Under R. S. § 858, as amended January 29, 1906, it is provided that "the competency of a witness to testify in any civil action, suit, or proceeding in the courts of the Unit ed States shall be determined by the laws of the state or territory in which the court is held." U. S. Comp. Stat. (Supp.) 1911, 271.
It does not apply to questions of general jurisprudence ; Lake Shore & M. S. Ry. Co. v. Prentice, 147 U. S. 101, 13 Sup. Ct. 261, 37 L. Ed. 97 ; or of general commercial law ; Swift .v. Tyson; 16 Pet. (U. S.) 1, 10 L. Ed. 865; Oates v. Bank, 100 U. S. 239, 25 L. Ed. 580; see COMMERCIAL LAW (but they should have due weight given to them ; Farmers' Nat. Bank v. Mfg. Co., 52 Fed. 191, 3 C. C. A. 1, 17 L. R. A. 595) ; or to the general prin ciples of equity ; Neves v. Scott, 13 How. (U. S.) 271, 14 L, Ed. 140 ; or to criminal cases; id.; or questions of a general nature, not based upon a local statute ; Hough v. R. Co., 100 U. S. 213, 25 L. Ed. 612 ; Myrick V. R. Co., 107 U. S. 109, 1 Sup. Ct. 425, 27 L. Ed. 325. It is said, somewhat vaguely, that ques tions of general law are to be uncontrolled by decisions of the state courts, except to give them such weight as may be deemed proper, with due respect to their character as co-or dinate tribunals. It is difficult to deduce from the cases any general rule or principle, but among cases thus held to be questions of general law are : What is or is not a naviga ble stream ; Chisolm v. Caines, 67 Fed. 285 ; whether a carrier may stipulate for exemp tion from liability for its own negligence ; Eells v. Ry. Co., 52 Fed. 903; whether two employes of the same master are fellow servants ; Baltimore & 0. R. Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772. In the section lagt referred to, the word "laws" does not include the decisions of the local tribunals, for these are only evidence of what the laws are; Swift v. Tyson, 16 Pet. (U. S.), 1, 10 L. Ed. 865. This generalization of Judge Story is the subject of forcible comment by Betts, J., in his opinion in the case of In re Barry, 42 Fed. 132, and re printed in 136 U. S. 597, 34 L. Ed. 503, note.
The decisions of the state appellate courts are treated as being as obligatory as stat utes ; Swift v. Tyson is also cited in Coleman v. Newby, 7 Kan. 92, to the proposition that courts could never, in any manner, make laws ; in Phelps v. City of Panama, 1 Wash. Ter. 523, it was held that "laws of the Unit ed States" embraced all rules of property and conduct ; and in Lycoming I. Co. v.
Wright, 60 Vt. 523, 12 Atl. 108, it is held that the expression "lavis of the state" in cludes both statute and common law ; and Ex parte Waddell, Fed. Cas. No. 17,027, did not include judicial decisions or rules of courts but only local statutes and local usag es of a fixed and permanent operation ; but the statutes are to be read in connection with the constructions of the highest local courts ; such judicial exposition being re garded as becoming part of the acts by de fining their true meaning, following in this view, Bank of U. S. v. Daniel, 12 Pet. (U. S.) 32, 53, 9 L. Ed. 989. It is to be observed that while the opinion in Swift v. Tyson uses precisely the expression quoted which has been frequently the subject of comment, it is claimed that this language is intended to apply to questions of a general nature and that the word "laws" in the Judiciary Act does include the construction of statutes by local tribunals and their decisions as to those having a permanent locality. This under standing of Judge Story's opinion is fre quently expressed by the courts ; Pabst Brew ing Co. v. Thorley, 145 Fed. 117, 76 C. C. A. 87; In re Hopper-Morgan Co., 154 Fed. 249.
Where contracts are based upon laws then believed to be constitutional, there being at the time no adjudication on such laws in the state courts declaring them invalid, the fed eral courts will not follow subsequent deci sions of state courts thereon, but will con strue such statute for themselves ; Township of Pine Grove v. Talcott, 19 Wall. (U. S.) 666, 22 L. Ed. 227.
And while the rule is thoroughly settled that remedies in the courts of the United States are, at common law or in equity, ac cording to the essential nature of the case, uncontrolled in that particular by the prac tice of the state courts ; New Orleans v. Con struction Co., 129 U. S. 45, 46, 9 Sup. Ct. 223, 32 L. Ed. 607; yet an enlargement of equi table rights by the state statute may be ad ministered by federal courts as well as by the courts of the state ; and when the case is one of a remedial proceeding, essentially of an equitable character, there can be no objection to the exercise of the jurisdiction ; In re Broderick's Will, 21 Wall. (U. S.) 503, 520, 22 L. Ed. 599; Holland v. Challen, 110 U. S. 15, 25, 3 Sup. Ct. 495, 28 L. Ed. 52; Frost v. Spitley, 121 U. S. 552, 557, 7 Sup. Ct. 1129, 30 L. Ed. 1010.