with the terms of this act, are required to be executed; and upon the failure of any clerk to execute such new bonds, his office shall be deemed vacant. The attorney-general may at any time, upon like notice through the district attorney, require a bond of increased amount, in his discretion, from any of said clerks, within the limit of the amount above specified; and the failure of the clerk to execute the same shall in like manner vacate his office. All bonds given by the clerks shall, afterapproval, be recorded in their respective officers, and copies thereof from the records, certified by the clerks respectively, under seal of court, shall be competent evidence in any court. The original bonds shall be filed in the department of justice.

SEC. 4. Mandamus to officers of court.-That the circuit courts of the United States, for the purposes of this act, shall have power to award the writ of mandamus, according to the course of the common law, upon motion of the attorneygeneral or district attorney of the United States, to any officer thereof, to compel him to make the returns and perform the duties in this act required.

SEC. 5. Refusal or neglect to report-removal from office.—That if any clerk of any district or circuit court of the United States shall willfully refuse or neglect to make any report, certificate, statement or document required by law to be by him made, or shall willfully refuse or neglect to forward any such report, certificate statement or document to the department, officer, or person to whom, by the law, the same should be forwarded, the president of the United States is empowered, and it is hereby made his duty in every such case to remove such clerk so offending from office by an order in writing for that purpose. And upon the presentation of such order, or a copy thereof, authenticated by the attorney-general of the United States to the judge of the court whereof such offender is clerk, such clerk shall thereupon be deemed to be out of office, and shall not exercise the functions thereof. And such district judge, in case of the clerk of a district

court, shall appoint a successor, and in the case of the clerk of a circuit court, the circuit judge shall appoint a successor. And such person so removed shall not be eligible to any appointment as clerk or deputy clerk for the period of two years next after such removal.

SEC. 6. Refusal or neglect to report. That if any clerk mentioned in the preceding section shall willfully refuse or neglect to make or to forward any such report, certificate, statement or document therein mentioned, he shall be deemed guilty of a misdemeanor, and shall be punished by a fine of not exceeding one thousand dollars, or by imprisonment not exceeding one year in the discretion of the court, but a conviction under this section shall not be necessary as a condition precedent to the removal from office provided for in this act.

SEC. 7. Mileage and expenses.-That the provisions of the sixth paragraph of the act entitled, "An act making appropriations for the support of the army for the fiscal year ending June thirtieth, eighteen hundred and seventy-five, and for other purposes," approved, June sixteenth, eighteen hundred and seventy-four, shall not be construed to apply, or to have applied, to attorneys, marshals or clerks of courts of the United States, their assistants or deputies. And all accounts of said attorneys, marshals, and clerks, for mileage and for expenses incurred subsequent to the first day of July, eighteen hundred and seventy-four, and prior to the first day of January, eighteen hundred and seventy-five, shall and may be audited, allowed and paid at the treasury department of the United States in the same manner as if said act had not been passed. And from and after the first day of January, eighteen hundred and seventy-five, no such officer or person shall become entitled to any allowance for mileage or travel not actually and necessarily performed under the provisions of existing law.

SEC. 8. Repealing clause.-That all acts inconsistent with the provisions of this act are hereby repealed. Approved, February 22, 1875.

Illinois destroyed by fire.

893. Copies of foreign letters-patent. 902. Records of northern district of 894. Printed copies of specifications and drawings of patents. 895. Extracts from the journals of congress.

896. Copies of records, etc., in offices of United States consuls, etc. 897. Certain books and papers in offices of district and circuit courts in Texas, Florida, Wisconsin, Minnesota, Iowa, and Kansas.

898. Transcribed records in the

903. Same subject.
904. Same subject.
905. Authentication

906.

907.

of legislative acts and proof of judicial proceedings of States, etc.

Proof of records, etc., kept in offices not pertaining to courts.

Copies of foreign records, etc., relating to land titles in the United States.

Little & Brown's edition of the statutes to be evidence.

Burden of proof, when it lies on claimant in seizure cases. Possessory actions for recovery of mining titles.

SEC. 858. No witness excluded on account of color or interest-provided, etc.-In the courts of the United States no witness shall be excluded in any action on account of color, or in any civil action because he is a party to or interested in the issue tried: Provided, That in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other, as to any transaction with, or statement by, the testator, 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. [See @ 1977.]

2 July, 1864, c. 210, s. 3, v. 13, p. 351; 3 Mar., 1865, c. 113, v. 13, p. 533; 16 July, 1862, c. 189, s. 1, v. 12, p. 588.

The wife cannot testify for her husband.-This provision does not give the wife capacity to testify in favor of her husband. The exclusion of the wife in such cases, at common law, was not upon the ground of interest. Lucas v. Brooks, 18 Wall., 436. But it applies to cases in which the United States is a party as well as those between private parties. Green v. United States, 9 Wall., 655.

Previous to the enactment of the provisions embraced herein, relating to the interest of witnesses, the Supreme Court had held that the statutory enactments of the States of the Union in this respect were obligatory upon

the federal judges. Wright v. Bales, 2 Black, 535; McNeil v. Holbrook, 12 Pet., 84; Sims v. Hundley, 6 How., 1. And the act of July 6, 1862, expressly provided that "the laws of the State in which the court shall be held shall be the rule of decision as to the competency of witnesses in the courts of the United States." See, also, Packet Company v. Clough, 20 Wall., 528. And in certain cases of necessity an interested party was allowed to testify, as where he was an informer of stolen property and entitled to a part of the penalty. United States v. Murphy, 16 Pet., 203. Or the contents of a trunk, lost or destroyed. United States v. Clark, 96 U. S., 37. And the evidence of interested witnesses may be given by deposition. Cornet v. Williams, 20 Wall., 226; Railroad Co. v. Pollard, 22 Id., 342.

In case of the death of a party.—Where a servant brought an action against his master for negligence, and during its pendency died, and an administrator was duly substituted, and the action was brought to trial, but previous to the death of the servant his deposition had been taken on his own behalf, and on the trial was read in evidence, it was held that the defendant should be allowed to testify on his own behalf as to matter contained in the deposition. Mumm v. Owens, 2 Dill., 475.

Testimony required by the court-construction.--Under the provision relating to actions by and against executors, administrators, or guardians, and permitting interested parties to testify in such cases, when called by the opposite party or required by the court so to do, an ex parte order obtained by complainant before process issued for his own examination as a witness, does not qualify him as such on the ground that he is required to testify by order of the court. Eslaoa v. Mazauge, 1 Woods, 623.

The provision has no application to Territorial courts.-The proviso to the third section of the act of July 2, 1864 (§ 858 of the Revised Statutes), that in the courts of the United States no witness shall be excluded in any civil action because he is a party to or interested in the issue tried has no application to the courts of a Territory where a different rule prevails. Good v. Martin, 95 U. S., 90; Bidges v. Armour, 5 How., 91. Territorial courts are not courts of the United States within the meaning of the Constitution. Clinton v. Englebrecht, 13 Wall., 434; Hornbuckle v. Toombs, 18 Id., 648.

SEC. 859. Testimony of witnesses before congress not admissible against them in criminal prosecutions. -No testimony given by a witness before either house, or before any committee of either house of congress, shall be 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. [See 103.]

24 Jan., 1862, c. 11, v. 12, p. 333; 24 Jan., 1857, c. 19, s. 2, v. 11, p.