PO'.£TER '!1.BtAL.

793.

knowledge on the part of the officers of the batik-as to its insolvent conditionat'the time the -deposit was received, in order to' hring this case within the rule respecting fraud. But the bill alleges that the bank was irretrievabl)' insolvent a.tthe time the checks were,received, through the acts of the president and· two other officers. It must be presumed, therefore, that the officersknElw the condition of affairs and the coosequencesof their own acts. Under these circumstances" it was not necessary to aver specifically that the officers had knowledge of such insolvency. Upon this ground the demurrer is overruled.

POTTER fl.

BEAL et 'tJL

'(mrcuCt' Court, D. MaBBachmettB. February SIi, 189'1)
CoNsTITt1TtONAL LAw-UNRBABONaLE BEARCR-PRIVATE PA1'EU-NATlO1!l'AL BA1rKI,

, In Equity. Bill by Asa P. Potter against P. Beal, receiver of the Maverick National Bank, and Frank D. Allen, United States district attorney, to obtain possession of a trunk alleged to contain private papers. HenryD. Hyde, M. F. Dickinson, and Elmer P. Hqwe, for complainant. Hutchins & Wheeler, for receiver. Frank D. Allen, U. S. Atty., pro se.
ALDRICH, District Judge. This is a proceeding in equity, and the bill was filed on the 15th of February, 1892. At that tinie the only parties were Potter, plaintiff, and Beal; receiver, defendant., At a preliminary hearing, February 16th, the plaintiff and defendant were represented by counsel, and the United States attorney appeared, and claimed the right· to be heard on behalf of the governmeQt.. The bill, in effect, alleges that the plaintiff, who was the president and a· director of the Maverick National Bank, deposited in the vaults thereof certain private and personal books, papers, aud other. documents, which were bever the

The president of a national bank which had failed brought a bill againstj;he receiver, alleging that a certain trunk which was then in the vaults, and of whidh his private papers; tq.at the receivel!!. who complainant held the key, refusacl to ,surrender ,the same, was about to be summoned before the gI:and jUry with the papers, to investigate a'criminal charge against complainant. The' prayer was for an order for the delivery of the papers, an injunction against taking them· before tbe grand jury, and fOr general relief.. Complainant proved by the cashier that the trunk was kept in the .bank as the property of the presiden.J;. but the witness had no knOWledge of its contents. Held, that under the fourth and :flftbamendIUents to the federal constitution, the receiver could not give evidence as to the contents of tbe trunk, nor could a public investigation be bad; but, as tbe plaintift had voluntarily submitted his rights, and asked for affirmative relief, the courtwould appoint a master to examine it entirely alone, and turn over to complainant any PlWers belonging to bim, and to the recelvel\such as were the property of the bank, and were not material to the goverument's case against complainant; and that such ,1l,8 related to bank transactions, and were ml/.telial to the prosecution, for further consideration. B&Jia v. U. B., 6Bup. at. should be held by the Rep. 524" n6 U. B. 616, dlBtmguished. .

794

FEDERAL MPQRTJllR,.

voL 49.

property 'Ofth& bank, land that papers inJJJrun:k, to:whicb'be-Jreld, the key; :that tM·trunk.w8s in, waa;·.closed 'by.:order .()f the oomptooller, On ,the .1st that the :has 18ince held it, ·and' ref1llsed the t1Ulttile· iRaperaare pbraonal m'their:, nM1;lte,. and" ment'l()fi hiSJJbusirieS8:affairsj "thati he! u":charged:w:ltb" :ylolatipnsQf law. and tlmt'tbegoV811nmeIit attoi'ney:was aboij,t tQo )s$ue' a aUrnmonSl ,Beal' before tiDe gtand dllry in qUE¥n tion; that he is without-adequate: at law, an\l,tliw.efare interposition of a court of equity. The relief sought is (1) an order that the books, papers, and other documents be delivered to the plaihtiff, (2) that the defendant Beal be enjoined from using the same belore the grand jury; and (3) such other relief as may be just.. At .. was offered other than the evidence contained iIi the bill;' wli'icli' was sworn to. After hearing the partiefl, anq attorney, the prayer for preliminary injunction was' denied,' except so far a8'l'eUef.-was,ihvolved. ,in an order which was: enf.ered ,in, said ceause, and . . " ,;'.', .:. ;>"'1""";" . " '. . publiclltld all parties may be it is defendant. f<)rthwUIi the clerk of the'trunk the United Statescircu.1t court for the,diatrict {)f with its contents; and the clerk is directed to carefuUy lJ:eep the its present condition until ordel'ed." , . to,'this defendant trunk and contents witb·the clerk, wbere it ,now remains under:seaI. Subsequently the defendant his answer, alleging, in effe<Jt,that the trunk into his pollSession as ,a part of the assets oftha IOOnk; that ,he is books, papers, or accounts concerning its affairs; and the government 'attor11ey,appeanng, w; upOn petitioh, made a party; and filed amotion, asking, such an order 88 w'ould lay the papers. before the :grand juryt Whereupon the plaintiff asked for further hearing, to the end that evidence might be introduced as to the nature of his possession, 4f1d. hearing-was had db the23d day of February; 1892;. Atthis hearing the plaintiff called 011e Work, a cashier, whose evidence tended to show that the trunk in question w8l!F·kept iIi the. 'lbll,llk, .and not.elsewhere, as the private trunk of Mr. Potter; but the witness had no knowl. 'edge of c9Dterits; ,It-Iurther appeared. from. this, witness that.Mr. -gotterandone'K.ellogg, the clerk-of·the bank, and: 110 ·secretary to Mr. had acce$s to the truqk.;, NElither Mr. PotPotter, and ,no:'other -ter, nor Kellogg was called as. a witness.,. It also. appeare4that the trunk IWas at one time;opened'by agreement, and that cettain.insurancepoliQiea !.were taken, tberefrom,and that certain deeds of Floritla'lands, which fohe 'Hanson held in trust as security to. certain notes held .by the bank, '\\'eretaken therefrom byMr. Ewer, by agreement. '. : '. ,; The defendants offered evidence as to the character of the contents,

·'POTTER

v.

BEAL.

795

which was excluded upon'the plaintiff's objection, 'On the ground that, as the investigation was for the purpose of ascertaining whether the papers were private, and therefore entitled to protection, the'question should be determined upon aproceeding not in conflit:t with the spirit of articles 4 and 50f theamendmellts to the federal constitution. Upon the preliminary bearing, and at this stage of the proceedings, tbe parties all ask for affirmative relief, neitber denying the jurisdiction of the court nor questioning its power to ascertain the character of the contents of the trunk in question in a reasonable manner, reserving the right to object to all unreasonable and improper proceedings. Now,what is the situation? The plaintiff neither alleges nor proves by satisfll-ctoryevidence that the trunk contains private papers only. He holds the key, and refuses to deliver it, to the end that the trunk may be opened ata public bearing. I only infer from this refusal, in view of the fact that he asks for affirmative relief, that he thinks a public exhibition of private papers unreasonable, and that he is willing to submit to such a private and reasonable examination as is necessary to enable the court to make an intelligent order, and one whicb shall not violate the r.ights ofeither party. The plaintiff, who is supposed to know the contents, does not give information at a public hearing; the who have partial infol'mation, are not permitted to disclose at such hearing. In the case of Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. Rep. 524, it was beld that an order of court upon compulsory proceedings, compelling a party to produce a paper, the character of which was known, in order that it might be used against bim, was an unconstitutional and is erroneous order. The case at bar, in my from the case referred to. Here the plaintiff voluntarily submits his rights to the determination of the court, and asks for relief and an order that papers be delivered, the character of which is not known to the court. the character of the possession, I think the court should know, in a general way, what the trunk contains, before an order is made as to the disposition of its contents. It is very clear that Mr. Potter is entitled-to speedy possession of his private and confidential papers. It is equally clear that the bank is entitled to know what is taken from its vaults. is entitled to have possession of any part orthe Whetber the papers, I do not undertake to say. A court of equity will not make an order changing the actual custody of property without clear and satisfa':ltory evidence of title; in other words, the court will not make an order that this trunk be delivered to either party until it has some evidence of what it contains. With the view, therefore, of ascertaining the rights of the parlies in a manner not unreasonable, and not in conflict with the provisions of the constitution referred to, Ron. JOHN LoWELL, of Boston, is appointed master, to examine the contents of the trunk in question. Mr. Howe, of counsel, will pass the key to the clerk, who will open the trunk in the presence of the master, and no other person; and, after examination by the master, in the presence of no one, such papers, documents, and other things, if any, as are the property of the Maverick Bank, and are not

796

FEDERAL REPORTER,

vol. 49.

material to the issue suggested in the tp otion, of the 'district attorney, after being first shown to the plaintiff, will be deliv6redto the defendant Bealby the clerk. Second. Such,ifany, as are private, audare not the property of the Maverick Ba,nk, together with such; as do relate to Maverick Bank and are necessary and material to be introduced by Mr. Potter in his own behalfJ will be forthwith delivered to his counsel, Mr. Howe. Third. Such, ifany, not included in the two classes above, as relate toMllverick Banktransactions,and,in.the judgment of the master,' are or may be material to the issue in the. motion of the district attorney, and the proper presentment of the government's case, shall be sealed, returned to the trunk aIld the safe custody of the clerk,who will relock the trunk in the presence .of the master, return tha 1l;eytoMr. Howe, and hold the trunk and such contents until further directed. The llUlsterj without characterization, will report whether arnot he finds papers and documents within the classes named, and what disposition has been made thereof. The examina:tion contemplated by this order is to he considered a part of the preliminary hearing; or, in other words, in aid thereof, and is designed to enable the parties to lay evidence before the court in a private and reasonable mallller; the nature of the case being such that it would be unreasonable to direct or permit it to be dane in a public manner. Upon report, the parties will be further heard as to 'the proper use and disposition of such, if any, papers and' .other things as are material to the governmentls case. ItiSiunderstood Jthat the examination is to be private, and no publicity whatever, except such as is conveyed through a report of the character indicated. Befqre the examination contemplatetl by this order, the parties and their counsel may, in the presence of, each other, or rately; if they 80 agree, make such explanation to the master as they de.. sire as to tbecharacter of the papers, and, until such 'examination and report,oruntil the foregoing order is vacated or modified, all parties are strictly enjoined from interfering in any way with the trunk or its tents. It may also be understood that there is to be 6 speedy examina.. tion and. report, unless saine party ltggrieved desires to raise the question of .thepropriety of this order; and in such event,upon proper motion, in view of the novelty of the proceedings, and the delicacy of the question involved, the .examination will be fixed at such a day as will enable the court of appeals to pass upon the question, if such right of appeal exists.

JBA.ACS 'V. SOUTHERN PAO.OQ.

797

ISAACS 'V. SOUTHERN PAC.

Co.

·

(Cfrcuit OOUrt, D. Orf!{1on. March 14, 1899.) .
INJ1l'BT TO EMPLOYE-EvIDENOE.

In the trial at an action tor damages for personal injury occasioned by an accident to a bridge ona railway, it is error to admit evidence on the part of the plaintiJf going to show that in the reconstruction of the bridge longitudinal braces were used where none had been used before. . (Sytwb'U8 by the Oo'Urt.)

At Law. TUmanFord and Richard WiUiafll.8, for plaintiff. E. a. Bronaugh and W. D. Fenton, for defendant.

DEADY, District Judge. This action was brought by Grace G. Isaacs against the Southern Pacific Company to recover damages for personal injuries alleged to have been sustained in a railway accident, commonly known as the" Lake La Biche disaster." On the trial of the case the jury found a verdict for the plaintiff in the sum of $11,000. The d'efendant now moves to set aside the verdict, and for a new trial, because the court erred in admitting evidence on the part of the plaintiff as follows: It being shown and admitted that the bridge in question was originally constructed without braces, the plaintiff called Henry Rogers as a witness, and asked him if the defendant, in the teconstruction of the bridge, put in such braces; to which question the defendant objected, which objection was overruled by the court; and thereupon the defendant excepted, and the witness answered, "Yes." This ruling now appears, in the light of the authorities, to have been erroneous, and materially so. The effect of the evidence was to practically show an admission on the part of the defendant that the bridge was not properly or sufficiently constructed, without longitudinal braces, in the whereas, the use of them in the reconstruction might have been only out of abundance of caution in the light of the experience of the wreck. No authority has been shown in support of the ruling, and it is believed that none can be found, unless it be in the state of Pennsylva.nia. In the case of Nalley v. Carpet Co., 51 Conn. 524, the court said: "Tho fact that an accident has happened, and some person has been injured. immediately puts a party on a higher plane of diligence and duty, from which he acts with a view of preventing the possibility of a similar accident, which should operate to commend, rather than condemn, the person so act· ing. If the subsequent act is made to reflect back on the prior one, although it is done upon the theory that it is a mere admission. yet it Virtually intro.duces into the transaction a new element and test of negligence which has no business there, not being inexistence at the time. " In Morse v. Railroad Co., 30 Minn. 465,16 N. W. Rep. 358, the court overruled its former decisions on subject, and said: