Page:Federal Reporter, 1st Series, Volume 8.djvu/496

182 FEBEBAL BBPOBTEB. �• The defendantE) haye aJiB-wered the criticismB of plaintiff on the testimonyof Dwelly, and have uexplained perfectly why he testified more fully when he testiuied forihe defendants than when he testified for the intervenora; The testimony was taken for the intervenors September 8,1880; for the plaintiff from January 5 to 8, 1881; and for the defehdants from January 21 to 26, 1881. �The bill must be diamissed, mth costs to defendant; the inter- venors to have the relief prayed. �Sawyeb, C. J., concurrimgi. The question as to the competenoy of Eice's testimony being an important one, I desire to add some obser- vations to those, made by my associate. Eice is a party to the suit, and also to the transaction in issue alleged to have been had between him and Norton in the life-time of the latter, under whom the opposite parties claim title. For the purposes of the decision I shall assume, VKIthout deciding the point, that the opposite parties to Eice, being suc- cessors in interest to Norton, who is deceased, are "representatives of, a deceased person," within the meaning of the statute of Nevada, a^amendedinl879. St.Nev.1879,49. The question, then, is -whether the sta tutes of the United States have an express, direct provision upon which the competency of Eice depends, or whether the case f ails within those provisions of the United States statutes which make the compe- tency depend upon the statute of Nevada upon the subject. The testi- mony was incompetent at common law, because Eice is a party to the suit, and interested in the controversy. If his testimony is competent, then it is because some statute of the United States makes it so directly by some express provision applicable to the case, or indirectlj' by making the competency depend upon some statute of Nevada ren- dering it competent. If the competency is referred to the statute of Nevada, and governed by that, then, upon the assumption stated, the testimony is inadmissible under the section referred to — the opposite party being the "representative of a deceased person." �Section 858 of the Revised Statutes of the United States, applicable to the case, reads as follows : �"In the courts of the IJnited 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 judgnient 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 tiiereto by the court. In all other respects, the laws of the state in which the court is ��� �