JOHNSON STEEL STREET-oRAIL CO. ,.

BRANCH STEEL CO.

195

JOHNSON STEEL STREET-oRAIL

Co.

'11. NORTH BRANCH STEgL CO.

(Circuit OoUA't, W. D. Penn81ll.van1.a·. .No:veIllber;. 19, 1891.)
Wl'}'NESS-BUBPCBNA DUCES TECUM.

The president of a corporation which is a equity may be compelled, bYlfUbpama duceii tecum, to produce drawIngs of the compally material to the issue. .' "

.· .

.

"

Sur Rule for Attachment of A. J. Moxham. John R. Bennett, for rule. Gecrge I. Harding and P. C·.KnO'.t, opposed.
REED, J. The difference between this rule and· that in the of John Fulton, (48 Fed. Rep. 191,) is that Mr. Moxham is the president of the plaintiff company, as well as the patentee named in the patent in suit, and the drawings and templates called for by the BUbpcena duces t6cwm. are those in the possession of Mr. ;M;oxham, or of the plaintiff COJI:l,pany. The general rule seems to be settled that a party to the suit, or the officer ofa corporation party, may be subpamaed to bring such documents as are material to the issue. In Murray v. El8ton, 23 N.J. Eq. 212, it is saio that a party to a suit can be compelled by a subprena. duces tecum to produce papers and documents to be used on the trial as evidence, the court saying that, on general considerations of expediency and policy, it is diflicultto perceive why documents and books whose production would elucidate the issues involved in the suit should be more guarded or inaccessible in the hands of parties than in the custody of others, but that the statute of New Jersey making parties competent witnesses put the matter beyond doubt. In BischojJ8heim v. Brown, 29 Fed. Rep. 343, the court said: "Parties to 8ults in equity, as well as in suits at ]aw, are now competent witnesses in the courts of the United States, by statute, and may now be examined I&t the instance of their adversary. As a witness a party can be compelled, by a 8ubprena duces tecum, to produce books, documents, and papers in IJis possession, the same as any other witness. Merchants' Nat. Bank v. State Nat. Bank, 8 Cliff. 201. He is bound to obey the writ, and be ready to produce the papers in obetlience to the summons." In the case of Edison Electric Light Co. v. U. 8. Electric LightinfJ Co., 44 Fed. Rep. 294, and 45 Fed. Rep. 55, Judge LACOMBE required the production of documents by the officers of the corporation plaintiff, upon a sulYpama duces tecum. In Wertheim v. Railway, etc., ('..0., 15 Fed. Rep. 716, the court held that the officers of a corporation might be compelled, by a subpcena duces tecum, to produce books and documents of the corporation, material to the issue. For the reasons set forth in the opinion in the matter of rule upon John Fulton, the witness must, in my judgment, produce before thp, examiner all drawings, in his possession or that of the plaintiff company, of rolls used in the manufacture of rails by or for the plaintiff, or the witnes9, as called for by the subprena, down to the date of the patent in suit. When this is done, and the costs of this application are paid, the rule will be discharged.

196

FEDERAL REPORTER,

vol. 48.'

JOHNSON STEEL STREET-RAIL

(O£rau'tt

CO.

t1. NORTH BRANCH STEEL

CO.

(Jowrt, W. D.Penns'Uwanw. November 12, 1891.)
, ,. '

WITNlilSs--QONTB'Ml'T-BpBOIAL EXAMINBRS. '.

On an eXaDlination befOre aspeciai exaIDiner a witness will be cpinpelled, by pro· ceedings In contempt, to al1swer question!! that seem to be material to the issue.

Sur Rule for Attachment. of George Hamilton for contempt. John R. Bennett, for rule. George I. Harding and P. O. Knox,o!>posed.

answer] the·courtgenecally inclines towards the application, and requires an answer wherever It seems prolJable the. testimony may .be relevant. Care, to avoid any unnecessary and improper inquiry however, must be int!;) pri vate affairs." ..

REE'D, J. ,.In my judgment the witness. Hamilton should answer the questions submitted to the court. They related to a period prior to the date of thepateot in suitjand seem material and relevant ·to the issues of anticipation, and pl'iorand public sale Rod use, raised by the defendant. In the case of Robinson v. Railroad Co., 28 Fed. Rep. 340, Judge BUTLER said: "In applications such as this [to compel witnesses before' an examiner to

......Andsuch I understand to have been the view enwrtained by him in the case of Dobson v· Grahflm, cited by' plaintiff's. counsel from a copy of the recorel intbat case, . The.,defendantshould, however, confine his ex,patent in suit. amination to the period ·. pro.or to the date of granting The ultimatedecisiQn,;1lS tQ,etheeflect and materiality (.lfthe testimony, of course rests with the circuit court for tbe eastern district, in whiCh tlle. ease is pending, a!l(,lltilimply the questions 8.0 far as involved in this application,' and upon a partial 'presentation of Hie ease. When' the witness answers the questions Rnd pays the' costs of this ap.' plication the );ulewlll be 'discharged.

'ENGLISH

·al.

1'.

SPOlUNE

Co.

(O£row£t·

E. D. November 2, 1891.)

B.&L'm-BRBAOH '011' WARRANT'Y-WAIVER-AOOBPTANOE OF GOODS.

In an action for the pnce'of goods) where the seller claims damages for breach of warranty, itis a question for the Jury whether, he waived hjs 01aim for damages by accepting the goods after-he had the opportunity to inspect tllem and discover ·their defective oondition. . --

At Law.

JO'(j,e8·

On motion for new trial.

Voorhees, for plaintiffs.

Turner

Graves and A. G. Avery,

.d:efendant.