Page:Federal Reporter, 1st Series, Volume 6.djvu/138

 126 FEDERAL KBPOKTER. �LowBLL, C. J. In this action at law a motion is made that the defendants be required to answer certain interrogatories, iiled in the clerk's office, in accordance with the practice of the state. Gen. St. c 129, §§ 46-57. The cheap and easy substitute for a bill of discovery, which was adopted in Mas- sachusetts in 1852, bas proved to be useful, and the question is whether it is now part of the practice of the circuit court, by Tirtue of Eev. St. § 914. Another statute of the state, of still grea ter value, and much older, but later than the yeftr 1780, when -we first adopted the state practice, authorizes a court of law to appoint auditors in certain cases, and makes their report evidence. If these equitable powers, given to courts of common law, are not adopted, the circumstanoe is to be regretted ; but the question seems to be a very doubtful one. �Speaking generally, the mothod of obtaining evidence to be used at a trial would be a part of the practice and modes of proceeding of the courts. It is so understood by congress, which gives the supreme court power to prescribe such modes of obtaining evidence and discovery as it may see fit, not in- consistent with any statute. Eev. St. § 917. This provision seems to me to weaken very much the argument so ably pre- sented by Judge Dyer in Eaaton v. Hodges, 7 Biss. 324, that the legislation of congress is intended to cover the whole sub- ject of evidence, and to exclude it from the domain of practice altogether. With much of that able opinion I agree, and I have no doubt that the decision in that case was sound. The adoption of the state practice is not intended to affect the courts of the United States, sitting in equity, in the slightest degree. There is no doubt that discovery is a branch of equity, and it follows that a cheap and easy substitute for a bill of discovery cannot take away the right of a suitor to file such a bill, if he is foolish enough to desire to do so. So of auditors : they are a convenient substitute for a bill in equity, and the power to appoint them in an action at law cannot deprive a plaintiff of the right to go into equity for an account. AU this being granted, I am of opinion that when the state has enlarged the powers of the courts of law by giving them ��� �