Page:Federal Reporter, 1st Series, Volume 8.djvu/492

 4:78 FEDERAL REPORTER. �broad enougli to cover every case in which a parly is offered as a wit- ness ; and the objection is on the ground of interest, as I have endeav- ored to show it must be in this case, When we look for any excep- tion we find that there is none, exeept in cases in which the suit is broright by an administrator, executor, or guardian; which is not this. case, there being no administrator, executor, or guardian as a party in the case. �It seems to me that in reading section 858 counsel for defendants has taken the exception in the proviso for the riile : "In the courts of the United States no witness shail be excluded because he iS a party." Thisis the rule, with this proviso: "Provided, that in actions by or against exeoutors, administrators, or gnardians neither party shall be allowed to testify against the other." And so the court held in Potier V. J5awfc, 26 Int. Eev. Eec. 403. �"We iSive seen," says the court, in Potier y. Bank, "that the existing statutes of the United States do otherwise provide, in that they forbid the exclusion of a witness uj)on the ground that he is a party tp or interested m the issue in any civil action whatever j^ending in a federal court, exeept in a cer- tain class of actions which do not embrace the one now before us." �In Lucas v. Brooks, 18 Wall. 436, 453, the court says : " Undoubtedly the act of congress has eut up by the roots all objections to the competency of a witness on account of interest. But the objection to a wife's testifying on behalf of lier husband is not, and never has been, that she has any interest in the issue to which he is a party. It rests solely on public policy. To that the statute has no application." �In this latter case the deposition of the wife was refused, and in Packet Co. v. Clough, 20 Wall. 628, 637, it was received because the statute of Wisconsin made the wife a competent witness. Thus ahow- ing that the supreme court do not regard the law of congress as in any way affecting the competency of married women, but leave that to rest where it did before. It seems a little hard to reconcile the cases of Packet Co. v. Clough, supra, where the wife's deposition was ad- mitted because the state law so prescribed, section 858 of the Revised Statutes notwith standing, and Ins. Co. v. Schaefer, 94 U. S. 457, where a conadential communication was kept out notwithstanding the law of Ohio allowing it to be given in evidence. Both matters rest alike on public policy — neither on interest. When the laws of the United States speak they are controlling. Says the court in the latter case : �" New the competency of parties as witnesses in the federal courts depends on the act of congress in that behalf passed in 1864, amended in 1865, and «odifled in the Revised Statutes, § 858. It is not derived from the statute ��� �