collateral to the principal suit, though in aid of it. There is but one defendant in the principal suit, and that is the Pennsylvania Railroad Company. In the collateral proceeding the defendants are the Pennsylvania Railroad Company and 12 other parties. It is those 12 other parties who have sued out the writ of error. The order of the Circuit Court is, in effect, one overruling the answer, which is an answer in the nature of a demurrer to the petition, and directing the defendants mentioned in the petition, other than the Pennsylvania Railroad Company, which company is not included in the order, to produce the books and papers, not only at the trial of the action at law, but before the trial for the inspection of the counsel and agents of the plaintiff company.

We think this case is plainly distinguishable from Alexander v. United States, 201 U. S. 117, 26 Sup. Ct. 356, 50 L. Ed. 686, in which the order appealed from was held to be an interlocutory order. There Alexander was directed by the court to appear before an examiner, in an equity suit, and produce certain books and answer the questions propounded to him by the complainant's counsel. He was a mere witness in the trial of the suit before the examiner. He was required, under equity rule 67, to answer all questions propounded to him. It was the duty of the examiner under that rule to take all the evidence, noting the objections thereto. Blease v. Garlington, 92 U. S. 1, 23 L. Ed. 521; Nelson v. United States, 201 U. S. 92, 114, 26 Sup. Ct. 358, 50 L. Ed. 673. In every such case the customary rule is applicable that there is nothing from which a witness can appeal before he has been adjudged guilty of contempt. But in the case at bar the petitioner does not seek to secure evidence from a witness in the trial of the action at law, but to compel a discovery by the defendants in the collateral proceeding before the trial of the action at law. The procedure authorized by section 724 is wholly statutory. It prescribes the penalty, and the only penalty, for nonproduction, which is judgment in the action at law against the defaulting party. No judgment of contempt can be rendered in such a case. Merchants' National Bank v. State National Bank, Fed. Cas. No. 9,448, 3 Cliff. 201.

We also think that the case of Logan v. Pennsylvania Railroad Company, 132 Pa. 403, 19 Atl. 137, is distinguishable from the one now in hand. In that case an order was made requiring a party to an action at law to produce papers at the trial. The procedure was under the provisions of an act of the legislature of Pennsylvania approved February 27, 1798, which was evidently modeled upon section 15 of the federal judiciary act of September 24, 1789, (1 Stat. 82, c. 20 [U. S. Comp. St. 1901, p. 583]), now section 724 of the Revised Statutes. The order was made previous to the time fixed for trial, and an appeal was taken from it. The Supreme Court held that the order was merely interlocutory, and therefore not one from which an appeal would lie. Inasmuch as the order in that case was to produce papers at the trial of the action, and not before the trial, it seems clear that the appellant should have reserved his objections to the order until the time of trial. The rulings of the court then made would have been subject to exceptions and could have been reviewed on a writ of error bringing up

the final judgment. The case is not an authority for dismissing the writ of error now before us.

Our conclusion on the motion to dismiss the writ of error is that as the plaintiffs in error have been subjected to the jurisdiction of the Circuit Court and made liable to its order in a proceeding collateral to and independent of the action at law, and as the order is a decision of all the matters involved in that proceeding, and leaves nothing to be done except the ministerial act of executing it by producing the books of the defendant company both before and at the trial of the action, it is, in so far as it requires production before the time of trial, a "final decision" reviewable on a writ of error.

We turn, then, to the consideration of the questions presented by the assignment of errors. The first of these questions is: Are the plaintiffs in error "parties" within the meaning of section 724? In an action at law, if a corporation be a party, a discovery in aid of the action may be obtained by filing in chancery a bill against the corporation and its officers. The officers may be joined in the equity suit because the corporation can answer only under its seal, while the officers are required to answer under oath. In the present case the petitioner has sought to invoke that practice. The argument on behalf of the petitioner is that the officers of the corporation are required to produce its books, not as individuals, but as representatives of the corporation. But section 724 does not authorize such practice. The language is that the federal courts may require "the parties"—that is, the parties to an action at law-to produce books or writings at the trial of the action. In Rose v. King, 5 Serg. & R. 241, the Supreme Court of Pennsylvania, dealing with an order made under the Pennsylvania statute above referred to, declared that there was no power under that statute to require a third person, not a party to the record of the case, to produce books or papers at the trial of the action. In construing section 724 of the federal statutes, the same rule was followed in Ridgely v. Richard (C. C.) 130 Fed. 387. As the plaintiffs in error in the present case are not parties to the action at law, their failure to obey the order directed to them could furnish no warrant for awarding judgment by default against the defendant in that action. The order is therefore void, and for this reason must be reversed.

This point, however, relates merely to a technical defect in the procedure that may be corrected by an application to the Circuit Court for a new order directed to the defendant company, and not to its officers. If a new order be applied for, and the defendant be required to produce its books for the inspection of the plaintiff's agents before the trial of the action, another writ of error may be taken to bring up that order, and thus the trial of the action may be greatly delayed. We have, therefore, considered the second question, fully argued by counsel, which is: Has the Circuit Court the power under section 724, to order a party to produce its books or papers before the time of trial? The decisions of the Circuit Courts are divided on the question; the larger number doubtless being in favor of the exercise of the power. The section is substantially in the same form as when it was first enacted as section 15 of the judiciary act of 1789. In 1789 the parties to an action at law were not admissible as witnesses, and did not be

come so in our federal courts until 1864, when section 858 of the Revised Statutes [U. S. Comp. St. 1901, p. 659] was first enacted. By the old practice a party in an action at law might give notice to his adversary to produce at the trial any document containing evidence pertinent to the issue, shown to be in his adversary's possession, and, if it were not produced, might give, if he were able to do so, secondary evidence of its contents. There was no difference in this respect between civil and criminal actions. Attorney General v. Le Merchant, decided in 1772, and King v. Watson, decided in 1788, 2 T. R. 201. The party receiving such notice could not be compelled to produce, and was not liable to punishment if he failed to produce. The only consequence of failure to produce was that secondary evidence, if available, could be admitted. But if a party in an action at law desired to prove at the trial the contents of documents in the possession of his adversary, and was not able to produce secondary evidence of those contents, then he could file in chancery a bill against his adversary to compel him to disclose those contents under oath either by answer setting forth the contents in full, as was the earlier practice, or, as was the later practice, by appending to his answer a schedule containing a specific description of the documents in his possession the discovery of the contents of which was sought. In the latter case an order could be secured from the chancellor requiring the defendant to leave the documents with a designated officer for the inspection of the complainant. In Crowley v. Perkins, 5 Sim. 552, decided in 1832, the defendant to a bill for discovery in aid of an action at law was ordered to produce at the trial of the action at law certain documents which in his answer he admitted were in his possession. This order, however, was declared in Brown v. Thornton, 1 Myl. & C. 243, to have been without authority. In the latter case the court held that, on a pure bill for discovery in aid of an action at law, all the court of chancery can do is to compel the discovery; that the proceeding ends when the discovery is made; that no decree is entered thereon; that the defendant is then entitled to his costs; and that the complainant, having obtained the discovery, is left to make the best use of it that may be permitted by the court having jurisdiction of the action at law. În a case in chancery where a bill is filed for equitable relief and also for discovery in aid of that relief, the chancellor has always had the power, subject to certain exceptions not now necessary to be mentioned, to order documents in the possession of one of the parties to be produced on final hearing, or before the examiner who takes the evidence for final hearing, or even at any time after the filing of an answer. Dan. Chan. Pl. & Pr. (1st Am. Ed.) 2064; Utah Const. Co. v. Montana R. Co. (C. C.) 145 Fed. 981; Herbert v. Dean & Chapter of Westminster, 1 P. Williams, 773; Bettison v. Farringdon, 3 P. Williams, 363.

3

It is to be observed, then, that previous to 1789 a discovery by a party to an action at law could have been obtained only by the filing of a bill in chancery. That court had the power, in every such case, and also in every case for discovery and full relief in chancery, to compel the production of documents. On a pure bill for discovery in

aid of an action at law, the power was exhausted when the documents were produced and the discovery made. On a bill for discovery and relief, the documents might be required to be produced either before or at the final hearing. The commentaries of Sir William Blackstone appeared a few years previous to 1789. That learned expounder of the principles of the common law (3 Black. Comm. 382), in speaking of defects in the trials of actions at law, mentioned, first, the want of a complete discovery by the oath of the parties, saying:

"It seems the height of judicial absurdity that in the same cause, between the same parties, in the examination of the same facts, a discovery by the oath of the parties should be permitted on one side of Westminster Hall, and denied on the other; or that the judges of one and the same court should be bound by law to reject such a species of evidence, if attempted on a trial at bar, but, when sitting the next day as a court of equity, should be obliged to hear such examination read, and to found their decrees upon it."

The second defect mentioned by him was stated in these words: "A second defect is of a nature somewhat similar to the first-the want of a compulsive power for the production of books and papers belonging to the parties. In the hands of third persons they can generally be obtained by rule of court, or by adding a clause of requisition to the writ of subpoena, which is then called a 'subpoena duces tecum.' But, in mercantile transactions especially, the sight of the party's own books is frequently decisive; as the daybook of a trader, where the transaction was recently entered as really understood at the time, though subsequent events may tempt him to give it a different color. And, as this evidence may be finally obtained, and produced on a trial at law, by the circuitous course of filing a bill in equity, the want of an original power for the same purposes in the courts of law is liable to the same observations as were made on the preceding article."

The author of the judiciary act of 1789 is supposed to have been Oliver Ellsworth. Virginia v. Rives, 100 U. S. 313, 338, 25 L. Ed. 667. That he was influenced by these criticisms of Blackstone in embodying in that act powers theretofore exercised only by the chancellor seems very probable from the following excerpt from Maclay's Journal (page 92) concerning the procedure before the United States Senate, when that body, sitting as a Committee of the Whole, were considering the act:

"Up-now rose Ellsworth, and in a most elaborate harangue supported the clause [the clause requiring a defendant on oath to disclose his knowledge of the case, which was subsequently stricken out], now in chancery, now in common law, and now common law again with a chancery side. He brought forward Judge Blackstone and read much out of him. Patterson rose in reply and followed him through these thorny paths, I thought, with good He showed, justly enough, that Blackstone cut both ways, and nothing could be inferred from him but his ridiculing the diversity of practice between chancery practice and that of the common law."

But, whatever influences may have led to the framing of section 15 of the original judiciary act, the question now presented is whether it was the object of that section to give a complete or only a partial substitute for the chancery proceeding. It seems to have been the first statutory provision in England or in this country extending to courts of law the power of a court of chancery to compel a party to produce documents. In some of our states similar legislation was soon adopted, but it was 62 years before any such power was given to the

courts of law in England. 1 Thomp. on Trials, § 731. The section authorizes the federal courts to make orders for the production of books or writings, not "in actions at law," not "in proceedings in actions at law," but "in the trial of actions at law." Bearing in mind that a court of chancery had the power to require a party to produce books or writings in a case in which that court was called on to administer relief as well as to compel discovery, either before or at the final hearing, the language of the section now under review seems to be restrictive. One of the first cases in which it came before a court for consideration was Bas v. Steele, 3 Wash. C. C. 381, Fed. Cas. No. 1,088. In that case Mr. Justice Washington, sitting in circuit for the district of Pennsylvania, in 1818, after considering other questions, said:

"The remaining point is important and novel, and has not yet been decided in the Supreme Court, in this court, or in any other Circuit Court, so far as we are informed. It is not difficult to give a construction to the section of the act of Congress. When either party wants papers, he must give notice; and he has in view one of these objects: (1) That, if the papers called for are not produced, he may be enabled to argue against the party not producing them to the jury; (2) this object may be to obtain evidence from the contents of the papers called for; and (3) to move the court for a nonsuit, or for a judgment by default, as the case may be. But in either case, the party must entitle himself to the benefits of the section by showing that the party was in possession of the papers called for, and he must also give evidence of the contents of the papers; for it will not do for him only to say what those contents are. The court will require reasonable proof of the possession, and of the pertinency of the papers. If the object of the party is to avail himself of the provisions of the section, so as to move for a nonsuit, or for judgment by default, he must put the party on his guard, and let him know the consequences of a refusal, and the party receiving such notice will come prepared to meet it. In any such case, when the party is called on to produce papers, he may make oath that he has them not, and thus extricate himself from difficulty. This is the case in chancery, where the plaintiff charges the defendant with having papers to which he has a right, and the defendant relieves himself by his oath; and this may be met by contrary proof of two witnesses. In every case, the party claiming the papers must give evidence of the relevancy of the papers, and of the opposite party having possession of them. Whenever a judgment by default, or a nonsuit, is intended to be claimed, the notice to produce papers must give the party information that it is intended to move for a nonsuit, or a judgment by default, as the case may be; and this must hereafter be considered as the rule of the court under this section of the act of Congress."

In Dunham v. Riley, 4 Wash. C. C. 126, Fed. Cas. No. 4,155, Mr. Justice Washington, in 1821, followed Bas v. Steele, and added that the court did not in that case decide whether the order to produce papers should be absolute in the first instance. He said:

"We think it need not be so, but that upon the rule to show cause it may be made nisi, leaving the court at liberty to enforce the rule, unless the plaintiff can show, at the trial, good cause for not producing them. If the rule be made absolute at the time when it is argued, the court might have to go prematurely into an inquiry into the case, in order to decide whether the order should be absolute or not. If the case should be simple, and such inquiry should not appear to be necessary, the court may at once discharge, or make the rule absolute."

In that case the argument was on a rule upon the plaintiff requiring him to show cause why he should not be required to produce certain