International Tooth-Crown Co. v. Hanks' Dental Ass'n

101 F. 306, 1900 U.S. App. LEXIS 5160

Opinion

LACOMBE, Circuit Judge

(after stating the facts). Ever since the passage of the act of March 9, 1892, it has been uniformly construed in this court as providing additional modes for taking testimony, so as to enable the federal courts to avail of all modes prescribed by the laws of the different states and adapted to the several communities where the courts sit. It is supplementary to section 914, Rev. St. U. B., securing a uniformity in the mode of taking proof, which that section was no doubt intended to secure, hut which it failed to secure under the interpretation of the supreme court in Ex parte Fisk, 113 U. S. 724, 5 Sup. Ct. 724, 28 L. Ed. 1117. I do not find in Register Co. v. Leland, 37 C. C. A. 372, 94 Fed. 505, sufficient reason for reversing former decisions of this court, nor for declining to avail of any mode of taking proof which the state laws provide. The practice of examination before trial under the New York practice is a most wholesomé one. It tends to simplification of the trial, and frequently leads to settlement out of court. The examination should proceed.