Dier v. Banton
| Decision Date | 07 May 1923 |
| Docket Number | No. 330,330 |
| Citation | 262 U.S. 147,67 L.Ed. 915,43 S.Ct. 533 |
| Parties | DIER v. BANTON, Dist. Atty. of New York County, et al |
| Court | U.S. Supreme Court |
Mr. Nash Rockwood, of New York City, for appellants.
Mr. John Caldwell Myers, Asst. Dist. Atty., of New York City, for appellees.
This appeal is from an order of the District Court for the Southern District of New York discharging a rule nisi and refusing an injunction. On January 14th a petition in involuntary bankruptcy was filed against Elmore D. Dier and others, partners, as E. D. Dier & Co. Two days after the filing of the petition, Mandred Ehrich was appointed receiver of the estate of the alleged bankrupts, and they and their servants were directed to turn over all their property, assets, account books and records, and were restrained from suing out of any other court any process to impound or take possession of them. This order was complied with and the receiver took possession of the books and papers of the alleged bankrupts and of the firm. On February 16th, Dier informed the court that the district attorne of New York City had applied to the receiver for the production of these books and papers before the grand jury, and asked for the rule nisi against the receiver and the district attorney, and upon a hearing thereof an injunction to prevent the use of such books and papers against him before the grand jury, on the ground that they would incriminate him and that his right to refuse to testify against himself under the Fourth and Fifth Amendments would thus be violated by the process of the federal District Court. Judge Learned Hand, sitting in bankruptcy, discharged the rule and refused to enjoin the proposed use of the books. Judge Hand's action was based on the ruling of this court in Johnson v. United States, 228 U. S. 457, 33 Sup. Ct. 572, 57 L. Ed. 919, 47 L. R. A. (N. S.) 263. He quoted the language used in the Johnson Case:
'A party is privileged from producing the evidence, but not from its production.'
He alluded to the circumstance that in the Johnson Case there were both title and possession in the trustee, whereas in this case the books and papers were in the hands of the receiver, who has no title; but that, he said, made no difference. We agree with this view, and hold that the right of the alleged bankrupt to protest against the use of his books and papers relating to his business as evidence against him ceases as soon as his possession and control over them pass from him by the order directing their delivery into the hands of the receiver and into the custody of the court. This change of possession and control is for the purpose of properly...
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