Page images

Miss Howland had quarrelled, from any share in her property; that she and Miss Howland executed wills accordingly; but that subsequently Miss Howland executed another will, in which she gave part of her property to persons other than the complainant. The bill prayed that the defendants, who were the executor and the devisees under this second will, might he decreed to hold the property devised and bequeathed by Miss Howland in trust for the complainant. The defendants denied the contract; contended that such contract, if made, was illegal; and alleged that part of Miss Howland's first will was a forgery. Much evidence was taken in the case, especially on the genuineness of Miss Howland's alleged handwriting. Much of this evidence was of a very novel and curious character ; but a consideration of it, as well as of the legality of contracts for mutual wills, was cut short by the decision of the court, that the testimony of the complainant, as to the transactions between her and her aunt, which had been taken de bene esse, was not admissible; and that, apart from such testimony, there was no sufficient evidence of the contract. We insert that part of the opinion of Mr. Justice Clifford in which he decided against the admission of the complainant's testimony. The case is to be carried to Washington.

“Before proceeding to consider the merits of the case, it becomes necessary to determine, as a preliminary question, whether the complainant is a competent witness in the case in her own favor, and, if so, to what extent, and whether her testimony or any part thereof, as exhibited in her deposition taken at her request, is admissible in evidence to prove the alleged contract. On the 27th of March, 1866, the complainant by petition represented to the court that the interests of justice required, in her belief, that she should be allowed by the court to testify generally as a witness in this case, and prayed that an order to that effect might be passed by the court. Both parties were heard on the subject of the petition, and on the twenty-eighth day of June, in the same year, the court passed the order, against the objections of the respondents, that the complainant might be examined generally as a witness in the cause, reserv. ing the questions as to the competency of the witness and the admissibility of the evidence for further consideration at the final hearing. Pursuant to that reservation, the several questions involved in the petition were again discussed by the parties at the final hearing, and the court will now proceed to state their final determination of these several questions, and the reasons upon which that determination is founded.

“By the Act of Congress of the 16th of July, 1862, it was provided that the laws of the State in which the court shall be 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, in equity, and admiralty.-12 Stat. at Large, 588. Prior to that time, the only provision in the acts of Congress upon the subject was that contained in the thirtyfourth section of the Judiciary Act, which provides that the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply; but it is well settled law that that provision does not apply in suits in equity, or in causes of admiralty and maritime jurisdiction. — 1 Stat. at Large, 92. Although the Supreme Court decided, in repeated instances, that by virtue of that provision the laws of the States, and the decisions of the State courts, were rules of decision in the Federal courts, in common law controversies affecting the title of property, yet there was some contrariety of opinion whether an act of the State legislature, providing that the parties to the suit should be competent witnesses, had the effect to qualify them as such in the Federal courts. Undoubtedly the intention of Congress in enacting that provision was to


remove that doubt, and to require that the rule of decision, not only in trials at common law, but in equity and admiralty, should be the same in the Federal courts as in the State courts. The obvious purpose of the provision was to introduce more fully into the Federal courts the rules of decision, in respect to all matters of property and local interest, which prevailed in the State courts, and to bring the several courts of the Federal and State governments into a more uniform and harmonious course of decision upon all such subjects. The next provision in the acts of Congress was that passed on the 2d of July, 1865, which was, that in the courts of the United States there shall be no exclusion of any witness on account of color, nor, in any civil actions, because he is a party to or interested in the issue tried.' — 13 Stat. at Large, 351. The immediate effect of the provision that no witness should be excluded in a civil action because he was a party to or interested in the issue tried, was to introduce diversity into the rules of decision in the Federal courts, as compared with the rules of decision prevailing in the State courts in the same district, as will be seen by reference to the Statutes of this State. Provision was made by the General Statutes of this State (c. 131, § 14), that parties in civil actions and proceedings ... shall be admitted as competent witnesses for themselves or any other party, ... provided that, where one of the original parties to the contract or cause of action in issue and on trial is dead, the other party shall not be admitted to testify in his own favor unless the contract in issue was originally made with a person who is living and competent to testify, except as to such acts and contracts as have been done or made since the probate of the will or the appointment of the administrator. — Gen. Stat. (Mass.) 673. Certain exceptions are made in subsequent acts of the legislature, but they are not material in this case. — See St. 1864, c. 304, § 1- Supp. to Gen. Stat. p. 361. Also St. 1865, c. 257, SS 1 and 2- Supp. to Gen. Stat. p. 407. Like diversities were introduced by the last two clauses of that provision into the rules of decision in the Federal courts of many other districts, as compared with the rules prescribed for the State courts in the same district by the State legislature, but it is unnecessary to enter into such details. Congress became aware of the embarrassment, and on the 3d of March, 1865, passed an amendatory act providing 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. – 13 Stat. at Large, 533. The material words of the provision to be considered in this case are, that neither party shall be allowed to testify against the other in the cases and under the circumstances therein described, unless 'required to testify thereto by the court,' as it is not pretended that the complainant was called to testify thereto by the opposite party. Strictly construed, the petition of the complainant did not pray that she might be required by the court to testify in the case as to any transaction with or statement by the testatrix ; but as the prayer was that an order might be passed that she might be allowed to testify generally as a witness, no exception was taken to the form of the petition, and the order as recited was passed, reserving to the court the right to determine the questions involved in the petition at the final hearing of the case. The views of the respondents at the time the petition was presented and at the final hearing were, that, by the true construction of the phrase 'unless required to testify thereto by the court,' it only had the effect to save from the operation of the prohibition, that neither party should be allowed to testify, the power vested in the court when sitting as a court of equity to admit parties to be examined in certain cases, as universally acknowledged and frequently practised in equity courts. Stated in other words, the proposition of the respondents is that the act of Congress in question does not authorize the examination of the complainant in any case where it was not allowed in the practice of chancery courts before that provision was passed. They contend that the exception, 'unless required to testify thereto by the court,' means nothing more than if it read, unless required to testify thereto by the court, in accordance with equity practice. Interest undoubtedly disqualifies a witness in an equity suit as well as in actions at law, unless it is otherwise provided by statute. - Gresley Eq. Ev. 237; 2 Daniel Chan. Prac. (3d ed.) 885; 1 Smith Chan. Prac. 343; Eckford v. De Kay, 6 Paige, 565; De Wolf y. Johnson, 10 Wheat. 367. Leave may be granted to examine a party, on motion, if the motion is accompanied by an affidavit showing that he is not interested; but the order is never granted without saving all just exceptions for the benefit of the opposite party. - Gres. Eq. Ev. 338; 2 Daniel Chan. Prac. (3d ed.) 886; Dixon v. Parker, 2 Ves. Sen. 219; Murray v. Shadwell, 2 Ves. & B. 401; Phillips v. Duke of Bucks, 1 Vern. 227; Rogerson v. Whittington, 1 Swanst. 39. Based on these authorities, the argument for the respondents is, that the only effect of the last exception in that act of Congress is that it reserves to the Federal courts the power which they possessed before, as courts of equity, to require or allow a party not interested to testify in the case; but the court is of a different opinion, as the provision is general and applicable as well to the District Court as to the Circuit Court, and in common law actions as well as in suits in equity. Cases have seldom or never before occurred where the right of a party to introduce evidence in support of the cause of action set forth in his pleading depended in any manner upon the discretion of the court; but if Congress sees fit to make such a provision, the court is of opinion that it is the right of a party to present such an application, and that it is the duty of the court to hear and determine it whenever it is made in due form.


“Such an application is doubtless addressed to the discretion of the court, but it is a legal discretion; and our opinion is that the court, in granting or refusing the application, ought to be governed as far as practicable by certain fixed rules, to be applied in all similar cases. Intrinsic difficulty, it is apprehended, may arise in every attempt to define such general rules, and perhaps it would be unwise to make any such attempt, except when an application is before the court calling for the decision of the court under the power conferred by the act of Congress. New as the provision is, and called upon as the court is for the first time to determine its true meaning, the court is not disposed to go one step beyond what the necessities of the present case require. Viewed as a whole, the several acts of Congress in relation to the competency of witnesses indicate an intent on the part of Congress so to legislate that the evidences of title to real estate, and the rules of decision in all controversies affecting rights of property, shall be the same in the Federal courts as in the State courts of the same State and district, and the decisions of the Supreme Court throughout the period since its organization tend strongly to the same end. Impressed, also, with the conviction that that course of legislation and of decision has been highly beneficial, we are of the opinion that the court ought not to grant such an application, under the provision in question, in any case where the effect of granting it would be to adopt a rule of decision in the Federal courts of the district different from that which the legislature of the State has prescribed for the government of the State courts in all similar cases. Where an executor or administrator is a party, the other party, under the law of the State, cannot be admitted to testify in his own favor, unless the contract in issue was originally made with a person who is living and competent to testify; and this court decides that in such a case the court will not pass an order in a controversy respecting property requiring the living party to testify in his own favor to any transaction with or statement by the testator or testatrix, intestate or ward, as the case may be. Obviously the case at bar falls within that rule, and the decision of the court is, that the complainant is not a competent witness in this case to testify to any transaction with or statement by the said testatrix, and that all such parts of her deposition as fall within that rule are rejected as inadmissible.”


MICHIGAN. Few cases of more than local interest came before the Supreme Court at its October session.

In Romeyn v. Campan, a point of some interest to attorneys was passed upon. Romeyn had been counsel for Campan in several suits, and was requested, near the close of the year, to send in his bill, as the client desired to pay it. At the same time, it was suggested to him that the bill should be made low, as the client expected to pay promptly in money. The bill was sent in, but was disputed, and payment refused. Suit being brought, the circuit judge, on a trial before him without a jury, found as matter of fact that the bill was very low, and that larger amounts might properly have been charged for the services; but he held, that, as a matter of law, the attorney was bound by the bill rendered, and could not recover a larger sum. On error, this ruling was reversed; the court holding that the bill was rather to be regarded as a proposition to take the sum mentioned for the services, and the one party was not bound by presenting it until the other had become bound by acceptance.

In Morton's Admr'x. v. Preston, the following facts appeared : Morton, who was owner of certain stock in a New York corporation, died at Detroit, intestate. It not being supposed that any debts existed against his estate, the widow and children, all of whom were of full age, undertook to apportion the property between them. In order to accomplish this, it was agreed that the certificate of stock should be indorsed by them all, and sent to Buffalo to be sold. It was indorsed accordingly; but one of the heirs afterwards got possession of it, and deposited it with a banker in Detroit, as security for a debt owing by him. The banker sold it and received the proceeds. These facts coming to the knowledge of the widow, she obtained letters on the estate, and then sued the banker for the proceeds, as money had and received to the use of the estate. For the defence it was insisted that the previous action and indorsement, by the widow and heirs, estopped them from setting up any claim to the stock, as against any one who had relied upon the indorsement; but it was held, that the principle of . estoppel was not applicable to the case; that no title to the certificate passed by the indorsement and delivery ; but, on the contrary, the certificate carried on its face notice to any one who should take it that the indorsers had no power to transfer the legal title, and consequently the banker, in selling it, must be held to have received the proceeds to the use of the estate. Held, also, that it was immaterial to the case whether debts existed against the estate or not.

In Hoggsett v. Ellis, in an elaborate opinion by Judge Christiancy, the question is discussed, whether an action for use and occupation will lie at common law against a tenant at sufferance, who remains in the occupancy of land after being notified to surrender possession to the person entitled; and it was decided that, by the American Common Law, it would.

The circuit judges of Michigan receive a salary of $1,500 a year, which was fixed by constitutional provision in 1850. The Constitution proposed in 1867, – which doubled this salary, — having been rejected by the people, the State exhibits the curious anomaly of tendering salaries entirely inadequate for their support to officers whose official duties require, and should receive, all their time and attention. How long this evil is to continue, is a question which begins to be serious. Two of the judges cultivate large farms, and may be said to be retired lawyers, who hold the judicial position from love of its duties, and as a relief from the monotony of agricultural life. Another judge divides his time between the bench and the vineyard. Other judges have also other means of support, and on the whole, perhaps, the cause of justice does not suffer so greatly in Michigan as one might reasonably be led to anticipate.

MISSISSIPPI. UNITED STATES DISTRICT Court. — Ex parte Hewitt & Mcllwaine. In this case the following important decision on the powers of military commissions under the Reconstruction Acts was pronounced by the Hon. R. A. Hill, District Judge. The facts are sufficiently stated in the opinion.

“From the allegations made in the petition in this cause, and the return made thereto by John R. Hynes, Superintendent of the Penitentiary of the State of Mississippi, to whom the writ was directed, the following facts appear out of which the questions now submitted for the determination of the court arise. The petitioners were arrested and put upon their trial before a military commission appointed for the trial of offenders by Major General A. C. Gillem, commanding this district. The specifications and charge upon which they were put upon their trial are substantially as follows: "That said petitioners, with others, citizens of Natchez, in the State of Mississippi, in the county of Adams, in said State, on or about the 19th day of July, 1868, did unlawfully, maliciously, and feloniously conspire and combine together to kill and murder one George Stewart, a teacher of a school for colored children, and, in pursuance of said agreement and conspiracy, did proceed to the house of said Stewart, and by false pretences induced him to leave his house, and did then and there order him to reveal the password of a secret association called the “Loyal League,” and, upon said Stewart's refusing to do so, did pour about one gallon of coal oil or turpentine on his head and body, and did order him to kneel down and say his prayers, that he had but a few minutes to live ; that said Stewart escaped from them, when they fired at him with a pistol, with intent then and there to kill and murder said Stewart.'

“That, after the testimony on said trial had been heard by said commission, the commission found from the proof that said acts were committed, but were not committed with the intent to kill and murder said Stewart, but with intent to outrage and injure him, and for this offence the petitioners were sentenced to hard labor in the penitentiary of this State for the term of one year, which sentence was approved by the commanding general, and in pursuance to which they have been placed in said penitentiary, in the custody of the superintendent, John R. Hynes. To be discharged from such custody and punishment is the purpose of this application.

“ The petitioners by their counsel concede the jurisdiction and power of the commanding general, when in his opinion a fair and impartial trial of offenders cannot be had, and the offenders punished by the local courts, to cause them to be arrested, tried, and, if found guilty, punished by a military tribunal; but insist that they must be judged by the laws in force in the State, and can only be subject to the punishment prescribed by those laws, although the mode of trial may not be required to conform to the forms prescribed by the State laws, and insist that the punishment inflicted in this case is unknown to any law of the State for the offence of which they were found guilty, and is not authorized by the act of Congress empowering the military commander to protect the citizens in their persons and property, and to secure the citizens in their persons and property, for which purpose he is directed and authorized to cause

« PreviousContinue »