
    Case No. 5,001.
    FOWLER v. HECKER.
    [4 Blatchf. 425.] 
    
    Circuit Court, S. D. New York.
    April 12, 1860.
    Horace Andrews, for plaintiff.
    Robert B. Campbell, for defendant.
    
      
       [Reported by Hon. Samuel' Blatchford, District Judge, and here reprinted by permission.]
    
   BETTS, District Judge.

In McNiel v. Holbrook, 12 Pet. [37 U. S.] 84, 89. the supreme court determined that the 34th section of the judiciary act of 1789 (1 Stat. 92), embraces within its provisions those statutes of the several states which prescribe rules of evidence in civil eases, in triáis at common law. The same principle is confirmed in Sims v. Hundley, 6 How. [47 U. S.] 1, 6. This doctrine is now followed in this circuit, in common law cases, in all instances where the statutes of the state render evidence competent which would be inadmissible under the rules of the common law, whether the state statute be or be not enacted subsequently to the passage of the judiciary act The 390th section of the Code of Procedure of the State of New York provides, that “a party to an action may be examined as a witness, at the instance of an adverse party, or of any one of several adverse parties, and, for that purpose, may be compelled in the same manner, and subject to the same rules of examination, as any other witness, to testify either at the trial, or conditionally, or upon commission.” Supposing the reference in the present case to have been legally instituted, the defendant was bound to obey the subpoena, and the cause he offers in excuse is no protection to him against the mandate. An order against the defendant for contempt of court may, accordingly, be entered and enforced against him, unless, at the adjourned day appointed for the hearing before the referee, he appears and submits himself to examination as a witness.  