Page:Federal Reporter, 1st Series, Volume 6.djvu/139

 BRIANT V. LEyiiAKD. 127 �some new writs or processes or forms or modes of proceeding of practice by which suitors can, if they see fit, obiain in a sait at law some of the advantages for which they must for- merly have goneinto equity, such forms are adopted by.our practice aet, net as substitutes, but as cumulative remedies for the benefit of soch suitors as choose to avail of them. : �I am not speaking of new subjects brought within the eog- nizance of courts of law, but of facilities for arriving at justice in matters clearly within the jurisdiction of such courts. �Upon this point I agree with the late Judge Johnson in Bliss y. New Orleans R. Co. 13 Blatchf. 227, a case closely analogous to the appointment of an auditor. �I agree that there must be nothing in the practice incon- sistant with any statute. Therefore, if the state practice were that a deposition might be taken if a witness lives 20 mues from the place of trial, and the act of congresa says 40 miles, the latter must prevail. So, as to the production of bocks and paper8,'the statute seemsto me to assign the limits to our powers, (Eev. St. § 724;) and the practice act was not intended to interfere with this. �The practice act of 1872, § 5, (17 St. 197,) provided that nothing in that act should alter the rules of evidence under the laws of the United States. In re-enacting this section, this proviso bas been dropped, and is not to be found any- where in the Eevised Statutes. The reason for omitting it may be assumed to be that the rules of evidence are no part of the practice, or forms or modes of proceeding, as they cer- tainly are not in general, though the mode of obtaining evi- dence' is. Still, that proviso was niled by me, in a very important case, to have this effect : that if the practice of appointing auditors in an action at law had been adopted, as I should have inclined to think it had been, still, their report would not be prima fade evidence, in accordance with the statute of the state, and therefore there was no use in ap- pointing an auditor. That proviso having disappeared, it is thought, by Judge Nelson and by me, that we have power to n.ppoint an auditor in an action at law, and that his report ��� �