tt. 1891.)

The question whether a decree i. final and appealable is not determined by tbe DaJIl.ewhich ,the court ,below gives it, but is to be decided by the appellate court. on a consideration of the of what is done by the decrlle· ..IOnappeal from atl.nal decree the oircuitcourt of appeals has authority to go bemere reversal, and enter such a deoree as should have been rendered by the couf't below on the whole oose, as shown by the record; and it is its duty to review ,all'iI!terlocutory proceedings, of eVery character, to whioh seasonable objection .' 4!'-s, been made. and insisted upon. ,
ApPEALABLE ORDER"':"'INSPBCTION OJ' PRIVATE PAPJIlRS-FINAL DISPOSITION.

DBTJIlRHINBD."

.. AP:tjAL--REVIEW-'-l\IODUICATION OJ' JUDGMENT-CIROUIT CoURT OJ' ApPEALS.

. WIr the.banking laws, brought a bill against the receiver of the bank to obtain pos-

. "A iJ.a;tion'al bank president. against whom an indictment Was pending for violat-

. session of a trunk alleged private papers. To this llroceeding the United district iattorn8y was made a party defendant on his own petition, for the purpose of claiming the llapers, in order that, they might be laid before the grand Jury. After hearing, a decree was made allllointing a special master to make a of tbe trunk, with directions to turn over to the complainant any papers belonging to him, and to the receiver such llallers as belonged to the bank. and were not material to the llrosecution against the president, and to reserve for further considerationsu'ch as conoerned bank transactions, and were material to the llrosecution.. Bela that, in so far as the decree directed pallers to be turned over to the president and the receiver, it was final and allpealable, since such liar lleI'smight thus llass entirely beyond control of the other llarty claiming them·

.. EQUITY-PARTIES-PRODUOTION OJ' PAPERS.

, , J;t was improper to make the, district attorney a party defendant for the purpose , of prOcuritIg the llallers to be,laid before the grand jury. The proper course was , for hiI\l ,to obtain a 8ubpama duce8 tecum from the court in which the investigar .ti9n was pending, and ,then to make summary application to the court which had impouhded the papers:
CoNSTItUTIONAL LAW-UNRIUSONABLB SEABOH-INSPECTION OJ' PRIVA'l'E PAPERS.

6.,

.UIlQerthe circumst/lneesithe order 1;ly the conrt for an examination of the papers 1:>Y a special master was in violation of the fundamental and constitutional -rights.of the litigants as to the method of trial. Itappea'ring that bef.ore the bill wa)l1:>rought, the :trunk had been opened by consent cit. 1ihepresident'of the bank and the receiver, and certain papers taken out third :persons, one of whom thereby obtained some knowledge of its contents, it was in the power of the conrt to ascertain by private examination the nature of the evidenee thns to be had, and, if it proved prima facie admis8ible,toai).owllublio testj:mony thereof to be given.
. .

",

BAME-:-METHOD ,OJ'

Circuit Court of the United States for the District or Masf:ach·usetts. Reversed. In Equity. Bill by Asa P. Potter, president of the Maverick Na· tional Bank of Boston, against Thomas P. Beal, receiver thereof. Complainant alleges, in substance, that he deposited in the vaults of the bank certain personal and private papers, books, and documents, which were never the property of the bank, and that some of the papers were then in a trunk, to which he held the key; that the trunk was in the vault when the bank was closed by order of the comptroller, and that the receiver has since held it, and refused to pass it to the plaintiff; that the papers are personal in their nature, and necessary to a settlement of hUt private affairs; that he is charged with violations of the law, and that the government attorney is about to issue a summons calling the receiver before the Ilrand jury with the papers in auestion: that he a

without adequate remedy at law, and therefore seeks the interp()sition of equity. The relief sought is (1) an order that the books, papers, and other documents be delivered to plaintiff; (2) that defendant Beal be enjoined from using the same before the grand jury; and (3) such other relief as may be just. At a preliminary hearing Frank D. Allen, the United States district attorney, appeared on behalf of the government. At this hearing, which was merely on the evidence contained in the sworn bill, the prayer for a preliminary injunction was denied, and the receiver was directed to lodge the trunk with the clerk of the court, who was ordered to keep the same in its then condition until otherwise ordered. Afterwards the district attorney, on his own petition, and against plaintiff's objection, was made a .party defendant, and filed a motion that the trunk be opened and delivered to the government and the grand jury, in order that all material evidence therein contained might be used in the investigation. The receiver thereafter filed his answer, alleging that the trunk came into his possession as a part of the assets of the bank; that he is advised and believes that it is his duty to examine its contents, and ascertain whether it contains property of the bank, or memoranda, books, papers, or accounts concerning its affairs. Whereupon plaintiff asked for a further hearing, that evidence might be introduced as to the nature of his possession. This hearing was had February 23, 1892, and plaintiff called one Work, a cashier, whose evidence tended to show that the trunk was kept in the bank, and not elsewhere, as the private trunk of Mr. Potter, but the witness had no knowledge of its contents; that Mr. Potter and one Kellogg, the clerk of the bank, and a secretary to Mr. Potter, and no oth er persons, had access to the trunk. Neither Mr. Potter nor Kellogg was called as a witness. It appeared also that the trurik,while in possession of the receiver, was opened several times by agreement, and there were taken out certain insurance policies on Mr. Potter's house, as well as certain deeds of Florida lands which one Ranson held in trust as security to certain notes held by the bank. At these times Mr. Edward W. Hutchins, counsel for the receiver, was present. He was called as witness by plaintiff, and on cross-examination stated that he then saw into the trunk, and obtained some knowledge of its contents. He was then asked to state what were some of its contents, but the question was objected to and ruled out, and he was allowed to IIlake no statement of its contents, though he testified that on those. occasions he, as well as the receiver, took part in the examination of the trunk without any objection, so far as he knew. After the conclusion of this hearing, on February 25, 1892, the court delivered an opinion, which is reported in 49 Fed. Rep. 793, and made the following order: "With a view of ascertaining the rights of the parties to this bill in a manner not unreasonable and not in conflict with the prOVisions of the constitution, it is ordered that Hon. John Lowell, of Boston, be, and he hereby is, appointeli master to examine the contents of the trunk referred to in Said bill. That Mr. Howe. of counsel, pass the key to the clerk of this court.
, >. <

,1.

DDE!W. '1iEPoltTD, voL 50.

open'ttHl tlrnnkln the ,preaenceoftbe mRstelr .nd'no' other llnd ,that, ,alter examination by the master; In the presence()f no one, docuqJllnt!J, and other if any. !'8 .e the pl'opertyot the )j:l.'verlckB"nk. ,and are, not material to tQll il,lsuesuggested in tpe iJ)!>tionof attofD:ey !Ii this matter; after bping' tbe p1li.mtiff, be delivered to the defendant Beal by the clerk. Second. That such. if any, illflfire'private, and are Itotthe propertyof'the togl'ther with 8uch/8sdlil,relate to Maverick Bank transactions, and aTe necessary and ma,t;t,pa1 Lobe intl'Qduct'd by 14r. Potter in his own behalf, be forth with tlelivered t9 lIla'couusel, Mr.;Uuwe. ThatSllch, if any, not included in thl as relate to Ma,verick Bank transactions,,,, in the judgment ottb.e'IMstl'r are or may be material to the issue in said muLion of tbe and the proper presentml'nt of the government's case. be sealeitj'returned to the trunk and the safe custody 'Of ·the clerk. and that the relock the trunk in the presence of the master, rl'turn the key to JII)"'e. and hol,d tbe trpnk and such contents until furthtlrdirectetl. That tbeiJ)Rster, withQut fllrthercbaracterizatlon, report whetber or not he finds anti document.S within the named, and. what disposition has been m'Me thereof. The examination contemplatt'd by this order is to he considered lIS part of the preliminary hl'arillg, or, in olher words, in aid thereof, . a.nd is designed to enahle ttleparties to lay evidence before the court in a l'ri. vate and rt'Bsonable manner, the natureo' the CBse being such that it would be unrllllsonable to ask or permit it to be done in a public manner. Upon report,.tl1e parties will be further heard as to the proper use and disposition of if. allY, papers and other tbings 81,1 are material to the govern ment's case. I Tbe examinationberein provitled for Is to be private, and no pUbli,city whatevn Is to begiventb It except such as is conveyed through the report of the·mll8tel', of the clllU'acter IndicatE'd. ,Before the examination contemplated bytbis.order, the parties and their coun8el may. in the presenl'e of each otl,ler. or separately. if, t.hey so agree, make such explailation to the master as the-y desire as to thecha.racter of the papers, and until such examination and report. or until the foregoinlo{ order is vacated or mudified, all parties are strictly enjoined from intetfering in any way with the trunk or ita oontents."'·'.

ana

lant. , Edward W. Hutchi'M. Henry Wheeler,and .M-ank D. Allen, for defendant Beal.

From this order, plaintiff took the present appeal. Henry D. Hyrh, M. F. DWkinson, Jr., and El'TT/6 P. HO'I.tM, for appel-

Frank D· .Allen, U. S.Atty., pro Be. Before.CoLT and PUTNAM, Circuit JUdges, and

NBLSON,

District Judge.

PuTNAM, Circuit Judge. The order of the cirouit court provides that, without proof, and without hearing the parties, except the explanation authorized by it, the m8:ster shall make a secret, private examination 01 the contents of the trunk in question in this case; noHor informing the court or counsel, but for distribution. He is directed to divide the conients into three parts, delivering one to complainant, one t() the original Beal, and l'etjlrning thei third into court for the purpose 01 further CQnsideration.This 80 clearly violates the constitutional and fundamental rights Qf litigants. as to the method of trial, that it is to be presumed the learned judge wh() entered the order had reason to understand it would be accepted by all interested al a matter of convenience; though to provide for aU continiencies. he. both in 111S opin-

50 F. 860 -

50 F1d 860

tt. 1891.)