This rule, however, is not always adhered to or insisted upon by practitioners in the courts of the United States. The English rule was that the stating part of the affidavit must be preceded by the statement that the deponent was duly sworn.3 The affidavit should state "sufficient to sustain the case made by the motion or petition of which it is the groundwork."6 Its statements must be made with sufficient certainty, and with all necessary circumstances of time, place, manner, and other material incidents." When, however, the affiant deposes to words spoken, the addition "or to that effect" is not improper. Special fullness is required of affidavits of service. When the affidavit states matters not necessarily within the deponent's knowledge, it should show how he knows them to be true.10 An affidavit should state facts and not conclusions of law; " and must be pertinent, material, and not scandalous.12 The court may, upon examination of the paper, order such matter expunged with costs, to be paid by the party or solicitor seeking to use the same; 13 or a reference may be ordered to determine whether the statements in it are proper.14 A reference can only be demanded upon exceptions in writing similar to those to a pleading; 15 and the filing or reading of affidavits in opposition to such parts of his opponent's affidavits as are excepted to may be construed as a waiver of the exceptions.16 Pending a reference concerning it, an affidavit cannot be used except by leave of the court, which is usually granted only upon terms." § 273. Execution of an affidavit. It is usual, though it seems not indispensable, for the affiant to subscribe his chris 5 Phillips v. Prentice, 2 Hare, 542; Daniell's Ch. Pr. (2d Am. ed.) 1776. 6 Daniell's Ch. Pr. (2d Am. ed.) 1776; Hinde's Pr. 451; Van Wyck v. Reid, 10 How. Pr. (N. Y.) 366. 7 Sea Insurance Co. v. Stebbins, 8 Paige (N. Y.), 565; Meach v. Chap pell, 8 Paige (N. Y.), 135. 8 Ayliffe v. Murray, 2 Atk. 58, 60. 9 Hinde's Pr. 453. 10 U. S. v. Moore, 2 Low. 232. Cf. Crowns v. Vail, 51 Hun (N. Y.), 204; Cook v. de la Garza, 13 Tex. 431. 11 Powell v. Kane, 5 Paige (N. Y.), 265. Cf. Spies v. Munroe, 35 App. Div. 527, 528. An allegation that one is a creditor is a conclusion of law. Wallace v. Chicago & E. S. Co., 46 Ill. App. 571. 12 Powell v. Kane, 5 Paige (N. Y.), 265. 13 Powell v. Kane, 5 Paige (N. Y.), 265; Ex parte Smith, 1 Atk. 139. 14 Daniell's Ch. Pr. (2d Am. ed.) 1777. See § 68. 15 Daniell's Ch. Pr. (2d Am. ed.) 1777. See § 68. 16 Bickford v. Skewes, 8 Sim. 206; Daniell's Ch. Pr. 1777. 17 Pearse v. Brook, 3 Beav. 337; Daniell's Ch. Pr. 1777. tian name and surname at the foot of the affidavit.1 In England the signature had to be on the left side of the page; but in this country it is usually at the right. In one case where a marksman had signed with his name at length, his hand having been guided for that purpose, the affidavit was ordered taken off the file. The jurat, which is indispensable, is placed upon the opposite side from the signature. It is usually in substantially the following form: "Sworn to before me this day of, 19-." If the affiant be blind or a marksman, the jurat should be in substance thus: "Sworn," &c., "the whole of the above affidavit having been first read over and explained to the said A. B., who appeared perfectly to understand the same, he made his mark in my presence." If the affiant have been previously found by the inquisition of a jury to be an idiot, a lunatic, or imbecile, the officer before whom the affidavit is sworn should state in the jurat that he has examined the deponent for the purpose of ascertaining the state of his mind, and that the latter was apparently of sound mind and capable of understanding the nature and contents of the affidavit." The omission of the addition to the officer's signature of his title, and even the omission of his signature, will not, it seems, be a fatal defect. It is usual and more prudent, even if not absolutely essential, for the officer to mark with his initials all interlineations and erasures in the body of the affidavit.3 § 274. Competency of witnesses.-The testimony of witnesses may be taken either solely for use in the court taking the same or for use in other courts as well. The same rules as to competency prevail at law and in equity.' The Revised § 273. 1 Noble v. U. S., Dev. (C. C. A.) 83; Haff v. Spicer, 3 Caines (N. Y.), 190; Jackson ex dem. Kenyon v. Virgil, 3 J. R. (N. Y.) 540; Soule v. Chase, 1 Rob. (N. Y.) 222; Hitsman v. Garrard, 1 Harr. (N. J.) 124; Shelton v. Berry, 19 Tex. 154; Watts v. Womack, 44 Ala. 605; Alford v. McCarmac, 90 N. C. 151; Gill v. Ward, 23 Ark. 16; Redus v. Wofford, 4 Sm. & M. (Miss.) 579; Bates v. Robinson, 8 Iowa, 318. But see Laimbeer v. Allen, 2 Sand. (N. Y.) 648; Hathaway v. Scott, 11 Paige, 173. 2 Daniell's Ch. Pr. (2d Am. ed.) 1778. 8 v. Christopher, 11 Sim. 409. 4 Daniell's Ch. Pr. (2d Am. ed.) 1776; Matter of Christie, 5 Paige (N. Y.), 242, 5 Matter of Christie, 5 Paige (N. Y.), 242. 6 Hunter v. Le Conte, 6 Cowen (N. Y.), 728; People v. Rensselaer C. P., 6 Wend. (N. Y.) 543. 7 Chase v. Edwards, 2 Wend. (N. Y.) 283. 8 Daniell's Ch. Pr. (2d Am. ed.) 1777; Didier v. Warner, 1 Code R. (N. Y.) 42. § 274. Nash v. Williams, 20 Wall 226. Statutes provide that, "in the courts of the United States, no witness shall be excluded in any action on account of color, or in any civil action because he is a party or interested in the issue tried: provided, 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. In all other respects, the laws of the State in which the court is 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, and in equity and admiralty." This statute has been said to be remedial, and to deserve, therefore, a liberal construction. It applies as well to causes to which the United States is a party, as to those between private persons. It does not apply to criminal cases." It allows a party to be examined de bene esse by his adversary in case where a stranger could be so examined. It allows a party to testify in his own behalf, as well as when called upon by the other. It does not prevent a person, not a party but interested in the result of a suit, from testifying against an executor in a case when, if a party, he could not do so; although the State law would exclude such testimony. Where an administratrix had commenced a suit and subsequently resigned, and the suit was continued by her successor, it was held that she who began the suit was a competent witness as to transactions with the testator. This statute 2 U. S. R. S., § 858; James v. Atlantic D. Co., 3 Cliff. 614; Monongahela Nat. Bank v. Jacobus, 109 U. S. 275; Whitney v. Fox, 166 U. S. 637; Hobbs v. McLean, 117 U. S. 567; Jacksonville M. P. Py. & N. Co. v. Hooper, 160 U. S. 514; Slavens v. No. Pac. Ry. Co. (C. C. A.), 97 Fed. R. 255; McMullen v. Ritchie, 64 Fed. R. 253. See infra, § 372. 3 Texas v. Chiles, 21 Wall. 488. 4 Green v. U. S., 9 Wall. 655. Contra, Jones v. U. S., 1 Ct. Cl. 383. U. S. v. Reid, 12 How. 361; Logan v. U. S., 144 U. S. 263; U. S. v. Hall, 53 Fed. R. 352; s. c., C. C. A.; s. c., U.S. App. 6 Lowrey v. Kusworm, 66 Fed. R. 539. A deposition as to transactions with one, taken while the latter was alive, was admitted in evidence, although the latter died without giving his deposition, and the suit was revived in the name of the executors. McMullen v. Ritchie, 64 Fed. R. 253; Steiner v. Eppinger (C. C. A.), 61 Fed. R. 253. 7 Stevens v. Bernays, 42 Fed. R. 488; Potter v. Third Nat. Bank, 102 U. S. 163. 8 Snyder v. Fiedler, 139 U. S. 478. 9 Lucas v. Brooks, 18 Wall. 436; Bassett v. U. S., 137 U. S. 496, 505. She cannot testify in the District of does not allow a wife to testify in behalf of, or against, her husband, unless the laws of the State permit her so to do. For her incompetency by the common law was due not to interest, but to grounds of public policy.10 It has been held that letters from a husband to his wife, whether competent evidence or not, must, if called for by subpoena, be produced and made a part of the record in equity for use in case of a review by appeal on the ruling as to their admissibility." The cases where the court will require a party to testify, when otherwise he would not be obliged or allowed so to do, are rare. The court will usually only do so upon its own motion, and, if upon his suggestion, only after hearing the other party, if the latter object. The court will do so, however, when a party has died after his testimony has been taken and before trial, and his administrator insists upon reading or submitting his testimony at the hearing. The court will, it seems, not require such testimony to be taken, if by so doing it would adopt a rule of decision for a Federal court different from that prescribed by the legislature for courts of the State wherein it is held." If there are several defendants, one of whom has a similar interest in the result to that of the complainant, such defendant cannot, by requiring the complainant to testify, obviate the effect of the proviso in this statute.15 It seems that the admissions of a party are competent evidence against him, even though, upon his cross-examination, when testifying in his own behalf, he was not asked if he made them.16 In the Federal courts, no matter what the decisions of the State courts may be, a verbal collateral agreement cannot be proven to vary, qualify, contradict, add to, or subtract from the absolute terms of a written instrument, in the absence of fraud, accident, or mistake; nor to show by parol that payment was to be made in some other way than that specified in the written instrument.18 17 13 Columbia. Hopkins v. Grimshaw, 165 U. S. 342, 349. 10 Lucas v. Brooks, 18 Wall. 436. 12 Eslava v. Mazange, 1 Woods, 623. 16 The Stranger, 1 Brown's Adm. 281. 17 Brown v. Spofford, 95 U. S. 474; Am. El. C. Co. v. Consumers' Gas Co., 47 Fed. R. 43, 46. 18 Richardson v. Hardwick, 106 U.S. 252; Bast v. First Nat. Bank, 101 U. S. 93. It has been held, in actions at common law, that the testimony of a physician as to information acquired while attending a patient in a professional capacity, when forbidden by the statutes of the State, should not be admitted in the Federal court there held; 19 that when a State statute authorized the admissibility in evidence of a notarial certificate of a form inadmissible at common law,20 or of the indorsement of negotiable paper without proof of handwriting, or of experts who based their opinion upon a comparison of writing in question with other writings treated as genuine by the adverse party," the Federal court there held should follow such statutes; but that a State statute excluding the testimony of a witness on account of his interest in the controversy should be disregarded." By statute, on the trial of all indictments, informations, complaints, and other proceedings against persons charged with the commission of crimes, offenses, and misdemeanors in the United States courts, Territorial courts, and courts-martial, and courts of inquiry, in any State or Territory, including the District of Columbia, the person so charged shall, at his own request, but not otherwise, be a competent witness. The Revised Statutes provide that "no pleading of a party, nor any discovery or evidence obtained from a party or witness by means of a judicial 19 Conn. Mut. L. Ins. Co. v. Union Tr. Co., 112 U. S. 250; Mutual Ben. Life Ins. Co. v. Robison, 58 Fed. R. 723. It was held that a State statute permitting confidential communications to an attorney to be put in evidence will not be followed at common law in a Federal court. Conn. Mut. L. Ins. Co. v. Schaefer, 94 U. S. 457; Liggett v. Glenn (C. C. A.), 51 Fed. R. 381. And that a contract between an attorney and his client is privileged and cannot be put in evidence, although on file in a court of probate. Liggett v. Glenn (C. C. A.), 51 Fed. R. 381. Cf. Mutual L. Ins. Co. v. Selby (C. C. A.), 72 Fed. R. 980; Edison El. L. Co. v. U. S. El. L. Co., 44 Fed. R. 294, 297, 299. 20 Sims v. Hundley, 6 How. 1. 21 M'Niel v. Holbrook, 12 Pet. 84. 22 Green v. Terwilliger, 56 Fed. R. 384, 393. 24 23 Potter v. National Bank, 102 U. S. 163; Goodwin v. Fox, 129 U. S. 601, 631. In civil actions at common law the Federal courts follow the rulings of the State courts as to the competency of evidence in the Fifth, Sixth and Seventh circuits. Hinds v. Keith (C. C. A.), 57 Fed. R. 10; Baltimore & O. R. Co. v. Rambo (C. C. A.), 59 Fed. R. 75; Stewart v. Morris (C. C. A.), 88 Fed. R. 461. Contra in the Eighth circuit. Union Pac. Ry. Co. v. Yates (C. C. A.), 79 Fed. R. 584. 24 20 St. at L. 30: Allison v. U. S., 160 U. S. 203; Wolfson v. U. S. (C. C. A.), 101 Fed. R. 430; S. C.,102 Fed. R. 134. It has been held that this does not render competent a defendant who, by a previous conviction of an infamous crime, had lost the privilege of testifying. U. S. v. Hollis, 43 Fed. R. 248. |