18,000, for which a decree was entered against him, directing him to pay the sum so found against him into court by a certain day. From this decree he appealed. It was contended that he was not a party to the foreclosure suit, had no personal interest therein, and therefore could not prosecute an appeal. But Mr. Chief Justice Waite said:
“The receiver cannot, and does not, attempt to appeal from the decree of foreclosure, or from any order or decree of the court, except such as relates to the settlement of his accounts. To that extent he has been subjected to the jurisdiction of the court and made liable to its orders and decrees. He has, therefore, the corresponding right to contend against all claims made against him. For this purpose he occupies the position of a party to the suit, although an officer of the court, and, after the final decree below, has the right to his appeal here. In this case the final decree has been given, and the case is properly here upon the appeal as prayed and allowed.”
In Trustees v. Greenough, 105 U. S. 527, 26 L. Ed. 1157, the complainant, a holder of bonds of the Florida Railroad Company, filed a bill in equity on behalf of himself and the other bondholders against certain parties who, it was alleged, were illegally dissipating the property of the company. The complainant secured the relief he sought by a decree which took the management of the property out of the hands of the defendant trustees and put in into the hands of the agents appointed by the court. A great amount of property was thereby saved to the complainant and his co-bondholders. After this result had been secured he filed a petition praying for the payment to him out of the funds of a sum sufficient to cover his expenses and for his personal services. The court made an order on this petition, allowing to the petitioner his expenses and a sum for personal services. From this order an appeal was taken. The objection was interposed that the order was not a final decree from which an appeal would lie. But Mr. Justice Bradley held that it was, saying:
"Though incidental to the cause, the inquiry was a collateral one, having a distinct and independent character, and received a final decision. The administration of the fund for the benefit of the bondholders may continue in the court for a long time to come; dividends being made, from time to time, in payment of coupons still unsatisfied. The case is a peculiar one, it is true; but under all the circumstances we think that the proceeding may be regarded as so far independent as to make the decision substantially a final decree for the purposes of an appeal.”
In Brush Electric Co. v. Electric Improvement Co., 51 Fed. 557, 2 C. C. A. 373, the California Electric Light Company and the San