Neidlinger et al. v. The Insurance Company of North America. v. The Commercial Ins. Co., in this case the evidence forbids the conclusion that sea water was ever communicated to any sacks except the 5,360 sacks that displayed marks of the contact of sea water. It is, therefore, impossible upon the evidence in this case to hold that the disputed damage was occasioned by the actual contact of sea water with a part of the article insured. Nor can a shipment of grain in bags be deemed to consist of a single article. In a case of insurance upon hides before the Supreme Court of the United States (Bias v. The Chesapeake Ins. Co., 7 Cranch. 416) the insurance was described as an "insurance in gross on a cargo consisting of a distinct number of articles."If such be the character of an insurance upon hides, certainly an insurance upon grain in sacks cannot be said to consist of a single article. But it is said, if this be an insurance of many different articles in gross the different kernels of grain constitute the articles of which it is composed, and inasmuch as it would be absurd to suppose an intention by the warranty to compel the insurer to show actual contact of sea water with each kernel of grain, it must have been the intention to treat the barley as consisting of a single article when applying the provision of the warranty. If this were the intention no advantage would result to the libellants, for, as before stated, the damage in dispute did not result from the contact of sea water, but from the contact of vapor. Besides, policies of insurance are commercial contracts, to be construed and applied in view of the methods pursued by the merchants in their dealings with each other, and among merchants no notice is taken of the possibility that some of the kernels in a sack of grain that is wet may escape contact with the water; but in the absence of evidence to the contrary they act upon the assumption-sufficiently accurate for all practical pur Neidlinger et al. v. The Insurance Company of North America. poses that when sea water comes in contact with a sack of grain it will by absorption be brought in contact with all the grain in the sack. And in such case they would, when ascertaining the part damaged, treat each sack as constituting a single article. The more reasonable supposition, therefore, is, that it was the intention of the parties to this contract that in applying the warranty each sack of grain should be deemed a distinct article. So understood, the warranty will read: "This grain is warranted free from damage or injury from dampness, unless such dampness be caused by actual contact of sea water with the damp sack." If the policy had contained a warranty so worded it would scarcely have been claimed that the insurer was liable for any damage outside of the 5,360 bags which showed marks of the actual contact of sea water. My conclusion, therefore, is that the libellants have failed to show that a loss equal to 20 per cent of the value insured was occasioned by any peril insured against, and their libel must, therefore, be dismissed, with costs. For libellants, W. W. Goodrich. For respondents, C. A. Hand. The United States v. Thomas F. Youngs et al. Southern District of New York. FEBRUARY, 1879. THE UNITED STATES vs. THOMAS F. YOUNGS ET AL. EVIDENCE.-PRODUCTION OF BOOKS AND PAPERS BY THE UNITED STATES. Although a bill of discovery will not lie against the United States, y.t under U. S. Rev. Statutes, section 724, which is a re-enactment of the statute of 1789, Ch. 20, section 15, the United States will be compelled to produce the official weigher's returns of the weight of merchandise, on the motion of a defendant sued for a balance of duties alleged to be due thereon, the defence being that the duties are fully paid, and the motion being supported by affidavit that an inspection or copies of the returns is necessary to enable the defendant to prepare for trial: The remedy given by the statute is not confined to production of books and writings upon the trial. CHOATE, J. This is a suit to recover a balance of duties alleged to be due to the United States on certain sugars imported by the defendants. The answer alleges that the sugars were weighed by the government weighers and their true net weights so ascertained were duly entered in books of the government, and that the defendants have fully paid the duties on such weights. This is a motion to compel the production by the plaintiff of the official weighers' returns of the weights of the sugar, and the motion is supported by affidavits showing that an inspection or copies of these returns are necessary to enable defendants to prepare for trial. The right to this discovery is claimed under U. S. Rev. Statutes section 724, and also under section 805 of the N. Y. Code. The United States v. Thomas F. Youngs et al. Rev. Statutes section 724, which is a re-enactment of section 15 of the Act of 1789, Ch. 20, provides that: "In the trial of actions at law the courts of the United States may, on motion and due notice thereof, 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 proceeding in chancery. If a plaintiff fails to comply with such order, the court may, on motion, give the like judgment for the defendant as in cases of non-suit; and if a defendant fails to comply with such order, the court may, on motion, give judgment against hin by default." In the case of The Central Bank of Georgetown, etc., v. Tayloe, 2 Cranch C. C. 427, it was held that the production of books and papers under this statute could be compelled before the trial, and to enable the party to prepare for trial as well as upon the trial. And in this circuit the practice has followed this construction of the Act (Jacques v. Collins, 2 Blatch. C. C. 23; Funch v. Riddlemen, Id. 301); although in the cases of Iasigi v. Brown, 1 Curt. C. C. 401, Mr. Justice Curtis held that the production of papers could only be compelled at the trial. It is objected on the part of the plaintiff, that the books called for would not be in themselves evidence for the defendants, but the statute surely is not limited to those documents that prove themselves. As to most books and papers the production of which is compelled on motion or by bill of discovery, they are only admissible in evidence in connection with the testimony of a witness or witnesses. And in this case there is no doubt of the pertinency of these weighers' returns in connection with the testimony of witnesses who may be called. It is evident that an inspection or copies of The United States v. Thomas F. Youngs et al. these documents are necessary to enable the defendants to prepare for trial. It is further objected that the documents called for are not in the possession of the district attorney but in the custody of the collector of the port, an independent officer of the Government, holding them under statutes imposing this duty upon him. I cannot perceive that they are any the less "in the possession or power" of the United States on that account. The government here suing as plaintiff has many agents, like a corporation, but whatever is in the official custody of its agents is in its possession or power as truly within the meaning of this Act as the books of a corporation are within its possession or power, though lodged with particnlar officers whose duty as to the custody of such books may be defined or prescribed in the charter or by-laws of the corporation. There seems to be no reason for excepting the United States from the operation of this Act. It is not expressly excepted. The reasons for granting the relief apply with equal force to suits in which the Government is a party as to suits between private persons. The reference in the statute to proceedings in chancery, evidently meaning by bill of discovery, is not used as limiting or designating the parties. against whom the power of the statute may be invoked. It appears merely to and is used to define the cases and circumstances under which the power will be exercised, that is to say, the evidence must be of that kind which can be compelled by a bill of discovery and the circumstances necessary to be shown upon a bill of discovery as to the relevancy of the evidence and the necessity for its production, etc., must be shown to compel its production on motion. The fact therefore that a bill of discovery would not lie against the United States is immaterial. The reason it would not lie is that the United States could not be sued as a defendant, a merely technical |