New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1868-11-16

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thg laws Of the State IN which The Court haii Dg ' Of
shalt De tlc rules Of decision as 20 the conle ,J
90 common law u equity and admiralty. u asl.', r.
large, -s. Prior to that time tLe ONLY pI''l .i nm
tlc8lth section Of the judiciary act. which pi1' no
THAT the laws Of tic several N't'cs cl -:.1 states
shall otherwise require or provide, shall De irf of
rules Of decision n trials 40 coihno W am n; but 10 is
won .eti.d l,,v mat tbat provision does l1' li,e
suits u equity or ln causes oI h the supreme
Oi, S, "s ~ Instances that 10y virtue % e
provision the laws Of the states IN ibe Federal Courts
o,".v Noul'I VI troyerses affecting the te W pGr r
ory yet there some con- diug that the par
az "tI ~ ,t s6ouid be competent WITNESSES, I'm.
uSs 10 the sit Them as such the Federal Cou,s ro
erect TO q19 l ntion of Congress in enactng .a t tc
ii,, WIS 10 remove that DOUBT 'l " In W bur in
MIC ~ decision not only IN tilas AZ tbe federal
ennis as in the State Courts pI 1pto line Federal
,,si'n was TO Introduce more lS ~ ali matters Of
to mics of decision i'm respect 10 ~ AZ Stare
DTonerty and local interest wn9h ts ~ the Federal
Turt aud 10 bring the several courts Oh t na bor,no
courts az t ~ into uniform ana haIo t
nous course Of decision upon an sun ai n3sed on the
pIoNlsOFF Iul is65 which was that in the Courts OF to
United states tItr If color nor in any cril actions be-
Wines o o Dorty TO- or interested in the issue tried,
10 ou ot No witness should be excluded IN cNli ae
& hcause ne was party to, Interested H. the ISSUE
tred Was TO introduce diversity INTO lno IuiTs
It1ou,5 ocision in the Federal Courts as com
pared With The rules Of decision Rr nNooI
I'M
refcrence 10 the statutes of this state PROVISION vas
made by the General statutes Of TINS state l
shall be admitted as competent WlllSs93o 80
themselves or any other party, pIoN,ueu nc nc
where one Of the original parties 10 llI yrt,,
NJ action in issue aud on trial is dead, the 0iher parry
shall not be admitted 20 testify III Ms own ny, ~ ]
who il living and competent to testify, except as 10 SUI
acts or contracts rs have been done or S9o inis
probate OF the will the appointment OF ule huI
lIalor zen Of the legislature but they are
q, u
SEQ ], supp. TO Gen STAT p SOL AiSo ScSs'on' ~ ~
cn9p 1 1IIe Universities were Introduced by the
last two clauses Of that provision lurC otS s
rules Of decision in the Federal courts Oh S r The
Districts as compared with the rules plescncu iOI tno
stoe Cors In tie same district by the state Legislature,
but it is unnecessary to enter mo suTh @ on c "a OF
March, 1865 passed on amcnda0ry act poNiuns tHt "a
artons bv or against Executors Administrators or Guar
dane I'm which ud gnent may be rendered for or against
them neither party shall be allowed To tesuy 1k'st
the other to transactions with or staement ~ to
tstotor ntestate or ward unless called 10 testify thereto
by the opposite party, or reqtred 70 bsgy Ut ~ ~ 10
Court 10 stat At Large 53 Inc malel WoitS =" t
rovon Ia be considered In this case are, that neher
party shall be allowed to testify against the othef IN we
cases and under the CIRCUMSTANCES tneIei @ We T. u
less required to testify thereto by the Court as IL Is
not pretended that the complainant was calico 20 'y
thereto by the opposite party SliIct3 t
petition Of tho complainant DID not pray tnaV
She might be required by the Court 10 teS-
or statements by the tcstatriX but the prayer was
that order might be passed that she might De aoTeu
To testify generally witness, no exception was taken
as to the form Of the petition and the oIder rs reclteu
was passed. reserving 70 the Court the lght 10
the questions involved IN the peton az inc u hcaI
OF the case. Views OF tho respondents al me tne tne
pctition was presented and at the final hearing were that
by the true construction OF the pnIaSt, - ~ -, "a
Ia testify thereto Court" 10 only had the eutCl 10
save from the operation G Ie e Ua Sy Vested in
| the Court when sitting as court OF Equity, 10
1ntrrrsliiy 8clnoycdged and frequently pracced in
Equity Courts Stated M other words the proposition OF
Goes not authorize the examination OF the complaint IN
any case where II not allowed IN the practice OF
Sohtetu I'M C,rt tiipg more than m II read
unless required TO testify thereto by the Court IN accord
auce with equity practice. Interest undoubtedly dls
oneBcd Wines In an equity sut ma well az In actions
NJ law unless 1t is otherwise provided by statute Ores
Srt i;lan Prac sI3: Wexford agt Dckay, Paige sos;
granted TO examine party motion, II the motion IS
SccompanIcd bv an aidavit showing that he is not inter
| cstcd 6ut tbs order is never granted without
saving an Just exceptions for the benefit OF the opposite
$50 Dixon agt Parker, yes Sen 222 Murray agt shad-
we'll and Il. aoi; Phillips agt Duke 81 BUCKS, ]
Nern, $780, Rogerson agI Wilmington, SWahsi, o.
Based these authorities, the argument for the respond
out is that the only eec OF the ast eIcel,lo1 ~ 4t
act Of Congress is that II reserves 70 tLe fedeII ,o
the powers which they possessed before as Courts OF
IN IN the case but the Court is Of different opinion,
the provision is general ana aPpc"ee az ven 10 e
6ascs have seldom or never before occurred where
the right of party Introduce evidence I'M support OF
Tie cause ofactoi set forth ia his pleading depended In
any upon the discretion OF the Court bur u Con
ire IL secs I'll to make provision the Court IL q the
op4ou that it IL the night u party 90 prccut such an
applications and that II IS Tie duty Of ne Court 10 lear
ana determine it Whenever u i made 90 due form such
an application is dou3lle,s 4dHI,,,eu -o De on
tie Court but ~ Is legal discretion ana our onl"n ls
that the Court in granting or refusing mo Application
fixed rules 70 be applied ~ al similar cases Intrinsic
difficulty u unprecedented may arise in every attempt
TO define such general rules ana perhaps u would be un-
cation before The Court calling fr Tie decision Of The
Court under the power c9nhI ny le ae o. ooits
New as the provision ana called upon as inc Cout IS or
the first time 10 determine its true meaning. the
necessities OF he prcseAt case require viewed - a
whole. the several acts Of Congress IN relation TO the
Of Congress TO egsate thar the evidences 81 title 10
real estate and the rules Of decision IN all controversies
era Courts the State Courts O The State aud
district and TIE decisions u the supreme Court through
same end Impressed also with the conviction that that
course Of legislation ana Of decision las been highly
10 grant such application under the provision IN
question In any case whore the effect Of granting II
Of the district different from that which the Legislature
Of the state has prescribed Tor the government OF the
State Courts IN all similar cases Where AN executor or
an W ,h st 70 , I H. aSptd m tS,ify IN b
own favor unless the contract in Issue originally
made with person who IS living and competent
70 testify and this Court decides th III SUCH case me
Court VIII pass order In controversy respecting
property requiring the living party 20 testify IA lis own
favor 10 any transaction with statement By the tesla
tor tesatr1 interstate, ward, "a the case may De
6cc,sicn ~ The Cont h that the complainant il moi "A
competent witness in this 10 testify 10 any transac
ton WITH statement by the said testatTX, ana that all
such parts Of her deposition as fall within that rule are
rejected = nadmIssblc
Cnadcd by the testimony OF the complainant TO any
transaction WITH statement by the tcstatO In respect
the VIII under which the respondents claim the next
question is whether the other evidence in the case is
sufficient 70 prove the alleged contract and 20 enc the
complainant TO decree in her favOTl The principal
breach Of the supposed contract as alleged mat the
said Sylvia Ann made another viii, In which Thomas
Mandel Is named as executor ana by which
parties, and devised tic residue 20 Edward ID.
Manden. George Rowland, Jr, and William Gordon In
the purposes therein described Complainant