Page:Federal Reporter, 1st Series, Volume 8.djvu/491

EICE V. MARTIN. 477 �These are the provisions of law in force, and the defendants object to the testimony of Eice on the ground that Norton, the other party to the transaction, is dead. At common law a witness was disqual- ified who was either a party to the action or interested in the event of the suit. Section 377 removed that disqualification. Under that section every person directly interested in the suit, as a party or otherwise, is competent. The object of the section was to enlarge the competency of witnesses — to inerease the number of cases in which a witness could testify; and it had that effect. Then follows, the limitation in section 379 : " No person shall be allowed to testify under the provisions of section 377 * * *," The only persona rendered competent by section 377 were, for our purposes, persons who before had been disqualified by reason of interest in the event of the action or proceeding. It must be some person rendered com- petent by section 377, not so before, upon whom the restriction in section 379 must be placed. In other words, the witness disqualified by section 379 mu^t be some person who had an interest in the event of the action. It could not have been the intention of the legislature to narrow the competency of witnesses, where, before the adoption of section 377, they had been competent. The reference to that section n section 379 forbids that idea. "Party to the transaction" must, therefore, be referred to a person who had some interest in the event of the action as a party thereto or otherwise; and section 379 must be read as if the language were, " when the other party (being a per- son who has an interest in the event of the action or proceeding as a party thereto, or otherwise) to the transaction is dead." But by sec- tion 858 of the Revised Statutes of the United States no person is to be excluded because he is a party to or interested in the issue tried, with but one proviso, viz. : �" That in actions by or against executors, administrators, or guardijins, 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, tinless called to testify thereto by the oppo- site party, or required to testify thereto by the court." �This proviso does not embrace this case. �The state statutes are to be rules of decision only in cases whero the constitution, treaties, and statutes of the United States do not otherwise provide. When they do otherwise provide, the state laws cease to be of force. To illustrate by so much as fits this case : No witness is to be excluded because he is a party to the issue. This is ��� �