Ex Parte FISK

Citations

• 113 U.S. 713
• 5 S. Ct. 724
• 28 L. Ed. 1117
• 1885 U.S. LEXIS 1725
• 1 How. Pr. (n.s.) 432
• 7 N.Y. Civ. Proc. R. 169

Syllabus

<p>The principle that in actions at law the laws of the States shall be regarded as rules of decision in the courts of the United States, § 721 Rev. Stat., and that the practice, pleadings, and forms and modes of .proceedings in such cases shall conform as tear as maybe to those of the courts of- the States in which the courts sit, § 914, is applicable only where there is no rule-on the same subject prescribed by act of Congress, and where the State-rule is ' not in Conflict with any such law.</p> <p>The statute of New York, which permits a party to a suit to be examined by his adversary as a witness at any time previous to the trial in an action at law, is in conflict with the provision of .the Revised Statutes of the United States which enacts that “ The mode of proof in the trial of actions at common law shall be by oral testimony., and examination of witnesses.in open, court, except as hereinafter provided.” § 861.</p> <p>None of the exceptions afterwards found in §§ 868, 866 and 867 provide for such, examination of a party to the suit in advance of the trial as the statute •of'New York permits. '</p> <p>The courts of the United States sitting in New York have no power, therefore; to compel a party to submit to such an examination, and no power to punish him for a refusal to do so.</p> <p>Nor can the United States court enforce such an order made by a State court before the removal of the case into the Circuit Court of the United States.</p> <p>Where a person is in custody, under an order of the Circuit Court, for contempt in refusing to answer under such an order, this court will release him by writ of habeas corpus on the ground that the order of imprisonment was without the jurisdiction of that court.</p>