intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court. In all other respects, the laws of the state in which the court is held. shall be the rules of decision as to the competency of witnesses in the courts of the United States in trials at common law, and in equity and admiralty." 2 This statute has been said to be remedial, and to deserve, therefore, a liberal construction. It applies as well to causes to which the United States is a party, as to those between private persons. It allows a party to testify in his own behalf, as well as when called upon by the other.5 It does not prevent a person, not a party but interested in the result of a suit, from testifying against an executor in a case when, if a party, he could not do so although the State law would exclude such testimony. Where an administratrix had commenced a suit and subsequently resigned, and the suit was continued by her successor, it was held that she who began the suit was a competent witness as to transactions with the testator.7 This statute does not allow a wife to testify in behalf of, or against, her husband, unless the laws of the State permit her so to do. For her incompetency by the common law was due not to interest, but to grounds of public policy. The cases where the court will require a party to testify, when otherwise he would not be obliged or allowed so to do, are rare. The court will usually only do so upon its own motion, and, if upon his suggestion, only after hearing the other party, if the latter object.10 The court will do so, however, when a party has died after his testimony has been taken and before trial, and his administrator insists upon reading or submitting his testimony at the hearing.11 The court, will, it seems, not require such testimony to be taken, if by so doing it would adopt a rule of decision for a Federal court different from that prescribed by the legislature for courts of the State wherein it is held.12 If there are several defendants, one of whom has a similar interest in the result to that of the 2 U. S. R. S. § 858; James v. Atlantic Delaine Co., 3 Cliff. 614. See infra, § 372. 8 Texas v. Chiles, 21 Wall. 488. 4 Green v. United States, 9 Wall. 655. Contra, Jones v. United States, 1 Ct. Cl. 383. 5 Texas v. Chiles, 21 Wall. 488; Railroad Co. v. Pollard, 22 Wall. 341. 6 Stevens v. Bernays, 42 Fed. R. 488; Potter v. Third National Bank of Chic., 102 U. S. 163. 7 Snyder v. Fiedler, 139 U. S. 478. 16 complainant, such defendant cannot, by requiring the complainant to testify, obviate the effect of the proviso in this statute.18 It seems that the admissions of a party are competent evidence against him, even though, upon his cross-examination, when testifying in his own behalf, he was not asked if he made them.14 In the Federal courts, no matter what the decisions of the State courts may be, a verbal collateral agreement cannot be proven to vary, qualify, contradict, add to, or subtract from the absolute terms of a written instrument, in the absence of fraud, accident, or mistake, 15 nor to show by parol that payment was to be made in some other way than that specified in the written instrument.1 It has been held, in actions at common law, that the testimony of a physician as to information acquired while attending a patient in a professional capacity, when forbidden by the statutes of the State, should not be admitted in the Federal court there held; 17 that when a State statute authorized the admissibility in evidence of a notarial certificate of a form inadmissible at common law,18 or of the endorsement of negotiable paper without proof of handwriting,19 the Federal court there held should follow such statutes; but that a State statute excluding the testimony of a witness on account of his interest in the controversy should be disregarded.20 An application to the patent office and correspondence with the patent office, although the rules of the patent office provide that they shall be kept secret, must be produced by a party who has been served with a subpoena duces tecum calling for them, although a privilege is claimed upon the ground that they are the result of consultations between the applicant and his counsel, that their phraseology must necessarily reflect both the information given by the client to the counsel and the advice given by the counsel to the client, and that they have been placed in the hands of counsel under the protection of a confidential relation.21 By statute, on the trial of all indictments, informa 18 Eslava v. Mazange, 1 Woods, 623. 14 The Stranger, 1 Brown's Adm. 281. 15 Brown v. Spofford, 95 U. S. 474; American Electric Const. Co. v. Consumers' Gas Co., 47 Fed. R. 43, 46. 16 Richardson v. Hardwick, 106 U. S. 252; Bast v. First National Bank of Ashland, 101 U. S. 93. 17 Conn. Mutual Life Ins. Co. v. Union Trust Co., 112 U. S. 250. 18 Sims v. Hundley, 6 How. 1. 19 M'Niel v. Holbrook, 12 Pet. 84. 20 Potter v. National Bank, 102 U. S. 163; Goodwin v. Fox, 129 U. S. 601, 631. 21 Edison Electric Light Co. v. U. S. Electric Lighting Co., 44 Fed. R. 294, 297, 299. tions, complaints, and other proceedings against persons charged with the commission of crimes, offenses, and misdemeanors in the United States courts, Territorial courts, and courts-martial, and courts of inquiry, in any State or territory, including the District of Columbia, the person so charged shall, at his own request, but not otherwise, be a competent witness.22 It has been held that this does not render competent a defendant who by a previous conviction of an infamous crime had lost the privilege of testifying. The Revised Statutes provide that "no pleading of a party, nor any discovery or evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign country, shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture; provided that this section shall not exempt any party or witness from prosecution and punishment for perjury committed in discovering or testifying as aforesaid." Some authorities hold that since this statute a witness cannot object to testifying on the ground that an answer would tend to criminate him.25 Such cases seem to give a very narrow construction to the Fourth Amendment to the Constitution. "The only protection to the party being that his answer shall not be used against him in a criminal prosecution, a protection of little avail to any party who should disclose criminal acts upon which an indictment could be found, and should upon compulsion indicate other sources of evidence by means of which the acts disclosed can be proved; and such acts may also constitute offences under the law of the State, against which Congress can afford no immunity." 26 The Revised Statutes further provide that: "No testimony given by a witness before either House, or before any committee of either House of Congress, shall be 22 20 St. at L. 30 (1 U. S. Supp. 312). 23 United States v. Hollis, 43 Fed. R. 248. 24 U. S. R. S. § 860. 25 United States v. M'Carthy, 18 Fed. R. 87; People v. Kelly, 24 N. Y. 74; United States v. Brown, 1 Saw. 531, 536; United States v. Williams, 15 Int. Rev. Rec. 199; In re Phillips, 2 American Law Times, 154; In re Counselman, 44 Fed. R. 268. 26 In re Pacific Railway Commission, 32 Fed. R. 241, 267; per Sawyer, J. In Matter of Palliser, U. S. D. C., D. Conn. Nov. 1889, argued by George C. Sill, U. S. attorney, for the government, and Roger Foster for the witness; Judge Shipman refused to follow the cases cited in note 25, and allowed the witness to refuse to answer a question which he claimed would tend to criminate him. No opinion was written. used as evidence in any criminal proceeding against him in any court, except in a prosecution for perjury committed in giving such testimony. But an official paper or record produced by him is not within the said privilege." 27" No witness is privileged to refuse to testify to any fact, or to produce any paper, respecting which he shall be examined by either House of Congress, or by any committee of either House, upon the ground that his testimony to such fact or his production of such paper may tend to disgrace him or otherwise render him infamous.28 A defendant when called by the complainant as a witness may be compelled to state whether he has in his possession a machine claimed to be an infringement of the plaintiff's patent, although the plaintiff has not previously made out a prima facie case of infringement.29 The rules regulating the production of documents by a subpoena duces tecum or otherwise have been previously explained.30 § 275. Subpoenas ad Testificandum. - The attendance of a witness is usually compelled in equity as in law by the service of a subpoena ad testificandum, and the payment of his fees and mileage. A subpoena ad testificandum is substantially in the same form in equity as in law. When issued from a court of the United States, it must be under the seal of the court, and signed by the clerk; and is usually also signed by the solicitors of the party at whose request it issues. Those issued from the Supreme Court or a Circuit Court must bear teste from the day of such issue of the Chief Justice of the United States, or, when that office is vacant, of the associate justice next in precedence.2 Those issuing from a District Court must bear teste of the judge, or when that office is vacant, of the clerk thereof. By the common law, the names of but four witnesses could be included in one subpoena. The Revised Statutes, however, provide that, "to save unnecessary expense, it shall be the duty of the clerk to insert the names of as many witnesses in cause in such subpœna as convenience in serving the same will permit."5 If 27 U. S. R. S. § 859. 28 U. S. R. S. § 103. 29 Delamater v. Reinhardt, 43 Fed. R. 76; U. S. C. C., S. D. N. Y. per Lacombe, J. Contra, Celluloid Co. v. Crane Co., 3d Circuit. 30 Supra, § 267. § 275. 1 For the amount of his fees and mileage, see § 333. 2 U. S. R. S. §§ 911, 912. 8 U. S. R. S. §§ 911, 912. Erwin v. United States, 37 Fed. R. 470, 490. 5 U. S. R. S. § 829. Erwin v. United States, 37 Fed. R. 470, 490. the witness can be served within the jurisdiction of the court where the suit is pending, or within a hundred miles of the place of holding that court, the subpoena may be issued from its clerk's office. If he cannot, and it is desired to take his testimony de bene esse under the acts of Congress," application for the issue of the subpoena must be made to the court of the district in which the examination is to be made. It has been held that Congress has no power to authorize or compel the courts of the United States to issue subpoenas or punish for contempt witnesses before a Congressional Commission, or an executive officer.10 "Witnesses who are required to attend any term of a circuit or district court on the part of the United States, shall be subpœnaed to attend to testify generally on their behalf, and not to depart the court without leave thereof, or of the district attorney; and under such process they shall appear before the grand or petit jury, or both, as they may be required by the court or district attorney." 11 It has been held that a witness cannot be compelled by subpoena to produce the patterns of the castings of a stove, which are in his possession.12 § 276. Service of a Subpœna ad testificandum. A subpoena to appear and testify may be served by the marshal of the court, or by any other person acting as the agent of the party calling the witness. The Revised Statutes provide that "subpoenas for witnesses who are required to attend a court of the United States, in any district, may run into any other district; provided, that in civil causes the witnesses living out of the district in which the court is held do not live at a greater distance than one hundred miles from the place of holding the same."2 A witness' attendance at a court more than one hundred miles from the place where he lives cannot be compelled by the service of a subpœna upon him within the district, when he has been enticed there by 6 U. S. R. S. § 876. 7 See infra, §§ 286-287 8 U. S. R. S. § 863; United States v. Tilden, 25 Internal Rev. R. 352; Ex parte Humphrey, 2 Blatchf. 228; Henry v. Ricketts, 1 Cranch C. C. 580; Ex parte Elisha Peck, 3 Blatchf. 113. See infra, § 276. In re Pacific Railway Comm'n, 32 Fed. R. 241. But see In re Counselman, 44 Fed. R. 268. 10 In re McLean, 37 Fed. R. 648. 11 U. S. R. S. § 877. 12 In re Shephard, 3 Fed. R. 12. § 276. 1 Schwabacker v. Reilly, 2 Dill. 127; Cummings v. The Akron Cement & Plaster Co., 6 Blatchf. 509; Miller v. Scott, 6 Phila. (Pa.) 484; Power v. Senimes, 1 Cranch C. C. 247. 2 U. S. R. S. § 876; Ex parte Beebees, 2 Wall. Jr. 127; Henry v. Ricketts, 1 Cranch C. C. 580; United States v. Williams, 4 Cranch C. C. 372. |