because Copelin has not taken charge of the business as he was expected to do, and Mr. Lackey's answer is an offer to rescind upon repayment of the money paid, with interest, and a considerable bonus. There were several other ratifications.

It was not until October, 1873, after the large profit of the English sale had failed to be realized, and after the change of time known as the "crisis" of that year had set in, that Mr. Copelin's friends procured him to be adjudged insane, and that the guardian wrote the letter avoiding this sale. Upon a remonstrance by the defendant, who wrote in vindication of the honesty of the transaction on his part, the guardian replied that the question was merely one of capacity to contract. The bill does not rely wholly upon the insanity of Copelin, but the evidence requires me to decide the case exclusively upon that point; because I am satisfied that the sale was not fraudulent, and that, if it were voidable for that cause, it has been ratified.

The plaintiffs maintain that Copelin was incapable of making or ratifying a contract in February, 1871, and incapable of appointing an attorney in July, 1871, when he went to Europe, and left full powers with Mr. Lackey.

It is not easy for the most honest and careful witnesses, looking back after an interval of years, to fix with any degree of accuracy the date of acts and conversations, each of which was wholly unimportant to them at the time; such as that six years or more ago they heard Copelin make an extravagant statement, or saw him do something odd and unusual. Most of the witnesses in this case decline to fix these reminiscences with positive dates. Certain things are proved, and certain things have not been proved. Copelin was a man of wealth and enterprise, largely concerned in business of various kinds, and having the control of still larger sums than he himself owned, belonging to his wife and her family. He was a director in many of the principal joint-stock companies in St. Louis. In the course of some months near about, but in most cases later than, the time of the purchase of this mine, he made other bargains of doubtful wisdom. In the

aggregate his speculations were very considerable, and it is probable that his family became alarmed. A great deal of evidence has been given to show on the one hand the extravagant character of these transactions, and on the other that they were not extravagant. The net result to his family, I fear, was a great loss.

In July, 1871, he went to Europe and traveled there some months for his health and recreation. In August, for the first time, a physician, expert in insanity, was consulted in Edinburgh. He pronounced Copelin insane, and in his deposition, (vol. 1, p. 177,) being asked his opinion, formed at the date of that examination, as to the length of time Mr. Copelin had been laboring under the effects of this disease, he says: "It is impossible to answer this question definitely. It may have existed a few months only, or a year er more. My opinion at the time was that it had existed several months." Whether by several months he meant six months, which would carry it back to about the date of the purchase, I do not know. All the other experts were consulted much later, and the weight of their opihion, so far as they are willing to express it, appears to be that it was possible, but not very probable, that the disease had begun as early as February, 1871.

The business of Copelin was conducted as usual until after his return from Europe. In December, 1871, and January, 1872, he resigned his several offices as president and director in the companies above mentioned. This may be taken as the time when he was found to be so clearly insane that the family and friends were obliged to make public admission of the fact. The three possible witnesses most competent to fix the exact dates-Copelin's wife, his mother-in-law, and his sister-have not been examined.

Taking these prominent and admitted facts into consideration, and reviewing the voluminous and detailed testimony in the record, I do not find it proved that Copelin was non compos February 10, 1871, nor that he was incapable of ratifying a contract after that time, or of making a power of attorney in July, 1871. I think a jury would not be war

ranted in declaring that at the former of those dates he was incapable of transacting the ordinary affairs of life, or of making a will, or a contract of however solemn and important a nature.

These findings of facts make the disputed points of law unimportant. I ought to say, however, that the evidence of the defendant, taken in his own behalf, though not especially objected to at the time, is understood to be governed by a stipulation in the record that each party reserves all objections to matters of substance, and the complainant is right in insisting that by section 858 of the Revised Statutes the defendant's own evidence should not be received as to the transactions and conversations with Copelin personally. I have, therefore, not relied at all, in reaching my conclusions, upon testimony which comes within the prohibition of that section.

Bill dismissed, with costs.

BRYANT V. LEYLAND and others.

(Circuit Court, D. Massachusetts. March 1, 1881.)

1. PRACTICE-FILING INTERROGATORIES-BILL OF DISCOVERY. Under the federal practice act, interrogatories, authorized by a state statute, may be filed in a federal court, in an action at law, in lieu of a bill of discovery.

2. SAME-CUMULATIVE REMEDY.

Such remedy is cumulative merely, and not adopted as a substitute or a bill of discovery.

3. SAME-DISCOVERY-ORAL TESTIMONY-REV. ST. § 861.

Section 861 of the Revised Statutes, which declares that the mode of proof in actions at common law shall be by oral testimony, does not refer to discovery, whether by bill or interrogatory.-[ED.

Action at Law. Motion that defendants be required to answer certain interrogatories, filed in the clerk's office, in accordance with the practice of the state.

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, §§ 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. § 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. § 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 substitutes, but as cumulative remedies for the benefit of such suitors as choose to avail of them.

I am not speaking of new subjects brought within the cognizance 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 v. 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 inconsistent with any statute. Therefore, if the state practice were that a deposition might be taken if a witness lives 20 miles from the place of trial, and the act of congress says 40 miles, the latter must prevail. So, as to the production of books and papers, the statute seems to me to assign the limits to our powers, (Rev. 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 has been dropped, and is not to be found anywhere in the Revised 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 certainly are not in general, though the mode of obtaining evidence is. Still, that proviso was ruled 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 facie evidence, in accordance with the statute of the state, and therefore there was no use in appointing an auditor. That proviso having disappeared, it is thought, by Judge Nelson and by me, that we have power to appoint an auditor in an action at law, and that his report