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attach a witness for neglecting to testify without evidence that his testimony is pertinent to the case and such as the party is entitled by law to demand."

In Re Judson, 3 Blatchf. 116, Fed. Cas. No. 7,563, the same learned judge said:

"I see no reason why any more stringent obligation should be imposed upon a witness in these outside examinations than is enforced in court. Before the court will adjudge a witness to be in contempt, or commit him therefor, it will require more than proof that he declines to respond to a question. It will inquire whether the question is relevant and material to the case or hearing, and also whether the witness is legally exempt from answering it."

In United States v. Tilden, 10 Ben. 566, Fed. Cas. No. 16,522, it was held:

"I have * * reached the conclusion that, under the law, it is com petent for the court to issue a subpoena duces tecum to compel the production upon the examination of books and papers which would be competent evidence in the cause."

It will be noticed that the court did not hold that it had the power. by a subpoena duces tecum, to call for the production of any papers. but only those "which would be competent evidence in the case." It follows necessarily, from this limitation of the court's power, that a subpoena duces tecum should not issue as of course, but only under some restrictions, such as a prior investigation, into the materiality of the evidence called for.

In Bischoffsheim v. Brown (C. C.) 29 Fed. 341, it was held that: "The books, papers, and documents asked to be produced not being shown to be material or relevant, the motion for a subpoena duces tecum must be denied."

In United States v. Hunter (D. C.) 15 Fed. 712, there was a motion, as in this case, to quash a subpoena duces tecum which had been issued on an ex parte petition and served on a telegraph operator, commanding him to produce certain telegrams in his possession. The court, after stating what allegations are necessary in the application for the subpoena, gives the reason therefor as follows:

"In order that the court or judge ordering the subpoena may have some means of judging the relevancy of the testimony sought."

In Dancel v. Goodyear Shoe Machinery Co. (C. C.) 128 Fed. 753. 760, an application for a subpoena duces tecum under section 863, Rev. St. [U. S. Comp. St. 1901, p. 661], was denied because it did not appear prima facie from the allegations in the petition that the documents called for were "material and necessary," although in the petition it was stated that they were material and necessary. Judge Colt, who delivered the opinion in that case, after a very exhaustive review of the authorities on the subject, said:

"A party undoubtedly has the right to invoke the process of the court to compel the attendance of witnesses and the production of such papers as are material to his case; but neither the right of a party nor the power of the court extends beyond this. A party has no right, and the court has no power, to compel the production, either in court or before a magistrate, of the private papers of a witness which are not relevant and material to the Any practice which sanctions such a proceeding is unwarranted and

case.

an infringement upon a fundamental personal right guarantied by the federal Constitution. The courts have always recognized this protection to the individual secured by our organic law. Such recognition is seen in the distinction which is made between a subpoena ad testificandum and a subpœna duces tecum. The former is a process of right, while the latter is addressed to the discretion of the court. The discretion here does not mean that the court has power to refuse the compulsive production of a paper which is material evidence in the case, but that before compelling its production by a subpoena duces tecum it will sufficiently inquire into the matter to determine if the evidence appears to be material, and, if not satisfied on this point, it will decline to issue the writ."

In Crocker-Wheeler Co. v. Bullock (C. C.) 134 Fed. 241, a similar question was before the court, and it was there held that the facts sought to be proven by the books sought to have produced by the subpoena were not relevant or material to the issues in the cause, and that for this reason the witness had a legal right to withhold them. The only cases cited to the court by the learned counsel for the complainant as opposed to these views and sustaining the contention of complainant that a mere allegation in the petition for the subpoena that "the said books and papers are material and necessary evidence in said cause" is sufficient, are United States v. Babcock, 3 Dill. 566. Fed. Cas. No. 14,484, and an opinion by Judge Finkelnburg in this case C. C.) 148 F. 486. As Judge Finkelnburg practically adopts Judge Dillon's views as expressed in the Babcock Case, it is only necessary to refer to that opinion, which was an oral opinion delivered by Judge Dillon, concurred in by Judge Treat. The great learning of that eminent jurist entitles his opinions to the very highest consideration, but they are not of binding authority. It will be noticed that Judge Dillon cites no authorities to sustain his conclusion, and in view of the fact that the decision was made in the midst of an important trial before a jury, and delivered orally, the learned judge probably failed to give it that careful consideration which he usually gave to his opinions. In fact, it seems this matter was not insisted on by counsel, for the learned judge says:

"But Mr. Shepley suggested in argument that there was no sufficient showin that these papers were material, but we understood him finally not to insisɩ on that point.”

In Ex parte Brown, 72 Mo. 83, 96, 37 Am. Rep. 426, a very carefully considered case on that subject, the court expressly declined to follow that case, saying:

"The case of Babcock v. United States, 3 Dill. 567, Fed. Cas. No. 14.484, relied upon as an authority as to the sufficiency of the identification of the telegrams, supports the view it is cited to sustain; but, with the highest respect for the learning and ability of the judges who granted the order for the subpoena in that case, we cannot agree with them. Their opinion, delivered by Judge Dillon, is totally at variance with our convictions on the subject."

This decision of the Supreme Court of Missouri was cited with approbation and followed by the Supreme Court of the United States in Hale v. Henkel, supra, thus practically adopting the refusal of that court to follow the views of Judge Dillon in United States v. Babcock. Section 869, Rev. St. [U. S. Comp. St. 1901, p. 665], although

applicable only to depositions taken under a dedimus potestatum, provides for authority to issue a subpoena duces tecum upon "such judge being satisfied by the affidavit of the person applying, or otherwise, that there is reason to believe that such paper, writing, written instrument, book or other document is in the possession or power of the witness and that the same, if produced, would be competent and material evidence for the party applying therefor"-thus showing that Congress, in legislating upon this subject, has carefully restricted the power of the courts to cases in which the evidence is relevant and material.

The allegation of counsel in the petition that the evidence is material or relevant is but a conclusion of law. It is for the court to determine from the facts set out in the petition, or perhaps other proofs, whether the documents, when produced, will be relevant and material. In my opinion, in order to entitle a party to a subpœna duces tecum requiring a witness not a party to the action to produce books and documents in his possession, it is not sufficient to allege merely that the documents required are material or relevant to the issues; but the facts which will show the court that they are relevant and material must be set out, in order to enable the court to determine that fact.

Seeing the production of papers and documents for the purpose of finding out whether or not they contain information valuable to the party demanding them has been aptly denominated a "fishing examination," and is always regarded as oppressive, and as such denied. 2 Elliott on Evidence, § 1410; United States v. Tilden, supra. At the same time, the court, in passing on the question of materiality or relevancy, will not be governed by the strict rules of evidence governing the admissibility of evidence on final hearing. That will be left for determination at the hearing. It is sufficient if the facts set out in the petition or the proofs adduced show a prima facie case, or sufficient to enable the court to say that there is reasonable cause to believe that such evidence is relevant or material; or, as stated by Judge Colt in Dancel v. Goodyear Shoe Machinery Co., supra:

"The court will not finally determine the question of materiality on such application, but it must be reasonably satisfied that the evidence is relevant and material."

From the allegations in the petition for the subpoena duces tecum, the court is unable to determine whether such is the fact, and for this reason the order for the subpoena was improvidently granted, and the motion to quash is sustained, without prejudice to the filing of another petition.

LEWIS V. PECK.

LEWIS V. PECK et al.

(Circuit Court of Appeals, Seventh Circuit. April 17, 1907. Rehearing Denied May 17, 1907.)

No. 1,335.

INJUNCTION-VIOLATION-JURISDICTION TO GRANT INJUNCTION.

A decree of a federal court foreclosing mortgages on the property of corporation and directing a sale thereof, after determining the rights and priorities of the parties under mortgages given by successive owners. provided that the purchaser at the sale should hold the property free and discharged from the lien of all the mortgages and free from all claims of every kind or nature of any of the parties or those claiming under them; also, after reserving certain questions for future disposition. it provided that "jurisdiction of this cause is retained in this court for the purpose of determining all such reserved questions and of enforcing the conditions of this decree and of any further order made herein, and any party to this proceeding may apply to the court for further orders and directions at the foot of this decree." A sale was made, and certain dissatisfied bondholders under one of the mortgages, who were not parties to the suit, except by representation by the trustee in the mortgage, appeared individually and objected to its confirmation. Their objections were overruled and the sale confirmed by an order, which, inter alia, prohibited and enjoined all parties to the suit and all persons claiming through or under them, their attorneys, solicitors, etc., "from setting up any pretended or alleged title against the title of the purchasers." Such dissatisfied bondholders, having been denied an appeal on the ground that they were not parties, filed a bill in a state court against the purchasers and others, praying for a foreclosure of their mortgage, whereupon their solicitor was cited into the federal court on petition of the purchasers and adjudged in contempt for violation of its injunction in instituting such suit. Held, that the injunctional provision of the order of confirmation was not within the power reserved by the court by the decree to enforce its conditions, and, not being within any issue in the suit, was without jurisdiction and void as against the individual bondholders, or their counsel, who were not parties in any sense which would confer jurisdiction over their persons, to make such order binding upon them and to deprive them of their right to a hearing on their alleged individual rights in any court of competent jurisdiction; and that it afforded no basis for the proceedings in contempt.

[Ed. Note.-Liability of attorneys, see note to Anderson v. Comptois, 48 5. C. A. 7.]

Grosscup, Circuit Judge, dissenting.

In Error to the Circuit Court of the United States for the Southern District of Illinois.

This writ of error brings for review a judgment of the Circuit Court and Sentence of imprisonment against the plaintiff in error, James Hamilton Lewis, upon finding of contempt of court, in the violation of an injunctional The proceedings in which the injunctional order was isorder of such court. kued were under the title of consolidated actions of Farmers' Loan & Trust Company, Trustee, and United Waterworks Company, Limited, v. New England Waterworks Company, Alton Waterworks Company et al.-one a bill 'for foreclosure of a mortgage and the other a creditors' bill-upon which defree had theretofore been entered, which is the same decree appealed from in New England Waterworks Co. v. Farmers' Loan & Trust Co., 136 Fed. 521, 69 C. C. A. 297, and affirmed by this court, and the general nature of the bills and decree are sufficiently described in the opinion there filed and reported.

154 F.-18

Upon the coming in of the master's report of sale under that decree, objections to confirmation of the sale were interposed by one Allen A. Brown and other persons, as individual bondholders under a trust deed, made by the Boston Water & Light Company (a defendant in such decree) to the International Trust Company, trustee (also a defendant therein), setting up, among other grounds, that they were not made parties to such suits, had no notice thereof, and were "being deprived of their property without notice and without due process of law"; also that the purchase price was grossly inadequate. The plaintiff in error appeared for and represented these bondholders in opposing the confirmation. On May 5, 1905, the court entered an order or decree of confirmation of the sale, as reported, to Samuel L. Peck, G. R. Leighton, Charles G. Sanford, and Russell Frost. a committee representing bondholders, for the price named. The order recites, among other matters. that the purchaser moved to strike out the objections filed by Brown and others, and then orders "that the said objections and exceptions of the said Allen A. Brown and others be and the same are hereby overruled and held for naught." and that the sale is thereupon confirmed; and the following is the concluding provision:

"And it is further ordered, adjudged, and decreed that, upon the completion of the payment of the purchase price by the said purchasers, the delivery to them of the deed of the said master and the delivery of the prop erty to them by the said receiver, that the title to the said property and assets as against each and every party to this action, and all persons claiming, or to claim, under them, or either of them, be vested absolutely in the said purchasers and their assigns, and all parties to this suit, and all persons claiming, or to claim, by, through, or under them, be, and they and their and each of their attorneys, solicitors, officers, and agents are, forever prohibited and enjoined from setting up any pretended or alleged title, as against the title of the said purchasers acquired by means of said master's deed in this decree mentioned, and which said pretended or alleged title may have arisen by, through, or under any of the said parties to the said cause, and from in any way interfering with or disturbing the said purchasers, or their as signs, in the full and free use and occupation and enjoyment of all the said property so acquired by said purchasers by means of said sale and said deed from the said master.

"It is further ordered, adjudged, and decreed that the said purchasers have leave at the foot of this decree to apply for further directions and for any amendment thereof until the last day of the next term of this court, and for that purpose this cause will, upon adjournment of the present term of this court, stand continued upon the docket of this court until the last day of the next term thereof."

The objecting bondholders then made application to Mr. Justice Day of the Supreme Court for allowance of an appeal to that court, but the appeal was disallowed with a letter addressed to the plaintiff in error, which is made a part of the record, stating in effect that the bondholders were not naned as parties, so that they were not entitled to a review on appeal, remarking that "their rights, if invaded, must in my opinion be worked out in an org inal proceeding." Subsequently, Brown and other bondholders filed a bill the circuit court of Madison county against the Boston Water & Light Cor pany and other defendants, including the purchasers under the foreclosur decree above mentioned, for foreclosure of their alleged mortgage, and tử plaintiff in error appeared therein as solicitor for the complainants. There upon the purchasers under the foreclosure decree petitioned for a rule to be entered by the Circuit Court of the United States, upon the plaintiff in er ror, to show cause why he should not be punished for contempt of court for filing such bill and issuing summons thereupon, in alleged violation of the injunction of that court. The petition was entertained by the court, under the title of the original consolidated suits, upon an order "that said causes be redocketed for the purposes of said petition," and that a citation issue thereupon.

The plaintiff in error submitted his sworn answer to such rule, disclaiming "any intention on his part to violate any lawful orders or decrees en

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