GENERAL STATUTES OF MASSACHUSETTS. 327 the former State law of 1856, with some slight additions, but no substantial alteration. Section 14, ch. 131, Gen. St., is as follows: "Parties in civil actions and proceedings, including probate and insolvency proceedings, suits in equity, and divorce. suits (except those in which a divorce is sought on the ground of alleged adultery of either party), shall be admitted as competent witnesses for themselves or any other party; and in any such case in which the wife is a party or one of the parties, she and her husband shall be competent witnesses for and against each other, but they shall not be allowed to testify as to private conversations with each other; provided, that where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party shall not be permitted to testify in his own favor; and where an executor or administrator is a party, the other party shall not be permitted to testify in his own favor, unless the contract in issue was originally made with a person who is living and competent to testify, except as to such acts and contracts as have been done or made since the probate of the will or the appointment of the administrator." This § 14 was, in May 14, 1864, ch. 304, so amended "as that executors, administrators, guardians, trustees, assignees, and all other persons acting only in a representative capacity, who are parties to any civil action or proceeding, as therein defined, shall be competent witnesses for themselves or any other party, notwithstanding the death or insanity of one of the original parties to the contract or cause of action in issue." And if either party to a suit or proceeding shall ་ 328 STATE LAWS NOT ONLY RULES OF DECISION give his deposition in his own behalf and subsequently die or become insane, and such deposition shall be admissible and actually used in evidence at the trial after such decease or insanity occurs, the other party shall be admitted to testify." And further the Massachusetts legislature, on May 9, 1865, ch. 207, enacted that "whenever the contract or cause of action in issue and on trial was made or transacted with an agent, the death or insanity of his principal shall not prevent any party to the suit or proceeding from being a witness in the case: provided, such agent shall be living and competent to testify." Section 2." Whenever the contract or cause of action in issue and on trial was made or transacted with the wife of any one of the parties, in the absence of her husband, she may be a witness for either party, although not joined in the suit; but she shall not be allowed to testify as to private conversations with her husband." The foregoing provisions contain all of the enactments of Massachusetts at present in force in reference to parties and their admissibility as witnesses. And if the State laws, which were formerly rules of decision for the Federal courts, have now become also rules of evidence in admiralty, as well as in equity and at common law; it would seem to be difficult to conceive, how any mode of judicial interpretation could well be devised, or adopted, to exclude parties from testifying in the admiralty courts, unless under and by virtue of the exceptions contained in these acts. The exceptions are generally, the death of one of the original parties to a statement, agreement, or other transaction between them; or where one of the parties to a proceeding in law, equity, or admiralty, is an executor, administrator, or guardian. BUT ALSO RULES OF EVIDENCE. 329 By the State laws of Ohio, Georgia, Massachusetts, and other States, parties are admitted as witnesses competent, to a certain extent, to testify; and, to the same extent, they are equally admissible in the Federal courts, notwithstanding they may be interested in the result of a trial. By the act of Congress of 1862, already referred to, this privilege or right would seem to be accorded and extended to parties in the Federal courts, whether the trial or matter in controversy be at common law, in equity, or in admiralty. The rule is clearly designed to be uniform in all these several tribunals, whether sitting as circuit or district courts. And the whole of all the recent legislation, by the national or State legislatures, was manifestly adopted for the obvious purpose of investing parties with a new legal character, under the modified rules of evidence. The design of all such legislation is clearly to augment, and not to abridge, the personal privileges of parties to suits; and it would seem that every successive act of any legislature, is intended to be progressive and not retrogressive, in regard to the effect of interest upon competency to testify. Formerly the rule was rigidly and inflexibly otherwise; and whenever there appeared to be a legal interest in the result of a proceeding in admiralty, it operated as a disqualification; rendering parties incompetent to testify, according to the well-known rule, so long prevalent and practised upon, in the common law courts. But of late, this precise rule of evidence has become gradually relaxed, not only from necessity, but by an advanced legislation, and agreeably to a more liberal 330 PARTIES IN ADMIRALTY GENERALLY and catholic administration of the principles of the maritime law as now interpreted. At the present time, therefore, it may be assumed that all persons, in Massachusetts, may be admitted to be sworn and examined as competent witnesses in the admiralty courts, as freely as it would be practicable for them to be so sworn and examined in the State courts. If not excluded in the State courts, they certainly should not be in the Federal courts. And the only existing legal restrictions are to be found in the acts of the legislature of this State. The provisions of the General Statutes of Massachusetts, and the subsequent additional acts, have been already cited in the present chapter. In addition to the State provisions and that of the United States of July 2, 1864, it may be necessary to refer to and cite the subsequent act of Congress passed March 3, 1865; whereby it was enacted 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." On account of the recent date of these enactments, no special judicial construction has been called for, upon any of them, except that of March 3, 1865, just cited. The particular expression, unless "required to testify thereto by the court," on the first impression, seemed to be intended to clothe the court with a species of discretionary authority, to summon to its aid, in a case of COMPETENT TO TESTIFY. 331 doubt or difficulty, even a party, when not called by the opposite party, should such court deem it expedient so to do, in order to secure a just and fair administration of the law. In admiralty cases, therefore, it has been assumed, that if suits are by or against executors, administrators, or guardians, and the evidence aliunde should be insufficient, and leave a judge in doubt as to the real legal merits of a transaction, it would be entirely competent for him, in the exercise of a sound discretion, to require the presence and aid of an original party, or any other party interested, for the purpose of removing that doubt, and solving the difficulty. Hence it has been broadly stated, that hardly any person is now legally excluded from being admitted as competent to testify in admiralty proceedings. Whether the same rule shall prevail in trials at common law and in equity, is a consideration somewhat foreign to the end and aim of the present treatise; but if, in either case, a different rule should prevail there, it might materially affect the rules regulating all proceedings in admiralty also. Therefore, it seems fit to notice any construction, judicially given, and occurring since the preceding portion of this chapter was prepared for the press, which may, remotely or by analogy, have a bearing upon what have been stated to be the logical result and legal deductions, from the recent State and National legislation, as it may have affected the rules of evidence, concerning the competency of parties as witnesses. Id certum est quod certum reddi potest, is a maxim as applicable to a contract, conveyance, or lease, as to a custom, award, or performance. And if, at any time, the circumstantial evidence be insufficient to enable a |