Under this law, the defendant Louis Schwabacher was obliged to appear and make his defense in the action, without waiting for service upon his oo-defendants. Therefore, at the time of filing his petition and bond for removal of the case, he stood alone, as if he were the sole defendant. He could not require his co-defendants to join in a petition for removal, nor claim a stay of proceedings. It cannot be claimed that there is a separable controversy between him and the plaintiff; but, from necessity, he should be allowed to exercise his right to have the case removed, because, aEl the case stood at the time of the removal proceedings, he was the only defendant The courts have held that where a defendant who, if sued alone, would be entitled to remove a case into a circuit court of the United States, is prevented from exercising the right by being joined with other defendants not entitled to the privilege, he may, after tbe disability has ceased, by the case being severed as to his. co-defendants. remove the case, even though the time allowed for removal would have been passed .if there had been no such disability. Yulee v. Vose, 99 U. S.539-546; Cookerly v.Railway 00.,70 Fed. 277-280. Bya similar course of reason· ing, I reach the conclusion that iIi a case where several defendants have a right to remove a case, and only one of them is brought within the jurisdiction of the state court, and required to defend, he alone may claim the right. If in one case the departure of the co-defendants who have appeared in court removes the barrier to the right of removal, the absence of co-defendantswho have not been brought within the jurisdiction of the state court, at the time' when the right of removal must be exercised or waived, should give the same freedom to 8. defendant, in court, who may desire to exercise the right. The motion to remand will be denied, and the application to amend granted.
OARTER et aI. December 14, 1897.)
(Circuit Court, D. Massachusetts. No. 551.
DISCOVERY-ORDER FOR PRODUCTION OF BOOKS-SHOWING UNDER STA.TUTE.
A plaintiff In an action at law is not entitled, under Rev. St. § 724, to an 'order for the production by the defendant before trial of private books of account for the plaintiff's inspection on an affidavit merely stating that affiant "believes" such books wllI tend to prove the Issues in the mover'. favor, without statIng any grounds for such belief. Query as to the proper practice under Rev. St. § 724.,
Brandeis, Dunbar & Nutter, for plaintiff. Fowler & Prentissl for defendants. PUTNAM, Circuit Judge. This is a motion, based on section 724 of the Revised Statutes, for production in a common-law suit. It prays as follows:
"Now, the plaintiff moves that the defendants be ordered to produce forth. with, before a day certain, for the Inspection of the plaintiff and his attor· neys, and to alIow the plaintiff and his attorneys to inspect, each and all of
CASPARY V. CARTER.
the books and doc\Jments hereinafter mentioned, and that the defendants, upon failure to comply with said'order, suffer judgment by default, viz.: All the books of the concern formerly doing business under the name and style of C. N. Carter; all the books of the defendant Charles N. Carter, kept as guardian of the defendant William W. Carter; all the books and documents in the possession or control of the defendants, or any of them, containing any entries relative to the formation of a limited partnership between the defendants Charles N. Carter and William W. Carter; all books and documents in the possession or control of the defendants, or any of them, containing any entries relative to the .contributions of the defendant William W. Carter to the capital of the alleged limited partnership of C. N. Carter; all books and documents in the possession and control of the defendants, or any of them, containing any entries relative to the disposition made, either immediate or ultimate, of any contributions of the defendant William W. Carter to the capital of the alleged limited partnership of C. N. Carter; the ledger of C. N. Carter for the year 1892; the daybook of C. N. Carter for the year 1892; the journal of C. N. Carter for the year 1892; the cashbook of C. N. Carter for the year 1892; the checkbooks of C. N. Carter for the year 1892; the bank passbooks of O. N. Carter for the year 1892."
The suit seeks to charge one of the defendants as a general partner in an alleged special partnership. It has been the view of the court that it rests on that defendant to prove that he complied with the statute provisions relating to such partnershipsr and the parties have so stipulated. Therefore what the plaintiff now asks for concerns more particularly, if not wholly, the iefense. At a prior stage of the litigation, an application was made to direct the defendant in question to answer certain interrogatories, filed under the Massachusetts statutes; and thereupon we directed that some of them be answered, though, so far as this court is concerned, the law must now be regarded as settled otherwise by the formal decision of Judge Aldrich in Cash-Register Co. v. Leland, 77 Fed. 242. We refused like directions as to other interrogatories, because they involved the production of books. This did not mean that such interrogatories may secure the production of books which cannot be reached under section 724, but that, for the federal courts, that section covers the whole subject-matter in suits at common law, except so far as a subprena duces tecum may be effective. The only substantial allegations as to the materiality of the books whose production is asked is that they "will tend to prove the issue in this action in the mover'sfavor," and "will tend to prove that the defendant in question did not make a bona fide contribution to the capital of the firm." In other words, the plaintiff does not seek discovery of facts, but of matters of evidence which it is supposed will have more or less tendency to establish facts. The extent to which the affidavit accompanyiitg the plaintiff's application goes is that the affiant "believes" the books called for will tend to prove as stated. No basis for the belief is given. The result is that, if the. statute requires that this application be granted, it will always require that, on a mere affidavit of belief, each party to a suit at law may compel from the other party a general production of numerous books and papers in his possession, to enable the moving party to make the attempt to sift out of them circumstances, of more or less importance, tending to support his position as to the lssues in the action. We would thus have a result fundaIIl;entally inconsistent with all hitherto
84F.-27 . . .
84 FEDERAlf REPORTEI't.
rules, whether at law or in'equity,-a power to ,the adverse party, or to the court, to expose, and search a mass of private transactions with the Illere hope of finding therein something relevant to the cause in issue. It is impossible for us to credit that the law is so sweeping as this, and no authority is. produced to show that it is. An affidavit of so general a character fails to sufficiently raise the presumption of materiality required under this statute in Ia,sigi v. Brown, 1 Curt. 401, Fed. Cas. No. and in Merchants' Nat. Bank State Nat. Bank, 3 Cliff. 201, J!'ed. Cas. No. 9,448. In harmony with certain expressions in those cases, a general practice has grownup by which, on a prima facie showing on a summary petition, the court orders production under the statute now in question. This practice,. so far as we are informed,. has not yet received the sanction of the supreme court. The j;!tatute tains an express limitation, in its reference to the "ordinary rules of proceedillg in chancery"; and, by those rules, no production can be of books ordocumeilts which the respondent admits ordered, contain matter relevant to the issues in the cause. All the summary proceedings under the English judicature statutes, relating to, production, sedulously preserve to the party moved against the same protection; with a few special exceptions not affecting the principle However this maybe under section 724 of the Revised Statutes,. we cannot hold that all the bars are thrown down by it, aswoultl be done by granting the present motion, or that the court can properly order production unless it can perceive, at least prima facie and with 'some degree of certainty and particularity, what is to be exposed to search, and the extent of its materiality. This general proposition relieves us from scrutinizing carefully certain particular features of the plaintiff's motion; yet, that we may not be misunderstood, it may be prudent to refer to them. The practice under this statute seems very unsettled, even to the extent tliat the decisions in this circuit are not consistent. We are not required, under the circumstances, to determine whether production ciitn be compelled before trial; but Mr. Justice Curtis and Mr. Justice Clifford apparently differed on this point, as shown by the cases cited. Apparently the books in issue Mre could be reached by subptena duces tecum, and Mr. Justice Clifford in Merchants' Nat. Bank v. State Nat. Bank, ubi supra,' at page 204, ruled that in such cases the court might not apply the special statute remedy. The same has been held in other circuits, but a careful review of the topic would seem to sustain the view of Judge Townsend in Kirkpatrick v. Manufacturing Co., 61 Fed. 46, that such considerations ought not to deprive litigants of the more efficient remedy given by the statute in question. It has nowhere been held that the statute disregards the settled rule of discovery which ordinarily limits it to matters material to the case of the party asking it. .Smith v. Duke of Beaufort, 1 Hare, 507, 520; Wig. Ev. par. 224 et seq.; Daniell, Oh. Prac. "579. W . need not, however, consider the precise limits of this rule, nor whether it is applicable to the peculiar circumstances of this case, as we place our decision on the broader reasons which we have already stated... -Plaintiff's motion, filed September 2, 1897, is denied.
UNION ASSOCIATED PRESS V.TIMES-STAB CO.
trN!ON ASSOCIATED PRESS T. TIMIDS"':STAR CO. BREWER v. SAME. UNION ASSOCIATED PRESS v. OHIO STATE JOURNAL. BREWER v. SAME. SAME v. LOUISVILLE PRESS CO. UNION ASSOCIATED PRESS v. SAME. BREWER v. JOURNAL NEWSPAPER CO. UNION ASSOCIATED PRESS v. SAME. BREWER v. EVENING NEWS ASS'N. UNION ASSOCIATED PRESS v. SAME. BREWER v. COMMERCIAL TRIBUNE CO. UNION ASSOCIATED PRESS v. SAME. BREWER v. HERALD CO. UNION ASSOCIATED PRESS v. SAME. BREWIDR 'f. INTER-OCEAN PUB. 00. UNION MlSOCIATED PRESS v. SAME.
(Circuit Court, E. D. New York.
January 13, 1898.)
IBRVICE OF PROCESS-FOREIGN CORPORATIONS-RESIDENT AGENTS.
A salaried agent of a nonresident newspaper corporation, empowered to solicit advertisements, make contracts therefor, and receive payment, who carries on the business at an office having the name of the newspaper on its windows, Is not "a managing agent," through whom the corpomtion may be served, under Code Civ. Proc. N. Y. t 432. Brewer v. Knapp, 82 Fed. 694, and Fontana v. Chronicle-Telegraph Co., 83 Fed. 824, reversed.
These were 14 actions at law for libel, brought by the Union Assomated Press and by William S. Brewer, respectively, against the Times-Star Company and various other newspaper companies incorporated by states other than New York. The cases were heard on motions to set aside the service of summons. Campbell & Hause, for plaintiffs. Henry W. Taft, for some defendants. Shaw, Baldwin & Stotesbury, for other defendantl!l. LAOOMBE, Circuit Judge. The facts in all these cases are more or leE'S similar to those rehearsed in! Union Associated Press v. Times Printing Co. (Cir. Ct.S. D. N. Y., Oct. 1 and Oct. 29, 1897) 83 Fed. 822, and in Brewer v. Knapp, 82 Fed. 694. Upon consideration of the questions presented, I am by no means so confident that my former decision in the Fontana Case, 83 Fed. 824, was correct, or that Judge several individuals Tenney and myself were right in holding that served with process were "managing agents" of' the defendants. I am, however, more than ever impressed with the importance of having this jurisdictional point decided in each case, before the time of the court is consumed in trying the merits of the controversy. Here we have (including the cases named in the caption and the others on the calendar) nearly 50 libel suits, all brought' by the same parties against different newspapers, located in widely scattered states, with no suggestion that the libel was ever published or circulated here by defendants, or that they have ever done anything more in the way ot business here than to solicit advertisements through some advertising agent, who in most cases acts as advertising agent for several other papers, and has no control over the rates to be oharged or the space to be given. It is hardly to be supposed that congresl!l intended the federal circuit courts to exercise such comprehensive and far-reaching jurisdiction, except when a case coming striotly within the lan1guage of the statute is made out. The proper disposition to make of this entire group of cases would seem to be to grant these motions. By