be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply. Under this provision it becomes necessary to consider what is meant by the "laws of the several states." In those commonwealths deriving their jurisprudence from the English common law, the body of law is either statutory or unwritten. The evidence of the latter is the decisions of the courts of the state administering it. Hence it becomes necessary to consider how far each of these two sources of state law is applied in the federal courts. SAME-STATUTES OF LOCAL STATE 6. The statutes of a state, in so far as they regulate substantive rights, and also in so far as they regulate remedies on the common-law side of the court, are adopted and enforced by the federal courts where they do not conflict with the federal Constitution and statutes. Under this principle, state statutes of limitations are enforced by the federal courts in common-law actions. The statute of frauds of a state is enforced in the federal courts. State statutes giving a right of action for damages resulting in death authorize such actions in the federal as well as the state courts.10 State statutes permitting 8 Bauserman v. Blunt, 147 U. S. 647, 13 Sup. Ct. 466, 37 L. Ed. 316; Security Trust Co. v. Black River Nat. Bank, 187 U. S. 230, 22 Sup. Ct. 52, 47 L. Ed. 147; Newbery v. Wilkinson (C. C.) 190 Fed. 62. See "Courts," Dec. Dig. (Key-No.) §§ 366, 375; Cent. Dig. § 384. Moses v. Lawrence County Bank, 149 U. S. 298, 13 Sup. Ct. 900, 37 L. Ed. 743. See "Courts," Dec. Dig. (Key-No.) § 371; Cent. Dig. 88 972-974. 10 Dennick v. Central R. Co. of New Jersey, 103 U. S. 11, 26 L. Ed. 439; Atchison, T. & S. F. R. Co. v. Sowers, 213 U. S. 66, 29 Sup. Ct. a plea of set-off, legal in its nature, authorize the filing of such a plea in similar cases in the federal courts, and a cross-judgment upon it, but not with the effect of ousting the equitable jurisdiction of the federal courts, or of conferring an equitable jurisdiction or allowing equitable defenses in such courts on their common-law side, for the distinction between law and equity is sedulously guarded in these courts.11 State statutes permitting compulsory surgical examinations apply to the federal courts, except where their special provisions conflict with some federal statute.12 But the mode of compelling an adverse party to produce documents is governed by the federal statutes.13 Statutes of Evidence 14 State statutes of evidence apply in the federal courts, being expressly adopted as to competency of witnesses.14 Before the enactment of section 858, it had been held that state statutes of evidence were adopted by section 721 as rules of decision in the federal courts on the common-law side.15 397, 53 L. Ed. 695; Southern Pac. Co. v. Da Costa, 190 Fed. 689, 111 C. C. A. 417. See "Courts," Dec. Dig. (Key-No.) § 371; Cent. Dig. § 975. 11 Scott v. Armstrong, 146 U. S. 499, 512, 13 Sup. Ct. 148, 36 L. Ed. 1059; Charnley v. Sibley, 73 Fed. 980, 20 C. C. A. 157; Davis v. Bessemer City Cotton Mills, 178 Fed. 784, 102 C. C. A. 232; Armstrong Cork Co. v. Merchants' Refrigerating Co., 184 Fed. 199, 107 C. C. A. 93; post, p. 390. See "Courts," Dec. Dig. (Key-No.) §§ 335, 371; Cent. Dig. §§ 902-9072. 12 Union Pac. Co. v. Botsford, 141 U. S. 250, 11 Sup. Ct. 1000, 35 L. Ed. 734; Camden & S. R. Co. v. Stetson, 177 U. S. 172, 20 Sup. Ct. 617, 44 L. Ed. 721; Hanks Dental Ass'n v. International Tooth Crown Co., 194 U. S. 303, 24 Sup. Ct. 700, 48 L. Ed. 989; post, p. 403. See "Courts," Dec. Dig. (Key-No.) § 351; Cent. Dig. § 924. 18 Schatz v. Winton Motor Carriage Co. (D. C.) 197 Fed. 777. See "Courts," Dec. Dig. (Key-No.) §§ 351, 376; Cent. Dig. §§ 924, 984. 14 U. S. Comp. St. 1901, p. 659, as amended June 29, 1906, 34 Stat. 618, c. 3608. 15 Ryan v. Bindley, 1 Wall. 66, 17 L. Ed. 559. See "Courts," Dec. Dig. (Key-No.) §§ 348, 376; Cent. Dig. §§ 922, 984. This does not mean, however, that state decisions as to common-law rules of evidence are binding on the federal courts. In questions of evidence not statutory, the latter courts decide for themselves what the common-law rule is.16 By the act of July 2, 1862,17 an express provision was inserted in the federal statute law, making the state laws as to the competency of witnesses the rules of decision in the federal courts, not only at common law, but in equity and admiralty also. Then, after the agitation in relation to the liberation of the negro race had resulted in their emancipation, it was thought necessary to extend the rules of evidence for their protection; and the consequence was a provision in the appropriation act of July 2, 1864,18 to the effect that in the courts of the United States there shall be no exclusion of any witness on account of color, nor, in civil actions, because he is a party to or interested in the issue tried. This was amended by the act of March 3, 1865,19 by adding the clause in reference to executors, administrators, and guardians. Until 1906 section 858 was a combination of these three acts. Its text was as follows: "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 to 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, 16 Union Pac. Ry. Co. v. Yates, 79 Fed. 584, 25 C. C. A. 103, 40 L. R. A. 553; Chicago & N. W. Ry. Co. v. Kendall, 167 Fed. 62, 93 C. C. A. 422, 16 Ann. Cas. 560. But compare Stewart v. Morris, 89 Fed. 290, 32 C. C. A. 203. See "Courts," Dec. Dig. (Key-No.) § 348; Cent. Dig. § 922. 17 12 Stat. 588, c. 189 (U. S. Comp. St. 1901, p. 659). 18 13 Stat. 351, c. 210 (U. S. Comp. St. 1901, p. 659). 19 13 Stat. 533, c. 113 (U. S. Comp. St. 1901, p. 659). 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." 20 But the amendment of June 29, 1906, cut out all but the last sentence, and rearranged it so as to read as follows: "The competency of a witness to testify in any civil action, suit or proceeding in the courts of the United States shall be determined by the laws of the state or territory in which the court is held." 21 This renders obsolete a number of decisions based on the variant language of the federal statute and various state statutes. Hence, under section 721, state statutes of evidence govern in the common-law courts in common-law cases, so far as they do not conflict with the other sections contained in title 13, c. 17, of the Revised Statutes, whilst under section 858 they apply to equity and admiralty courts as well, so far as they regulate the competency of witnesses, and do not conflict with other provisions of federal law.22 The act does not apply to criminal cases by its express language.23 20 U. S. Comp. St. 1901, p. 659. 21 34 Stat. 618, c. 3608; Rowland v. Biesecker, 185 Fed. 515, 106 C. C. A. 615. See "Courts," Dec. Dig. (Key-No.) § 376; Cent. Dig. §§ 925, 984. 22 CONNECTICUT MUT. LIFE INS. CO. v. TRUST CO., 112 U. S. 250, 5 Sup. Ct. 119, 28 L. Ed. 708; Ex parte Fisk, 113 U. S. 713, 5 Sup. Ct. 724, 28 L. Ed. 1117; Goodwin v. Fox, 129 U. S. 601, 9 Sup. Ct. 367, 32 L. Ed. 805. The recent act of February 26, 1913, makes special provision for proof of handwriting in the federal courts, allowing proof by comparison of different specimens either by witnesses or by the court or jury. See "Courts," Dec. Dig. (KeyNo.) 376; Cent. Dig. §§ 925, 984. 23 Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429; SAME UNWRITTEN LAW OF LOCAL STATE 7. The federal court adopts not only the statutory law of the state, but its unwritten law as well, in the main. It follows the decisions of the state courts generally, but with some exceptions hereinafter noted. SAME-CONSTRUCTION OF STATE STATUTE 8. Under this principle, the federal court adopts the construction placed upon the statute of a state by its court of last resort, if rendered before the cause of action arose. In such case the state decision construing the statute enters into and becomes part of the statute, as far as the federal court is concerned.24 Hence, if a state court of last resort holds one of its statutes to be valid as far as the state Constitution is concerned, such construction will be followed by a federal court.2 25 This principle applies to constructions of the state Constitution as well as to decisions on its Code.20 It applies to Hendrix v. U. S., 219 U. S. 79, 31 Sup. Ct. 193, 55 L. Ed. 102. See "Courts," Dec. Dig. (Key-No.) § 376; Cent. Dig. § 984. 24 First Nat. Bank v. Chehalis County, 166 U. S. 440, 17 Sup. Ct. 629, 41 L. Ed. 1069; Smiley v. Kansas, 196 U. S. 447, 25 Sup. Ct. 289, 49 L. Ed. 546. See "Courts," Dec. Dig. (Key-No.) § 366; Cent. Dig. §§ 954-968. Sup. Ct. 77, 44 L. Ed. 25 Brown v. New Jersey, 175 U. S. 172, 20 49; Ughbanks v. Armstrong, 208 U. S. 481, 28 582. See "Courts," Dec. Dig. (Key-No.) § 366; 26 Wilkes County v. Coler, 180 U. S. 506, 21 Sup. Ct. 458, 45 L. Ed. 642; Stanly County v. Coler, 190 U. S. 437, 23 Sup. Ct. 811, 47 L. Ed. 1126; Peters v. Gilchrist, 222 U. S. 483, 32 Sup. Ct. 122, 56 L. Ed. 278. See “Courts,” Dec. Dig. (Key-No.) § 366; Cent. Dig. §§ 956, 957. |