221 U.S. Argument for Petitioners. Mr. John R. Abney for petitioners: The decision of the court below in the case at bar is in direct conflict with the prior decisions of the Circuit Courts of Appeals for the Third and other Circuits construing said section, and is also in direct conflict with the plain language of the statute. See 1 Annals of Cong. 1846, 48, 49, 80, 74, 659, 903; Journal of Maclay, 74, 85, 117, 150; 1 Annals of Cong. 782-894; Geyger's Lessee v. Geyger, 2 Dallas, 332; Carson's Hist. of Supreme Ct. 184; Hylton v. Brown, 1 Wash. C. C. 298; Bas v. Steele, 3 Wash. C. C. 381; Dunham v. Riley, 4 Wash. C. C. 126; Central Bank v. Tayloe, 2 Cranch C. C. 427; Triplett v. Bank, 3 Cranch C. C. 646; Waller v. Stewart, 4 Cranch C. C. 532. It appears that it became the practice to order the books produced at the trial. Judge Betts of New York, sitting in the Circuit Court, held that the plaintiff could be required to show his papers to the defendant before the trial. He so decided under the influence of the rule which permitted it in the state courts of New York. Jacques v. Collins, 2 Blatch. C. C. 23. But see Finch v. Rikeman, 2 Blatch. 301; Iasigi v. Brown, 1 Curtis, 401; Merchants' Nat. Bk. v. State Bk., 3 Cliff. 201. In 1879, it was held that inspection of books could be had before the trial, under the influence of the state practice. United States v. Youngs, 10 Ben. 264; United States v. Hutton, 10 Ben. 268; but in 1885, it was held, citing Beardsley v. Littel, 14 Blatch. 102, that § 724 did not permit an examination of a party's books before trial. Colgate v. Compagnie Francaise, 23 Fed. Rep. 82; and see also Guyot v. Hilton, 32 Fed. Rep. 743. Thus the question seemed settled in the Southern District of New York that an inspection of books was not authorized under § 724 before the trial. But in 1899 an inspection of books and papers before trial was allowed by the District Judge in Delaware. Argument for Petitioners. 221 U. S. Bloede v. Bancroft, 98 Fed. Rep. 175, and followed by Mr. Justice Lacombe in Gray v. Schneider, 119 Fed. Rep. 474. For other cases on this point, see United States v. Nat. Lead Co., 75 Fed. Rep. 94, 95; Kirkpatrick v. Pope, 61 Fed. Rep. 46, 47, 49; and the Circuit Court of Appeals held that § 724 does not confer the power to require a party to produce books before trial in Cassatt v. Mitchell C. & C. Co., 150 Fed. Rep. 32, 44; and see Penna. R. R. Co. v. Int. C. M. Co., 156 Fed. Rep. 765. Only in connection with the other testimony in a case can the court know what right the applicant has to see books and papers and the relevancy. There is no fairness vouchsafed in a hearing of these questions on affidavits. There is no chance to see and cross-examine the affiants, and it gives an undue advantage to those who are willing to swear anything when there is no cross-examination. From discretionary interlocutory orders in the Federal courts there is no appeal except as to injunctions and reviews. 26 Stats. 828, §§ 6, 7. In a state court there would be. The fact that the statute provides that the party failing to show books shall suffer "nonsuit" or "default," as the case may be, shows that it was to be at the trial. The construction placed upon § 724 by the court below would make it possible in a case pending in New York to require a party living in California to produce his books in New York before the trial, and also at the trial. The act should be construed under the lights then existing.. The petitioners have a right to keep their books and papers a secret under the common law and the Constitution, and § 724 should be construed strictly, like an attachment statute. Entrich v. Carrington, 19 Howell St. Tr. 1029; Boyd v. United States, 116 U. S. 616, 626, 627. 221 U.S. Opinion of the Court. Congress having provided for discovery, there is no other authority. The statute of New York and the practice in that State cannot affect the question. Ex parte Fisk, 113 U. S. 713; Amy v. Watertown, 130 U. S. 301; Pierce v. Un. Pac. R. Co., 47 Fed. Rep. 709. Mr. John W. Boothby, with whom Mr. Ernest E. Baldwin was on the brief, for respondent. MR. JUSTICE LURTON, after making the foregoing statement of the case, delivered the opinion of the court. The question is whether under § 724 of the Revised Statutes, a court of law may compel one party to an action to produce, in advance of the trial, books and papers for examination and inspection of his adversary. Section 724 is substantially the fifteenth section of the Judiciary Act of 1789. It reads as follows: "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 nonsuit: and if a defendant fails to comply with such order, the court may, on motion, give judgment against him by default." The purpose of the provision is to provide a substitute for a bill of discovery in aid of a legal action. It may be invoked only when the document sought "contains evidence pertinent to the issue," and "in cases and under circumstances when they might be compelled to produce the same by the ordinary rules of proceeding in chancery." The penalty for failing to comply with such an order is exceedingly stringent, that of a nonsuit or a judgment by default. For more than a century trial courts have disagreed as to whether under this enactment the procedure is limited to a requirement that the books, documents and writings be produced at the trial, or, in the discretion of the court, before the trial, for such investigation and examination as the party obtaining the order might desire. The contention upon the one side is that "in the trial" does not mean "at the trial," or, "during the trial," but at any time after issue joined. The doubt about the meaning of the provision is engendered by the use of the words "in the trial." It is, of course, urged that if the Congress had intended to limit the right to such production, it would have said "at the trial," or "on the trial." But it is said with equal force that if the purpose was to compel such production before the trial and after issue joined, Congress would have substituted the words, "in an action at law," instead of using words seemingly more restrictive. But taking the words as written, what must we infer Congress to have meant by empowering the court to compel production "in the trial”? Some of the considerations which collectively lead us to conclude that the words "in the trial" mean "on or at the trial" are these: a. The significance of the word "trial." Does that word embrace anything more than is commonly understood when we speak of the "trial" of an action at law? Or does it include, as contended here, every step in a cause between issue joined and that judicial examination and decision of the issues in an action at law, which we always refer to as the trial? Blackstone defines "trial" to be the examination of the matters of fact in issue. 3 Bl. Com. 350. This definition is adopted by Bouvier. In Miller v. Tobin, 18 Fed. Rep. 609, 616, Judge Deady applied this meaning to the removal act, saying, "Trial is a common-law term, and is commonly used to denote that step in an action by which issues or questions of fact are decided." But the word has often a broader significance, as referring to that final examination and decision of matter of law as well as fact, for which every antecedent step is a preparation, which we commonly denominate "the trial." Many cases are cited for this definition in 28 Am. & Eng. Ency., p. 636. But this does not help out those who would broaden the meaning so as to justify an order to produce before such judicial examination of both matters of fact and law which constitute that final step which is called "the trial.” b. "In the trial" implies a restricted use of the procedure as compared to a bill of discovery. Under the ordinary rules of procedure in chancery to obtain a discovery of evidence material to the maintenance or defense of an action at law, such evidence must, in the very nature of things, result in production before the "trial" at law. Such procedure is still open if it is desired to have the evidence produced before the trial. A court of equity does not lose its jurisdiction to entertain a bill for the discovery of evidence or to enjoin the trial at law until obtained, because the powers of the courts of law have been enlarged so as to make the equitable remedy unnecessary in some circumstances. See the very instructive discussion of the question by Judge Wallace in Colgate v. Compagnie Francaise &c., 23 Fed. Rep. 82. In Guyot v. Hilton, 32 Fed. Rep. 743, an application under § 724 to require the plaintiff to produce for the inspection of the defendants the business books of the plaintiff's firm for certain years "in order to enable them to prepare for trial," was denied, Judge Lacombe saying that the proper practice to obtain such relief was by a bill in equity for discovery. The statute may therefore be well regarded as affording |