history of all that tended to explain the nature and degree of his complicity with the acts of the witness. The scheme of the parties and the acts following were part of one transaction; and when a witness voluntarily testifies in chief on a particular subject, he may be cross-examined on that subject, even though his answers may criminate or disgrace him. 18 If the witness had been compelled to give his version of the agreement, it would have aided the jury in determining how far his testimony was credible. He had already testified that there were other parties to the criminal agreement, but it was neither his moral duty nor legal privilege to protect them at the expense of the defendant on trial. If, when he had given his version of the plan, he had stated there were no other parties to it than defendant and himself, he would have shown that this or his former statement was untrue; if he named other parties, they might have been called to disprove the accusation, and thus discredit the whole of his testimony. It is enough, however, to say that he had already admitted that the conspiracy contemplated and provided for the commission of the particular overt act charged in the indictment. If a witness discloses a part of a transaction with which he was criminally concerned, without claiming his privilege, he must disclose the whole.19

21

While no agreement can deprive a party of his right to refuse discovery tending to establish a criminal charge against him, 20 the privilege may be lost by the witness waiving the right to take the objection; or by the liability ceasing; 22 and so, where an offense is barred by statute of limitations; 23 but it has even been held that a witness is protected although he has received a pardon.24 In the Massachusetts case of Commonwealth v. Nichols,25 it was held that a person accused of a crime and voluntarily testifying in his own behalf under a statute allowing him so

18 Town v. Gaylord, 28 Conn. 309.

19 10 Fost. 540.

20 Lee v. Read, 5 Beav. 381; Robinson v. Kitchen, 21 Ib. 365, 370; Hare on Disc.

2 Paxton v. Douglas, 16 Ves. 242; Corporation of Trin. House v. Burge, 2 Sim. 411; Williams v. Farrington, 3 Bro. C. C. 38, 40; Parkhurst v. Lowten, 1 Mer. 391, 400; Hambrook v. Smith, 17 Sim. 209, 215; Pye v. Butterfield, 5 B. & S. 829, 837.

22 Id.; Wigram on Disc. 83.

23 Calhoun v. Thompson, 56 Ala. 166.

24 1 Stark. on Ev., 3d ed., 192.

25 114 Mass., 285.

to do, waives thereby his privilege of not be ing compelled to criminate himself. 26 But, the contrary has been held in other States.27 And in Temple v. Commonwealth, 28 it was held that the fact that a witness testified before the grand jury,29 or before a coroner;30 and, on his evidence, an indictment was found, will not deprive him of his privilege of declining to testify on the ground that he would criminate himself, on the trial of the party so indicted on his testimony. And if the witness answers questions improperly put, his answers may afterwards be used as evidence against him; while, on the other hand, no inference as to the truth of the suggestion can be drawn from the fact that the witness declines to answer; 31 and where, under statutes enabling defendants in criminal cases to testify in their own behalf, they refuse to answer, the failure to do so can not be taken into consideration by the jury in determining whether or not they are guilty; 32 and such refusal can not be used against a witness upon his subsequent trial for the same offense. 33 But, in India the court may presume that, if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavorable to him.34

To the general rule, however, certain exceptions have been established. For instance, in furtherance of the object of the bankrupt laws, to procure a discovery and equal distribution of the assets among all the creditors, a qualification has prevailed in bankruptcy; and it is now well settled that, while a witness is entitled to the usual protection,35 the bankrupt himself is bound to answer all questions respecting his property, be the

26 And see 101 Mass., 200.

27 Bigler v. Reyher, 43 Ind. 112; Barker v. Kuhn, 38 Iowa, 895; Bobo v. Bryson, 31 Ark. 387; Dutlenhofer v. State, 34 Ohio, 6 Rep. 726.

28 5 Va. L. J. 366.

29 See 2 Cent. L. J. 180.

30 Cullen's Case, 24 Gratt. 624; cf. R. v. Widdop, L. R. 2 C. C. R. 3.

31 Stockfleth v. De Tastet, 4 Camp. 10; Smith v. Beadrali, 1 Ib. 30; R. v. Merceron, 2 Stark. 366; Rose v. Blakemore, Ry. & M. 384.

32 Commonwealth v. Harlow, 110 Mass. 411; Commonwealth v. Nichols, ubi supra; Commonwealth v. Scott, 5 Cent. L. J. 415.

33 State v. Bailey, 20 Am. L. Reg. 552.

34 Ind. Ev. Act, s. 114, Illust. (A); see also s. 148

(4).

35 Re Firth, Ex parte Schofield, 5 Ch. Div. 230; s C., 46 L. J. Ba. 112; s. C., 36 L. T. (N. S.) 281

consequences what they may, with this exception that he can not be required to answer a question whether he has done some specific act clearly of a criminal nature;36 but, he can not, when examined touching his estate, trade or dealings, refuse to give any information respecting them, merely because such information may incidentally show that he has been guilty of some crime or misdemeanor;37 and his examination may be used as evidence against him on a criminal charge; 38 and, as a general rule, all depositions on oath legally taken are evidence against a witness on a subsequent criminal charge, especially if he had not objected to them as criminatory.39 As to As to husbands and wives:40 "These cases show that even under the old law, which made the parties and their husbands and wives incompetent witnesses, a wife was not incompetent to prove matters which might tend to criminate her husband. R. v. Cliviger assumes that she was, and was to that extent overruled. The cases, however, do not decide that if the wife claimed the privilege of not answering, she would be compelled to do so, and to some extent they suggest that she would not." 41 And see Starkie's Evidence ;42 and also Powell on Evidence,43 where it is observed: "The question whether a wife is bound to answer questions criminating her husband is not in a satisfactory state." In equity, however, there is no doubt that a wife can not be compelled to answer any question which may expose her husband to a charge of felony ;44 but as to high treason, see R. v. Griggs. 45 And as to "communications" between husband and wife during marriage, or when it is terminated by death or divorce, disclosure is not compella

36 Ex parte Cossens, Buck, 540; Ex parte Kirby, M. & M. 225; Ex parte Heath, 2 D. & C. 214; Mont. & Bl. 184; Re Feaks, Ib. 226; Re Smith, Ib. 230; Ex parte Pratt, 1 G. & J. 62.

37 Ib.

38 R. v. Scott, 1 D. & B. 47, 2 Jur. N. S. 1096; R. v. Sloggett, 1 Dear. 656; 2 Jur. N. S. 476; R. v. Skeen, 1 Bell C. C. R. 97; 5 Jur. N. S. 151; R. v. Robinson, L. R. 1 C. C. R. 80; 36 L. J. M. C. 78; R. v. Widdop, L. R. 2 C. C. R. 3; 27 L. T. N. S. 693; 42 L. J. M. C. 9, (and see 5 & 6 Vic., c. 39, 24 & 25 Ib., c. 96, 8. 85, as to examination of agent guilty of misdemeanor.

89 R. v. Coote, L. R. 4 P. C. 599; 42 L. J. P. C. 445. 40 See 1 Hale P. C. 301; R. v. Cliviger, 2 T. R. 263; Cartwright v. Green, 8 Ves. 405; R. v. Bathwick, 2 B. & Ad. 639; R. v. Worcester, 6 M. & S. 194. 41 Stephen's Ev., art. 120, n.

42 2 Stark. Ev. (3d ed.) 551.

ble.46 And in reference to the Married Women's Property Act, 1870, it has been said: "It is conceived that there is nothing in the statute to vary the rule by which communications between husband and wife, made during marriage, are held privileged and inadmissible in evidence, such privilege being based on general grounds of public policy.47 For to admit such evidence would occasion domestic dissension and discord; it would compel a violation of that confidence which ought, from the nature of the relation, to be regarded as sacred; and it would be arming each of the parties with the means of offense, which might be used for very dangerous purposes;48 and so, even though upon consent. 49 But the married Women's Property Act, 1882,50 coming into operation on the 1st day of January next (repealing the former acts), introduces an important alteration; for by section 12, giving to married women a right to the same civil and criminal remedies in respect of separate property as if they were unmarried, it is provided that "in any proceeding under this section, a husband or wife shall be competent to give evidence against each other, any statute or rule of law to the contrary notwithstanding;" and see s. 16 as to the criminal liability of wives in reference to the property of their husbands.

The cause celebre of United State States v. Guiteau, is the most recent case on the subject of privilege as regards confidential communications between husband and wife, which came under consideration from a novel point of view, so that the judgment 51 is the more worth quoting from. Said James, J., on the appeal to the Supreme Court of Columbia: "Mrs. Dunmire, who was married to the defendant in July, 1869, and was his wife for four years, but had been divorced from him, was asked the following ques'ion: 'I will ask you to state to the jury whether, in your association with him (the defendant), you ever saw anything that would indicate that he was

46 O'Connor v. Majoribanks, 4 M. & Gr. 435; Monroe v. Twisleton, Peake, 221.

47 Griffith's Mar. W. Prop. Acts (4th ed.), 53; see Taylor's Ev. (6th ed.), 810; 16 & 17 Vic., c. 83, s. 3. 48 1 Stark. Ev. (3d ed.), 70; 2 Ib. 549; Co. Litt. 6, b; 2 Haw,. c. 46; 2 Hale, 279.

49 Barker v. Dixie, Cas. temp. Hardw. 264.

50 45 & 46 Vic., c. 75.

51 Reported in the August issue of the Western Jurist.

a man of unsound mind?' The court had ruled that the confidential communications between husband and wife were protected in the examination. The question was admitted under exception, and the answer was: never did.' This question called for the witness' observation of the defendant's soundness or unsoundness of mind, and the objection goes partly on the ground that, notwithstanding the ruling of the court that confidential communications between the husband and the wife were protected, she may have included, as a part of the basis of her answer, what are understood as communications from her former husband. We think that the exhibition of sanity or insanity is not a communication at all, in the sense of the rule which protects the privacy and confidence of the marriage relation, any more than the height or color, or blindness, or the loss of an arm of one of the parties is a communication. The rule which is supposed to have beed violated, was established in order. that the conduct, the voluntary conduct, of married life might rest secure upon a basis of peace and trust, and relates to matters which the parties may elect to disclose or not disclose. It was provided in order that matters should not come to the light, which would not do so at all without a disturbance and disregard of the bond of peace and confidence between the married pair. Therefore it has not been applied to any matter which the husband, for example, has elected to make public, by doing or saying it in the presence of third persons along with his wife; and it can not be applied to that which, whether he will or no, he inevitably exhibits to the world as well as to his wife. Some diseases a husband may conceal, and he may choose whether to reveal them or not. If he should reveal the existence of such a disease to his wife, in the privacy of their relation, she may never dis close that communication, even after the relation between them has ceased. But sanity or insanity are conditions which are not of choice, and when the disease of insanity exists, the exhibition of it is neither a matter of voluntary confidence nor capable of being one of the secrets of the marriage relation. The fact that there are instances of cunning concealment for the time, does not affect the general truth that insanity reveals itself, whether the sufferer will or no, to friends and ac

quaintances as well as to the wife. In short the law can not regard it or protect it as one of the peculiar confidences of a particular relation. It may be added that it is difficult to perceive, in any view of this subject, how the witness' denial that she had seen indications of insanity can be said to reveal any fact which her husband had communicated to her. If our opinion that sanity or insanity can not be a communication within the meaning of the rule should be wrong, it must be remembered. that sanity is a presumption of law, and that the wife would seem to reveal nothing to the world, unless she should say that the existence of insanity in her husband had been communicated to her by his conduct during their connection. We are of opinion that no error was committed in receiving this evidence.' But while, apart from inter-communications, husband and wife are now competent and compellable witnesses against each other in civil, but not, save so far as the law act, 1882, previously cited, in criminal proceedings, has been altered by the Married Women's Property Act;52 the Law of Evidence Amendment Act, 1869,53 renders the parties to proceediugs instituted in consequence of adultery, and the husbands and wives of such parties competent witnesses; with the proviso that no witness to any proceeding, whether a party or not, is to be liable to be asked or bound to answer any question tending to show that he or she has been guilty of adultery, unless such witness has already given evidence in the same proceeding in disproof of such adultery. The effect of this statute has already been discussed in a former volume;54 but, it may be added, that in New York, while husband and wife were rendered competent witnesses in such actions in 1879, the legislature in 1880 thought fit to revert to the original rule, holding them incompetent to establish any fact, except that of marriage. But in general they are deemed competent witnesses for or against each other in civil causes, except with regard to confidential communications and actions of crim. con. By the act of May 10, 1867, entitled "An act to enable husband and wife, or either of them, to be a witness for or against each other, or on behalf of any party, in certain cases," it is provided that:

52 14 & 15 Vic., c. 99; s. 3; 16 & 17 Ib. c. 83. 53 32 & 32 Vic., c. 68, s. 3.

51 14 Ir. L. T. 317.

"Nothing herein contained shall render any husband or wife competent or compellable to give evidence for or against each other

in any action or proceeding for or on account of criminal conversation." And this exception was considered in the notorious TiltonBeecher case (1875), in reference to the admission of Mr. Tilton as a witness. The defendant claimed that Mr. Tilton was excluded altogether, on the ground that the issue was really the adultery of the wife (Mrs. Tilton), and, therefore, the plaintiff's testimony would be "against" his wife. Among others, the case of Dann v. Kingdom,55 was cited where the husband was held to be incompetent under the act of 1867, to prove the fact of marriage, in an action of crim. con. On the other hand, it was argued for the plaintiff that Mr. Tilton was not called to testify "against" his wife, because she was not a party. In refutation of the authority of Dann v. Kingdom, the case of Petrie v. Howe, 56 decided in the same department, was cited. In the latter case it seems that the husband was allowed to testify in an action of crim. con., without objection either from counsel or court, and the point was neither raised by counsel nor passed upon by the court at general term. The defense also contended that the exclusion of the plaintiff would give the defendant an undue advantage, and if plaintiff was excluded as a witness he could not give his testimony even on general or collateral matters. Judge Neilson decided that the plaintiff was competent to be sworn and to testify in his own behalf; but as to the principal question at issue, he was not competent to testify in respect to any confidential communication.-Irish Law Times.

2. Upon a bill of review to correct a decree given in favor of the United States the subpoena to appear and answer may be served on the district attorney.

3. In an action brought by an informer upon secs. 3490-3 of the Revised Statutes to recover damages and forfeitures for collecting false claims from the treasury, the person who sues represent the United States therein, and also in all suits and proceedings brought or taken in aid of an execution or to enforce the judgment therein, and is entitled to control the same.

Geo. H. Williams, for plaintiffs; James F. Watson, for defendant.

DEADY, J., delivered the opinion of the court: On August 1, 1882, the plaintiffs filed in this court a bill of review to procure, as to them, the modification of a final decree of this court, given in the case No. 356 of the United States v. William C. Griswold and others, including said plaintiffs, and signed and enrolled on August 12, 1881, for error apparent upon the face thereof.

The bill of review states that on January 29, 1880, the amended bill was filed by the United States in the original suit, and sets it forth in full. From this, among other things, it appears that on May 27, 1877, the United States, by B. F. Dowell, informant, brought an action against W. C. Griswold under secs. 3490 and 5438 of the Revised Statutes, to recover certain damages and forfeitures for knowingly collecting from the treasury of the United States, on January 11, 1879, false claims to the amount of $17,000, in which on July 30, 1879, the plaintiff obtained judgment for $35,228 and costs and disbursements amounting to $2,821.60; that said Griswold, at the date of said judgment, was the owner of certain real property situate in Salem. Or, including the west half of lots 1, 2, 3 and 4, of block 73, and lot 8 in block 10, which had been illegally sold and purchased by the plaintifis herein, upon certain judgments held by them against said Griswold contrary to the priority of the United States, and asked to have said proceedings set aside and the property sold, and the proceeds applied upon the aforesaid judgment of the United States v. Griswold. By the final decree it was provided, so far as the plaintiffs herein are concerned, that the property aforesaid should be sold by the master of this court, and the proceeds applied first, to the satisfaction of the plaintiff's liens thereon, and the remainder, if any, upon the judgment of the United States.

In the bill of review it is alleged that the Unijed States had no right to priority of payment out of this property and, therefore, the decree, so far as it provides for its sale and the disposition of the proceeds, is erroneous.

On August 2d, the subpoena issued upon the bill of review was served on Mr. James F. Watson, the United States District Attorney, together with a copy of the bill and a notice from the plaintiffs, to the effect that the bill had been filed for the purpose, so far as they are concerned, of procuring a reversal of the decree of August 12, 1881, and requiring him "to appear and answer said

bill, on the first Monday in September, 1882, or judgment thereon will be taken for the want of an answer." On September 4, the district attorney filed a motion to dismiss the bill for the reasons following: 1. That the United States "can not be sued herein without its consent," and that it has not nor does not consent to be made a party herein." 2. No process has or can be served on the United States by which it has been or can be "brought as a defendant into this court." 3. This court neither has nor can acquire "jurisdiction over the United States herein."

The motion to dismiss has been argued by counsel without any question being raised as to this mode of making the objection to the jurisdiction of the court.

a

to set aside and correct the former decree." In the cases of the United States v. Lemore, 4 How. 226, and Hill v. United States, 9 How. 386. it was held that the defendant in a judgment obtained by the United States could not maintain suit to enjoin the latter from enforcing the same, upon the ground that the United States could not be sued without its consent. But in the subsequent case of Freeman v. Howe (2d How. 460), it was held that "a bill filed on the equity side of the court to restrain or regulate judgments or suits at law in the same court, and thereby prevent injustice or an inequitable advantage under mesne or final process, is not an original suit but auxiliary and dependent, supplementary merely to the original suit out of which it had arisen, and is maintained without reference to the citizenship or residence of the parties. This statement of the law seems to be in conflict with the ruling in the case of United States v. Lemore, and Hill v. United States, supra, for if the court has jurisdiction of such auxiliary suit without reference to the citizenship or residence of the parties, it must be, because having acquired jurisdiction of the subject matter and the parties in the original suit, it does not thereafter lose it because at some subsequent stage of the litigation before it, the exigency of its legal procedure requires the parties to change position as plaintiff and defendant.

It is well understood that the United States can not be sued unless with its own consent, and that it has not given such consent except in a few instances, of which this is not one. United States v. Eckford, 6 Wall. 487. But an auxiliary, or supplemental proceeding against the United States, growing out of an action instituted by it, is not generally considered a suit against the United States in that sense. Therefore a writ of error to reverse a judgment obtained by the United States may be sued out and prosecuted by the defendant therein. The proceeding by this writ, though technically a new action brought to set aside the judgment in the old one, and it may be to recover what was lost by it, is nevertheless regarded from this standpoint, as one in which the United States is not thereby brought into court to answer the claim of the plaintiff in error without its consent, but rather one by which it is continued in court for the purpose of contesting the allegations of court for the purpose of contesting the allegations of error in an action voluntarily instituted there by itself. Now, a bill of review, particularly as in this case, when it is brought for error in law apparent upon the face of the decree, is in the nature of a writ of error. (Story's Equity Pleading,sec. 403, et seq). Indeed, the former has the same scope and purpose in a suit in equity that the latter has in an action at law, "to procure an examination and alteration on a reversal of a decree made upon a formal bill" between the same parties. Id. sec. 403. No case has been cited by counsel in which this question has been directly considered. United States v. Atherton, 102 U. S. 372, was a suit to set aside a decree of the District Court of California confirming a claim under the act for the settlement of private land claims in that State. But this decree was given upon a bill of review brought by the grantee of the claimant against the United States four years after the court had by a former and first decree rejected the claim. No question seems to have been made as to the jurisdiction of the district court to give a decree upon a bill of review against the United States; and Mr. Justice Miller, in the consideration of the case, said: "It is not denied by counsel, nor can it well be doubted that the district court had jurisdiction by bill of review

And with like reason, if the court acquires jurisdiction in an action in which the United States is plaintiff, it must retain that jurisdiction so long as the litigation may properly be continued before it, according to the usual course of procedure therein. True, the United States is a sovereign and can not be sued in its own courts without its consent; but when it elects to go into court as a suitor, it must submit to the usual course of procedure therein-at least so far as may be necessary to enable the defendant to maintain his rights.

A Bill of Review is an established mode of proceeding in a court of equity by which the defendant may have a decree given against him reviewed for errors upon its face by the court that pronounced it. It is only a more formal mode of rehearing the case, and is an incident of the original suit. When called upon to answer such a bill, the United States is not sued in any proper sense of the term, but only to show why a decree which it has obtained against the plaintiff, that is alleged to be erroneous and unjust, shall not be modified or reversed. My conclusion is, that the plaintiffs may maintain this bill to review the decree against them; and the next question is, how shall the United States be served with the subpœna or notified of the proceeding? Being a body politic, service must be made upon some natural person for it. In the absence of any statute upon the subject, all considerations of fitness and convenience point to the district attorney as the proper person. In Conkling's Treatise, 687, it is stated that in the case of a writ of error against