by John Marshall Harlan

“ In each sentence or paragraph of the charge, to which exception was especially taken, the court informed the jury that the evidence tended to show certain facts which are detailed in the charge. The point is made here that the evidence did not tend to show any such state of facts as the charge of the court implied. But counsel overlook, or fail to give proper force to, the circumstance that the bill of exceptions, not purporting to contain all the evidence adduced before the jury, itself states that there was evidence tending to show the facts set forth in the charge. ”

“ But whether a party to or only interested in the issue, the witness is not to be excluded in the courts of the United States, upon either ground, except that in actions in which judgment may be rendered for or against an executor, administrator, or guardian, no party to the action can 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. ”

“ The second clause is in the words of the proviso of the act of March 3, 1865, amending the third section of the act of July 2, 1864 (id. 533) , while the last clause is founded upon the act of July 16, 1862. 12 id. 588.
The existing statute (Rev. Stat., sect. 858) seems too plain to require construction. ”