United States v. National Lead Co.

• Decision Date: 16 June 1896
• Citation: 75 F. 94
• Parties: UNITED STATES v. NATIONAL LEAD CO.
• Court: U.S. District Court — District of New Jersey

75 F. 94

UNITED STATES v. NATIONAL LEAD CO.

United States Circuit Court, D. New Jersey.

June 16, 1896

J Kearney Rice, U.S. Dist. Atty., for the motion.

Charles A. Hess, opposed.

GREEN District Judge.

The plaintiff has filed a petition, duly verified, in the above-stated cause, setting forth, among other things, that the action was brought to recover certain moneys from the defendant, which it had obtained under alleged mistake arising on the following facts: The defendant is a manufacturer of various compounds of lead, and for its business imported large quantities of lead ore, upon which were paid the duties lawfully levied by force of the statute in such case made and provided. This lead ore was used in the manufacture, among other things, of white lead, exported to and sold in foreign countries; and under the provisions of the statute referred to the defendant claimed from the plaintiff and was allowed and received large sums of money portion of the duties theretofore paid upon the lead ore, by way of drawback or rebate, for the reason that the imported ore was not used in any product sold in this country, but was the component part of a product manufactured for export only. This allegation of the defendant, it is said, was false, and constituted a fraud upon the plaintiff. And thereupon, to quote the language of the plaintiff 'said action was brought to recover the sum of $29,847.35, together with interest thereon from March 25, 1894, money had and received by the defendant for the use of the plaintiff, and being the amount of certain drawbacks or allowances on the exportation of certain materials exported by the said defendant, and wrongfully, illegally, fraudulently, and deceitfully claimed and obtained, and which were so received by the defendant, of and from the said plaintiff. ' The petition further alleges that the books of the defendant alone contain the actual statement of the materials used in the shipments for which the drawbacks were obtained from the plaintiff by the defendant; that the plaintiff has no record of what was actually done with the lead ore imported by the defendant, and alleged to have been used in the manufacture of the white lead so exported; and that without an examination and inspection of the books of the defendant before trial it would be impossible for the plaintiff to prepare its case for presentation to the court. The prayer of the petition is that the court would make order that the plaintiff have liberty, under the supervision of the court, to examine before trial all the books of the defendant by what name soever the said books may be called, wherein are entered and recorded the importations and withdrawals for export of lead, upon which said drawbacks had been claimed and allowed. This petition, and the motion which is made in accordance with its prayer, are authorized, it is contended as well by the 157th section of the practice act of New Jersey (Revision, N.J. p. 873) as by the 724th section of the Revised Statutes of the United States. But the practice which obtains in the courts of this state cannot be invoked in this case; for, although it is quite true that, as a whole, the practice which prevails in the highest courts of the state prevails here as well by force of federal legislation as by virtue of a rule of this court, yet it is equally true that, when congress has legislated upon a matter of practice for the federal courts, such legislation becomes the sole and supreme guide, to the exclusion of the state code. Beardsley v. Littell, 14 Blatchf. 102, Fed.Cas.No. 1,185; Easton v. Hodges, 7 Biss. 324, Fed.Cas.No. 4,258; Parsons v. Bedford, 3 Pet. 433; McNutt v. Bland, 2 How. 17. Now, as it happens, congress has legislated upon this very subject of the production of books and documents in the possession of the parties litigant. Section 724, Rev. St. provides that:

'All courts of the United States shall have power on the trial of actions at law, on motion and due notice thereof being given, to require the parties to produce books or writings in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceedings in chancery.'

Within the terms of this statute alone must be found, then, the right of the plaintiff to ask for and receive the discovery it seeks; and it is quite apparent that the motion as it is now made, or as it is expressed in the petition, cannot be granted. The application is that the court should require the defendant to produce now, immediately, before trial, certain books alleged to contain matters immediately, before trial certain books alleged to contain matters pertinent to the issue, that they may be examined...