ARNOLD V. CHESEBROUGH. ARNOLD and others v. CHESEBROUGH' and others.'
(Circuit Court, E. D. New York. January 11,1887.)
InEqUity. GeOrge W. Norris, for complainants. Bliss & &h1ey, for defendants. BENEDICT,J. In this case several questions which have arisen upon the taking of the testimony before an examiner have been presented to me for decision. The first question is whether the plaintiff can require the defendant Charles A. Chesebrough, when examined as a witness for the plaintiff, to produce certain papers admitted to be in his custody, or in the custody of his counsel for him. It appears that on a former ocCasion when one Harran was examined as a witness for the plaintiff in this case, the defendant's counsel exhibited to Harran what purported to be a signature attached to certain papers, and inqUired of the witness whether the signature was his. As to some of the signatures Harran was unable to'state; as to others, he said the signature was his. The papers were thereupon marked for identification by the examiner, and retained by the defendant's counsel. Upon these facts the plaintiff now claims the rigpt to inspect the papers the signatures of which were so exhibited to I have often ruled at ni8'i prius that the exhibition of a paper toa witness on the stand entitles the other side to an inspection of thE! paper so shown the witness. This ruling has not proceeded upon the ground that a paper becomes evidence in a cause by the mere proof of itsexecutioD,. but upon the ground that a party is entitled to be intranspires between his opponent· and a witness while formed
by Edward G. Benedict, Esq" of the New York bar.
on the stand. The mere exhibition of a paper to a witness on the stand does not make the paper evidencl;l, nor does it entitle the opposite party to a possession of the paper; but such an exhibition does! in my opinion, entitle the opposite party to see th'e paper so exhibited. A door for great abuse is opened, as it seems to me, if one party can exhibit to a witness on the stand a paper, and keep the opposite party and the court in ignorance as to what was written on the paper. To prevent an improper communication to a witness while being examined is the reason of the ruling, and the reason seems to me to be sound. But I do not the plaintiff, in applying for the productiori of ,the papers in see question, brings himself within the rule. The papers were not shown only what purporte<,l to be the signature to the papers, the witness, and an inspection of that alone is not what the plaintiff deshes. It. might be convenient, for the plaintiff to 'have the papers themselves, for the no foundation for a right purposes of cross-examination, but ithat opposite party. As to the papers to require their production by one where themselves, I do not see but that the position is the notice to produce is given, and,on tailure to produce,parol e\7idence of the,contents,admitted.,,' , The second question arises as·'fol}ows: The issue in the case is whether one Josephine Cregier was the' wife of one Blasius Chesebrough, now de.ceased. The defendant Charles A.' Chesebrough, executor of Blasius, has in his possession as executor certain papers,-such as letters o/Josephine to Blasius, the alleged husband ;Jetters of Josephine to her mother; and certain hotel bills, apparently paid by Bla,sius, 81,ld tending to the relation between Blasius and Josephine,-which he is required by a , 8'UlJpmna tecum to produce.., 'rl),e papers, it is insisted by the counsel for the plailltitf, afford $iirect'evidl(nce in suppor(of the averment in the bill of a between Blasius and Josephine, and may bE:. produce.d in court by a 8'UlJpama duces and, may be proved by the defendant as a,witness for the plaintiff.", The prod\;lCtion of the papers at this time u,Pon the flole ground that the of Josephine has, not yet been t,aken in support of the bill, and that ,when she the defendant, is entitled to have her testiPlony given withont inspection oftltese papers,b,ecause in that way Counsel for the defendant: offers her veracity wi1l,be thebetter .' to produce the papers riow, if the,pllilJJtiff will disclaim an intention to call Josephine asa witness,andaIsq deposit the paperS innny way that may toprev.en,t the possibility oftheil' or ,stru.ction in the mean time; but he fnsists, in the interest of justice, that he to retain the papers in order to prevent their in.' Tlfis is, spection by tbe witness Josephine prior to her to the difleretion of the court. .·Oonsidering the natjf toe .witness Josephine, ure of the co,ritroversy, it seeIIls to, me whose it is plain, is largely ;nvolved in shoUJd .give her. testhnpny, at least. so far as relates to her xnarriage, witpol,lt previous inspection of these papers, the court would be the better' able to judge of her .veracity. Such being my opinion, I decline the
UNITED STATES V. M"LAUGHLIN.
present to direct the defendant to produce the papers. Any order for their preservation or safe-1\eeping will be made that may be proper. The third question relates to the right of the plaintiff at this stage of the case, before any adjudication upon the question of marriage, to go into the examination of Charles A. Chesebrough in regard to his disposition of the proceeds of the estate in question. The' defendant objects to any inquiry on the part of the plaintiff .aL this stage of the case as to the investment of any money of' the estate until the determination by the court of the primary question upon which the plaintiff's right to the money depends, viz., the question of marriage between J oSfJphine and Blasius. The question, it will be observed, is not as to perpetuating the testimony of Charles A. Chesebrough, but simply whether, in this stage of the case, prior to any determination of the question of marriage, which lies at the basis of the plaintiff's right to recover, an inquiry can be gone into as'to the disposal of the proceeds of the estate by the defendant Charles A. Chesebrough.. In my opinion this is premature; it should be postponed until after the decision of the court upon the principal question, viz., the question of marriage.
McLAUGHLIN and others.
(O'irIlUit Oourt, N. D. CaliforniAJ. December 18, 1886.)
CENTRAL PACIFIO RAILROAD GRANT
The map ofthe route of the Western division ofthe Central Pacific Railroad, filed with the secretary of the interior, December 8, 1864, is the map of the, general route, and not of the line as" definitely fixed, " within the meaning of the 'land-grant act of 1862. '
The map of the route of said road, as finally located and constructed, filed .with the secretary of the interior, February 1, 1870, and accepted as such by , that officer, is the map of definite location. 8. SAME. The :MoQuelamos grant was finally rejected, February 18, 1865, after which the lands within the exterior boundaries of the grant cel\osed to be sub judioe, and became public lands, to the odd sections of which, within 20 miles of the line of the road, the right of the railroad company attached. and became indefeasible, immediately upon the filing of the map of definite location of the road, and,the acceptance thereof as such by the secretary of the interior.
MattllrB of estoppel as to lands lying east of range line, between ranges 7 and 8 E.; Mt. Diablo meridian, discussed.. ' If. B.um. The withdrawal of the lands upon filing the map of the general route of tha road. for 25 milesQn llach side of the line indicated. protected the lands agai;nst,the attaching of any other right as against railroad company, until theftling of the map ofdetlnitlliocation. ., (ByllabU8 b1Jthe Court.)