ldEALE"X V. HETBOPOLITU LIF.Ill INS. 00.
MEALEY v. METROPOLITAN LIFE INS. CO.
(Circuit Court, D. Rhode Island. February 26, 1885.)
PRACTICE-MoTION TO FILE INSTHUMEN'rS PLEADED IN DEFENSE IN CLERK'S OFFICE-Pun. S'r. R 1. c. ::114, § 45.
In an action on a policy of life insurance defendant filed several pleas, setting out that the statements and answers to certain questions contained in application and medical examination which formed part of the contract of Insurance, were untrue, and the particular statements so alleged to be untrue, and making profert of the application and medical examination. Plaintiff moved for an order on defendant to file the application and medical examination in the clerk's office. Held, that the motion could not be granted.
Motion for Production and Filing of Certain Papers. W. F. Angell and C. Bradley, for plaintiff. W. G. Roelker, for defendant. CARPENTER, J. 'rhis is an action on a policy of life insurance; and the defendant files several pleas setting out that the statements and answers to certain questions contained in the application and medical examination, which form part of the contract of insurance, are untrue, and specifying the particular statements so alleged to be untrue, and making profert of the application and medical examination. The plaintiff now moves for an order on the defendant to file the application and medical examination in the clerk's office. The motion is not properly framed as a demand of oyer, since the order granting oyer would provide only that the plaintiff have a copy of the instrument, and not that the original instrument be put on file. The motion has, however, been argued as though it were a proper demand of oyer, and in that light I have considered it. In the first place, it is to be noted that the plea does not show that the agreement is under seal, andl'consequently, profert was unnecessary, and oyer cannot be demanded. The authorities cited by the defendant abundantly sustain this position. 1 Chit. PI. *430, *431; Sneed v. Wister, 8 Wheat. 690. Indeed, the order here af!ked seems to be prohibited by implied exclusion, by the twenty-third law rule for this circuit, which reads as follows:
"Oyer of all spe(lialties declared on may be had on motion at the return term, but not afterwards, unless by special order of court, on affidavit of special cause."
It was, however, the practice of the English courts, and is the practice with us, in cases where oyer is not demandable, but in which the court can see that a knowledge of the instrument in question is proper and necessary for either party, to make an order that he have a copy. But in the practice of the courts of Rhode Island, which is followed by this court, the proceeding to be taken in order to obtain an order of this kind is prescribed by the law of the state in Pub. St. c. 214, § 45, which is as follows:
Whenever either party to any proceeding at law or equity in the supreme court, or to any proceeding at law in the court of common pleas, shall set
· FEDERAL ..:REPORTER.
forth in writing, under oath, upon his knowledge or belief, that the opposite party is in the possession or control of some document to which the applicant is entitled, such court or a justice may order such opposite party, or if the same be a body corporate, then some officer thereof, to make answer on oath at or before a time to be fixed in said order, as to what document he so has relating to the matter in dispute between the parties, or what he knows as to the custody of such document, and if in his possession or control, whether he objects to the prOduction of the same and the grounds of such objection; and thereupon such court or justice may require the production of said document, or may compel the party having the same in his possession or control to allow tb;e applicant to inspect the same, and, if necessary, to take examined of the same; and may make such further order thereon as shall be just. Thl's motion is not framed in accordance with the statute, and it must be dismissed.
In f'e Account of DISTRICT ATTORNEy.1
(District Court, E. D. Missouri. January 30, 1885.)
DISTRICT A'I'TORNEY'S J!'EES-SECTION
838, REV. ST., CONSTRUED. Expenses and services of district attorneys, in examining revenue reports upon which no actions are thereafter instituted, fall within the rule for compensation prescribed by section 838 of the Revised Statutes.
William H. Bliss, U. S. Dist. Atty., per set . TREAT, J. An account of the United States district attorney is presented. for the certificate of the judge, nnder section 838, as to certain cases enumerated. Under section 824 his fees in most cases become certain, as the COtlrt records show them; yet there are many concerning which evidence dehors the court records are necessary, viz., presence before commissioners, travel, etc. It is important to look at the dates of the statutes, so that the imperfections or mischiefs to which later statutes are aimed may furnish guides for interpretation. Under section 824 (looking to the dates of the acts consolidated) the district attorney was allowed fees only in cases actually instituted in this court, o.r with respect to proceedings before United States commissioners, and attendant travel. It became apparent to this court, years ago, that such proceedings before United States commissioners were liable to abuse, involving injury to parties proceeded against, and instituted, it might be, to give fees to deputy-marshals and commissioners, and involving unnecessary fees and traveling expenses for the district attorney. Hence the following rule of court was made, and later the proper department suggested a like rule for all United States courts: In every criminal proceeding before a United StaLes commissioner, he shall, before issuing snbprenas for the hearing of the case, cause the proper United States district attorney to be informed thereof, and await a reasonable time
Reported by Benj. F. Rex. Esq., of the 8t. Louis bar.