books, papers, and accounts at the trial of the action. Justice Washington granted a rule nisi.

In Iasigi v. Brown, Fed. Cas. No. 6,993, 1 Curt. 401, decided in 1853, Mr. Justice Curtis, sitting in circuit for the district of Massachusetts, said:

"By the common law a notice to produce a paper merely enables the party to give parol evidence of its contents, if it be not produced. Its nonproduction has no other legal consequence. This act of Congress has attached to the nonproduction of a paper ordered to be produced at the trial, the penalty of a nonsuit or default. This is the whole extent of the law. It does not enable parties to compel the production of papers before trial, but only at the trial, by making such a case and obtaining such an order as the act contemplated. The application for such an order may be made, on notice, before trial. There is a manifest convenience in allowing this. But, at the same time, I think the court should not decide finally on the materiality of the paper, except during the trial, because it would occupy time unnecessarily, and it might be very difficult to decide beforehand whether a paper was pertinent to the issue, and whether it was so connected with the case that a court of equity would compel its production. These points could ordinarily be decided without difficulty during a trial after the nature of the case and the posture and bearings of the evidence are seen."

It was further said in this case that the correct practice seems to be that, after the moving party has made a prima facie case for such an order, he shall enter an order nisi, leaving it for the other party to show cause at the trial.

As already stated, a number of cases may be cited in which orders to produce books or writings before trial were made. The most exhaustive review of the decisions on both sides of the question contained in any single case is to be found in Bloede Co. v. Bancroft & Sons Co. (C. C.) 98 Fed. 175. In that case it was held that a federal court may make an order to produce before the trial. In the opinion of the learned judge who decided that case there is, however, no reference to Bas v. Steele or to Dunham v. Riley. The penalty incurred by one who fails to produce books under an order made pursuant to section 724 may be a judgment in the action against him. If the order be to produce at the trial, and the party against whom it is made fails to comply therewith, or, producing the books, insists that they are not admissible, the ruling of the court awarding judgment against the defaulting party for nonproduction, or its ruling on the question of the admissibility of the books, may be the subject of a bill of exceptions and be reviewed on a writ of error bringing up the final judgment in the action. But if the order be to produce before the trial, and the party against whom it is made defaults, how can judgment of nonsuit or judgment by default be entered? A judgment must be founded on a record that will support it. An order to produce before the trial constitutes, at common law, no part of the record of the action. Neither can it be excepted to. It is well-settled practice in our federal courts that the assignments of error in an action at law are founded only on the record of the case and the bill of exceptions taken in the course of the trial. Storm v. United States, 94 U. S. 76, 24 L. Ed. 42; Suydan v. Williamson, 20 How. 433, 15 L. Ed. 978; New Orleans Railroad v. Morgan, 10 Wall. 261, 19 L. Ed. 892; Insurance Co. v. Piaggio, 16 Wall. 386, 21 L. Ed. 358. Originally the record of an action at law

consisted only of the process, pleadings, verdict, and judgment, and the only errors reviewable on a writ of error were those apparent on the face of such a record. 3 Ency. Pl. & Pr. 378. By St. 13 Edw. I, c. 31, authority was given to take bills of exceptions to the rulings of judges at trials. Bacon's Abridg. Tit. "Bill of Exceptions"; Bulkeley v. Butler, 2 B. & C. 434, 444; Pomeroy's Lessee v. Bank of Indiana, 1 Wall. 592, 599, 17 L. Ed. 638; Wheeler v. Winn, 53 Pa. 122, 126, 91 Am. Dec. 186. In some of our states an order striking out pleadings before issue joined, and the like, may now, by statute, be incorporated in the record of an action at law so as to be reviewable on a writ of error. In New Jersey, where, as in the federal courts, the common-law practice prevails, it has been held that, if a plea be struck out as sham or frivolous, the order cannot be reviewed on a writ of error for the reason that it constitutes no part of the record. In Brown v. Warden, 44 N. J. Law, 177, the highest court of that state said:

"The right to overrule and suppress pleadings as sham and frivolous has existed in the superior courts of common law from time immemorial, and no attempt has ever been made before the present occasion to place such incidental orders for review before an appellate court."

The tenacity with which the federal courts hold to the common-law practice on writs of error is well illustrated by the cases of Campbell v. Boyreau, 62 U. S. 224, 16 L. Ed. 96, and Andes v. Slauson, 130 U. S. 435, 9 Sup. Ct. 573, 32 L. Ed. 989. And in Wright v. Hollingsworth, 1 Pet. 168, 7 L. Ed. 96, it was said:

"The allowance and refusal of amendments in the pleadings, the granting or refusing new trials, and indeed, most other incidental orders made in the progress of a cause, before trial, are matters so peculiarly addressed to the sound discretion of the courts of original jurisdiction as to be fit for their decision only under their rules and modes of practice. This, it is true, may occasionally lead to particular hardships; but, on the other hand, the general inconvenience of this court attempting to revise and correct all the intermediate proceedings in suits between their commencement and final judgment would be intolerable."

See, also, Ex parte Crane, 5 Pet. 199, 8 L. Ed. 92; Evans v. Stettnisch, 149 U. S. 607, 13 Sup. Ct. 931, 37 L. Ed. 866.

To what extent the statutory practice in some of our states of allowing interlocutory orders to be incorporated in the record of an action at law, and error to be assigned thereon, may be permitted in our federal courts under the provisions of section 914 of the Revised Statutes [U. S. Comp. St. 1901, p. 684], it is not now necessary to decide; for no act of the Legislature of the state of Pennsylvania has been referred to, nor have we knowledge of any statute of that state, which provides that an order requiring a party in an action at law to produce books for the inspection of his adversary before trial may be incorporated in the record of the action, or that error may be assigned thereon. So far as we are aware, no such practice in the courts of the state of Pennsylvania exists. And Congress has prescribed no such practice for the federal courts. It seems clear, therefore, that if a party who is ordered to produce books before trial defaults, and a judgment is entered against him merely for that reason, the judgment would necessarily be reversed, on error, for want of a record to support it. A con

struction of section 724 which limits the power of the court to an order to produce books at the trial leaves the party against whom the order is made in a position where he may take exceptions to the rulings of the court at the trial, requiring obedience to the order, or concerning the admissibility of the books, and thereby secure a record on which a writ of error will operate. But an order to produce before trial, if it be disobeyed, will be wholly nugatory, for the reason that the penalty prescribed by the section-the entry of judgment against the disobedient party-cannot be lawfully imposed. If this be not so, then an erroneous ruling of the court made at the trial upon an order to produce at the trial may be corrected by an appellate tribunal, while it cannot be in the case of an erroneous ruling concerning an order to produce before trial. A construction leading to such diverse results does violence to the language of the section which authorizes an order to produce only "in the trial of actions at law." We conclude, therefore, that section 724 does not confer the power to require a party to produce books before trial. If a party to an action at law desires inspection of books in his adversary's possession before trial of the action, he is left to his chancery remedy by filing his bill for discovery. The third question is: May the defendant in a civil action brought to recover damages for a violation of any of the provisions of the interstate commerce act be required, under section 724, to produce its books even at the trial? It is insisted by the plaintiffs in error that this case falls within the operation of the general rule that equity will not compel a party to disclose facts which would tend to expose him to criminal punishment, or to penalties, fines or forfeitures, and that as no order requiring parties to produce books can be made under the authority of section 724, except "in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery," the order now under review, even in so far as it requires production of books at the trial, is void. Section 8 of the interstatecommerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 382 [U. S. Comp. St. 1901, p. 3159]) provides that a common carrier violating any of its provisions "shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this act, together with a reasonable counsel fee or attorney's fee to be fixed by the court in every case of recovery, which attorney's fee shall be taxed and collected as part of the costs in the case." And section 10 (24 Stat. 382 [U. S. Comp. St. 1901, p. 3160]) provides that any common carrier that shall willfully violate any of the provisions of the act, or shall be guilty of any infraction of it, "shall be deemed guilty of a misdemeanor," and subject to a fine not exceeding $5,000 for each offense. If the books of a defendant will tend to prove a particular violation of the act in a civil case instituted under the authority of section 8, they will also tend to prove the same violation in a criminal case founded on section 10.

But a corporation is not a natural person. It is a creature of the state. It possesses no powers or franchises except those conferred upon it by the state. When it accepts its charter from the state, it voluntarily subjects itself to all the obligations and duties constitutionally imposed upon it by the state. So, when it engages in interstate

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commerce, it is subject to all the regulative provisions concerning such commerce constitutionally prescribed by Congress. Whether it may not, in a case like the present one, be compelled to produce its books and papers at the trial of a civil action against it, even if such production shall disclose criminal acts by it, is a question that has not been argued. There is, also, in this connection, another question that has not been argued, and that is whether a corporation, in a case like this, may refuse to produce its books or papers because of the provision of the fourth amendment of the Constitution against unreasonable searches and seizures, or of the provision of the fifth amendment that no person shall be compelled to be a witness against himself. In Hale v. Henkel, 201 U. S. 43, at page 70, 26 Sup. Ct. 370, 377, 50 L. Ed. 652, Mr. Justice Brown said:

"The question whether a corporation is a 'person' within the meaning of this [the fifth] amendment really does not arise, except, perhaps, where a corporation is called upon to answer a bill of discovery, since it can only be heard by oral evidence in the person of some one of its agents or employees."

On pages 75 and 76 of 201 U. S., on page 379 of 26 Sup. Ct., he said:

"Although, for the reasons above stated, we are of the opinion that an officer of a corporation which is charged with the violation of a statute of the state of its creation, or of an act of Congress passed in the exercise of its constitutional powers, cannot refuse to produce the books and papers of such corporation, we do not wish to be understood as holding that a corporation is not entitled to immunity, under the fourth amendment, against unreasonable searches and seizures."

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On page 7 of 201 U. S., on page 380 of 26 Sup. Ct., Mr. Justice Harlan declared that, in his opinion, a corporation is not embraced by the word "persons" in the fourth amendment. On pages 82 and 83 of 201 U. S., on page 382 of 26 Sup. Ct., Mr. Justice McKenna leaves open the question whether a corporation can claim immunity under either the fourth or the fifth amendment. And on page 88 of 201 U. S., on page 384 of 26 Sup. Ct., Mr. Justice Brewer says that:

"The fact that a state corporation may engage in business which is within the general regulating power of the national government does not give to Congress any right of visitation or any power to dispense with the immunities and protection of the fourth and fifth amendments.'

These varying expressions of opinion emphasize the impropriety of any expression of opinion by us, n the third question above stated, before counsel shall have given us the aid of full arguments thereon. Furthermore, the question is not now properly before us. Objections to an order to produce books at the trial should be made, as in the case of a subpoena duces tecum, at the trial, when, as already shown, exceptions to the rulings of the trial court may be taken as the foundation of a writ of error bringing up the final judgment in the action.

The fourth question is: Is not the order of the Circuit Court void for failure to describe with sufficient definiteness the books and papers required to be produced? And the fifth, and last, question is: Is not the order erroneous because of the allegation of the defendant that its books have not been so kept as to show what rebates, drawbacks, compensations, or concessions it has allowed to the several parties

named in the plaintiff's petition? Neither of these questions is now properly before us. Like the third question, they may, perhaps, be properly raised on an order directing the defendant corporation to produce its books at the trial of the action, but even in such case they can be raised only at the trial.

Having reached the conclusions above expressed, it follows that the motion to dismiss the writ of error must be denied, and that the judgment of the circuit court must be reversed, with costs, and it is so ordered.

BUFFINGTON, Circuit Judge (dissenting). This court in my judgment, has no jurisdiction on this writ of error. I therefore dissent. In the Circuit Court the Mitchell Coal & Coke Company brought suit against the Pennsylvania Railroad Company to recover damages for alleged violations of the interstate commerce act. On petition of the coal company, and in pursuance of alleged power under Rev. St. § 724, that court, after hearing on answer made by the Pennsylvania Railroad Company alone (the plaintiffs in error making no answer or objection), ordered that certain books and records of that company be produced by its officers at the trial and also prior thereto at the railroad company's own office for inspection and making copies thereof. This order the railroad company neither excepted to or appealed from. That such an order was interlocutory and not appealable is held in Logan v. Pennsylvania R. R. Company, 132 Pa. 403, 19 Atl. 137, a decision adopted in Alexander v. United States, 201 U. S. 122, 26 Sup. Ct. 356, 50 L. Ed. 686. To the entry of such order, however, the plaintiffs in error, who were the officers of the railroad company named in the order, excepted as individuals, and have removed to this court by writ of error the record in the case. Now, these plaintiffs in error have no property in the books, being the mere custodians thereof as officers of the railroad. They made no answer in the proceedings below. Their rights were not involved, considered, or adjudicated, and no disclosures are now sought from them. Indeed, as mere custodians of the books and papers in question as officers of the railroad, they bear an even more remote relation to the case below than did the plaintiffs in error in Nelson v. United States, 201 U. S. 115, 26 Sup. Ct. 358, 50 L. Ed. 673, of whom it was said:

"These writs of error are not prosecuted by the parties in original suit, but by witnesses, to review a judgment of contempt against them for disobeying orders to testify. Being witnesses merely, it is not open to them to make objections to the testimony. The tendency or effect of the testimony on the issue between the parties is no concern of theirs. The basis of their privilege is different from that, and entirely personal."

Seeing, then, that these plaintiffs in error are not parties to the case between the coal company and the railroad company, they are not concerned in that controversy or affected by its disposition. It is clear that their controversy is wholly one between them and the sovereign power acting through one of its courts (Alexander v. United States, supra), which court has ordered them, as officers of a third party, to produce certain books of such third party in their custody. And it is equally clear that that court has yet made no order against them in that