Bryant v. Leyland

• Decision Date: 01 March 1881
• Citation: 6 F. 125
• Parties: BRYANT v. LEYLAND and others.
• Court: U.S. District Court — District of Massachusetts

6 F. 125

BRYANT v. LEYLAND and others.

United States Circuit Court, D. Massachusetts.

March 1, 1881

T. F Nutter, for plaintiff.

L. S Dabney, for defendants.

LOWELL C.J.

In this action at law a motion is made that the defendants be required to answer certain interrogatories, filed in the clerk's office, in accordance with the practice of the state. Gen. St. c. 129, Secs. 46-57. The cheap and easy substitute for a bill of discovery, which was adopted in Massachusetts in 1852, has proved to be useful, and the question is whether it is now part of the practice of the circuit court, by virtue of Rev. St. Sec. 914. Another statute of the state, of still greater value, and much older but later than the year 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 circumstance is to be regretted; but the question seems to be a very doubtful one.

Speaking generally, the method 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 inconsistent with any statute. Rev. St. Sec. 917. This provision seems to me to weaken very much the argument so ably presented by Judge Dyer in Easton v. Hodges, 7 Biss. 324, that the legislation of congress is intended to cover the whole subject 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. All this being granted, I am of opinion that when the state has enlarged the powers of the courts of law by giving them some new writs or processes or forms or modes of proceeding or practice by which suitors can, if they see fit, obtain in a suit at law some of the advantages for which they must formerly have gone into equity, such forms are adopted by our practice act, not as...