On July 28, 1933, E. W. Backus filed in the District Court his action at law against Herbert J. Blum, Gustavus F. Swift, Jr., and Allen Moore. The declaration consisted of seven counts. In the first five counts he sought to recover triple damages for alleged violation of the federal antitrust laws, 15 USCA § 15; in the sixth count he sought recovery of damages for an alleged conspiracy in violation of the Illinois anti-trust laws, Smith-Hurd Ann. St. c. 38, § 569, Cahill’s Illinois Revised Statutes, 1933, c. 38, par. 598; and in the seventh count he sought damages for an alleged conspiracy between defendants in violation of the common law of Illinois. Each count charged that prior to July 19, 1928, he had contracted to sell designated amounts of corn at certain prices in expectation that its market price would decline before the end of July, 1928, and in the belief that he would be able to purchase such corn for July delivery at prices lower than those for which he had sold it. Each count further alleged that Blum, Swift, and Moore purchased July corn and by conspiracy effected a “corner” on substantially all of the July corn available on the Chicago market, and as a result thereof, the price of July corn was raised to such an extent that Backus was compelled to default on his sales contracts and was required to settle for his defaults at a price much in excess of the true commercial value of July corn. In the first five counts he demanded triple damages in the sum of $1,000,000, and under the sixth and seventh counts he demanded damages in the sum of $300,000.
Ancillary to and in aid of his action at law, Backus, on September 29, 1933, filed his bill of discovery against Blum, Swift *573 and Moore, referred to as the “principal defendants,” and the various brokers through whom they purchased and sold July 1928 corn, hereinafter referred to as the “defendant brokers.” The court overruled appellants’ motions to dismiss the hill for discovery, and thereupon answers were filed. Thereafter, Backus filed a supplemental bill of discovery asking for further and detailed evidence, which the court ordered appellants to answer, including certain portions of the original bill of discovery to which appellants had objected. The errors relied upon arose out of the rulings of the District Court requiring appellants to give the discovery requested by the original and supplemental hills.
On February 5, 1935, Elisabeth H. Backus and Seymour W. Backus, the widow and son of E. W. Backus, reported to this court that E. W. Backus had died on October 29, 1934, and that they were the duly appointed, qualified and acting administrators of his estate, by virtue of an order of the Probate Court of Hennepin County, Minnesota. They thereupon prayed this court that they might be substituted for decedent as appellees herein, and rhey were thus substituted without prejudice to the rights of appellants to move to vacate the order. Subsequently, appellants moved to vacate that order on the ground that the causes of action, which were in tort, did not survive hut that they abated upon the death of E. W. Backus.
Accepting as true the allegations of the declaration in the legal action, it would seem that decedent suffered a property injury within the meaning of the Sherman Anti-Trust Act (15 USCA §§ 1-7, 15 note). Chattanooga Foundry & Pipe Works v. Atlanta,
It is contended by appellants that this statute altered the common law rule only as to actions relating to specific, tangible, personal property, and that with this exception the former common law rule remained precisely the same regardless of whether the defendant or plaintiff died. In other words, they urge that, except as to actions brought to recover damages for injury to personal property in the tangible sense, all actions ex delicto abate upon the death of either party in the absence of an express statute to the contrary. It is conceded that there is no express statute other than 4 Edw. Ill, c. 7, which modifies the common law rule. It will be noted that this statute did not alter the common law rule in cases where the defendant died. Prior to the adoption of the common law and the statute of Edward by the American legislatures the English courts had many occasions to construe that statute with respect to the point here raised, and their construction was adverse to appellants’ present contention.
In Sale v. The Bishop of Lichneld, Owen 99, 74 English Reports 928 (1589), decedent owned an advowson, consisting of a right of appointment to an archdeaconry, which the Bishop withheld. The executor recovered judgment restoring the advowson and awarding damages. Here there was no taking of tangible goods, hut the court held that the statute of Edward was applicable, and said:
“For the statute says that they shall have an action of trespass for a trespass done to their testator, and not for taking goods, so that the taking of goods is but by way of resemblance, and not that they shall have an action of trespass for taking of goods only. * * *
“Put the case that the testator had judgment to recover damages, shall not that be assets? And why may not the damages here recovered he assets, and why shall not the grant of the advowson he assets in the hands of the executor as well as in the hands of the issue.”
In a note by Sergeant Williams to Wheatley v. Lane, 1 Wms. Saund. 216, 85 English Reports 228 (1680) it was said that certain actions survive to the executor *574 which do not survive against him, and that: “The statute of 4 Edward III being a remedial law, has always been expounded largely; and though it makes use of the word ‘trespasses’ only, has been extended to other cases within the meaning and' intent of the statute. * * * Therefore, by an equitable construction of the statute, an executor or administrator shall now have the same actions for any injury done to the personal estate of the testator in his lifetime, whereby it is become less beneficial to the executor, as the testator himself might have had, whatever the form of the action may be.”
In Williams v. Cary, 4 Mod. 403, 87 English Reports 468 (1695) an executor recovered against a sheriff for a false return upon an'execution levied during testator’s life. The court in holding that the action survived, said: “It cannot be properly said in this case, that there is any actual wrong or injury done to the person of the testator; for if so, then moritur cum persona; but it is an injury done to his personal estate, in which he is represented by his executor, and therefore he may maintain this action within the equity of the statute 4 Edw. Ill * * * which gives him an action of trespass for a wrong done to his testator. * * * Therefore, though it be true that a personal action dies at common law with the person, yet, upon the equity of this statute, a wrong done to his estate still remains.”
In Berwick v. Andrews, 1 Salkeld 314, 91 English Reports 277 (1704) decedent recovered judgment -against an executor who wasted the estate of his testator thereby rendering collection' of the judgment impossible. The judgment plaintiff having died, his executor charged the first executor with a devastavit and thus sued him in his individual capacity. The court held that the action survived and said:
“It lies for the executor of him to whom the wrong was done, though it lies not against the executor of him that did the wrong. Here the defendant is the person against whom the recovery was, and he has admitted assets; and the executor may as well maintain this action, as he may an action of debt for an escape where his testator tnight. So an executor of a parson shall maintain debt for tithes, as the testator might: for in this case the tort was to the property of the testator, and vested an interest in him, and is within the equity of the Statute de Bonis Asportatis; and the same reason holds for an action of debt, as for a scire facias. Vide 2 Sid. 102.”
See 2 Lord Raymond 971, 92 English Reports 147, where the court said:
“But the Statute of Edward 3 is a re-' medial law, which has always been taken by equity, wherever there is a matter of property in question it is brought within the statute.”
We are unable to discover any different interpretation of the statute of Edward by the English courts up to the time it, with the common law pertaining to this subject, was adopted by the American States. That the same construction has been subsequently follpwed by the English decisions is substantiated by the following- citations: Wilson v. Knubley, 7 East 128, 103 English Reports 49; Twycross v. Grant, L. R. 4, C. P. D. 40; Hatchard v. Mege, 18 Q. B. D. 771; Williams on Executors (12 Ed.) Vol. I, 491; Pollock on Torts (11 Ed.) 62.
It is not denied that Illinois, and practically all of the other states, adopted the common law of England as modified by the statute of Edward, with respect to the subject now under discussion. Bunker v. Green,
“The question involved in that case related to commercial paper, but Justice Story’s opinion reaches far beyond questions of commercial law and embraces practically all general questions of common law. Indeed, the only questions the language of that opinion seems to leave under the binding effect of the state decisions are those in relation to ‘rights and titles to things having a permanent locality, such as the rights and titles to real estate and other matters immovable and interterritorial in their nature and character.’
“This doctrine declared in the Swift v. Tyson Case * * * has steadily advanced beyond the actual* question involved in that case, and it may he said that at the present time it is the settled general doctrine of the federal courts that they will themselves determine, without regard to the decisions of the highest courts of the state, as binding authority, all general questions of the common law involving matters of mercantile or commercial law or of general jurisprudence.”
A long list of cases from the Supreme Court and other federal courts follow and we think they fully support the annotation.
The federal statute upon which decedent’s action at law was based is section 7 of the Sherman Anti-Trust Act, 15 US CA § 15 and note. 1 The Act is quite general in its nature, and its successful enforcement would seem to require a uniform interpretation in its application, as well as a uniform interpretation of the common law as modified by the statute of 4 Edw. III. There is nothing in the character of the legal action as stated in the first five paragraphs which rendered it local to the State of Illinois, and the construction of the common law and of the statutes involved we think must come under the classification of general jurisprudence, and is to be determined by the federal court.
The federal decisions are not in accord with respect to the question here presented. Appellants rely upon Caillouet v. American Sugar Refining Company (D. C.)
The Bonvillain Case was based on facts quite analogous to those in the Caillouet Case, and the same ruling was made in each. There the court referred to United Copper Securities Company v. Amalgamated Copper Company (C. C. A.)
While we do not agree with appellants’ contention that in the determination of the question before us this court is bound by the construction of the common-law and the statute of Edward as enunciated by the courts of Illinois, yet, if that point be conceded to appellants, we think our conclusion must remain the same, because we find nothing in the Illinois decisions which is at variance with that conclusion. Of the cases cited and discussed by appellants, Jones v. Barmm,
Appellants also argue that the fact that the statute on Administration provides for the survival of certain actions in addition to those which survive at common law proves that those actions specified in the Act did not previously survive. The actions named are: “Actions of replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property. * * * ” Smith-Hurd Ill. Ann. St. c. 3, § 125. It will be observed that such statute was necessary to preserve all the actions named as to cases where a defendant died, since neither by the common law nor by the statute of 4 Edward III could such actions survive the death of a defendant. The statute also preserves in favor of the representatives of a deceased plaintiff, actions for personal injuries which had not previously survived. The case upon which appellants rely for a discussion of the effect of this statute, Jones v. Barmm,
None of the appellants except Moore, Swift, and Blum were parties to the legal action for damage's, and we think that none but the parties to or those interested in that action can properly be made parties defendant to this bill of discovery. That seems to be the general. rule and is supported by the great weight of American and English authorities. Brown v. Swann,
In this action there seems to be no reason why the general rule should not be followed. It is no doubt true that the brokers were agents of appellants, but it does not appear and it is not claimed, that any of them have any interest in the action. It will be presumed that they are not thus interested, for if they were, decedent no doubt would have joined them as de
*577
fcndants. In Sinclair Refining Company v. Jenkins Petroleum Process Company,
Appellants allege as error the rulings of the District Court in directing Moore, Swift, and Blum to answer certain interrogatories with respect to the transactions in question, and to submit their books, papers, and documents for inspection and examination. We are first confronted with their objections to such orders on the ground that to comply with them would infringe their rights under the Fifth Amendment to the Federal Constitution relative to the disclosure of evidence of an incriminating character, and would tend to establish their guilt of the crime defined in section 2 of the Sherman Anti-Trust Act, 15 USCA § 2.
It is clear that any criminal action under that section based upon the facts here alleged would be barred by the statute of limitations if it were instituted at any time since 1931. Appellants, however, contend that, so far as this record discloses, there may be a criminal action or actions yet pending which were instituted prior to the expiration of the period of limitations, and that until the non-existence of such action or actions has been established, they should not be required to answer. They urge that the burden of proof thereof rests upon those seeking the discovery. We think appellants’ contention is sound. The rule is that if the offense is outlawed or pardoned, or the criminal liability therefor has been removed by statutory enactment, then the interrogated party cannot claim the constitutional protection. When the privilege is demanded, the question first arises whether the action is outlawed. If it is not outlawed, the interrogating party may still demand the answers if it is shown either that a pardon has issued or that a statutory enactment has relieved the witness from criminal prosecution, and the burden of establishing those facts, we think, clearly rests upon the interrogator. I f the criminal action is outlawed, the questions must be answered, but here again, we think the burden of establishing the fact of its being outlawed rests upon the interrogator. Wigmore on Evidence, § 2279, says as to this problem: “A crime erased by lapse of time exists no longer. There is therefore no criminal fact to be privileged from disclosure. * * * The only question can be whether the claimant or the opponent of the privilege has the burden of proof with respect to the usual condition upon which the running of the statutory period depends, namely that no prosecution has been begun within the time; and this burden is held to be upon the opponent.” Citing Southern R. N. Co. v. Russell,
In support of appellees’ contention that the running of the statute disentitles the party interrogated to claim the privilege, they cite Brown v. Walker,
Under the rulings we have referred to, we think the court erred in requiring Moore, Swift, and Blum, and all other defendants who raised the objections upon which we have passed, to answer the interrogatories, and it is therefore unnecessary to pass on the other alleged errors.
The orders are reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
Notes
15 USCA § 15: “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.”