require the state court itself to set aside or vacate the judgments in question, it may, as between the parties before it, if the facts justify such relief, adjudge that Mayer shall not enjoy the inequitable advantage obtained by his judgments. A decree to that effect would operate directly upon him, and would not contravene that provision of the statute prohibiting a court of the United States from granting a writ of injunction to stay proceedings in a [185] state court. It would simply take from him the benefit of judgments obtained by fraud." Simon v. Southern R. Co. 236 U. S. 115, 59 L. ed. 492, 35 Sup. Ct. Rep. 255, was a suit in a circuit court of the United States to enjoin the enforcement of a judgment in a state court on the ground that it was obtained by fraud and without notice, and the defendant invoked the provision in § 265. The circuit court took jurisdiction and awarded the relief sought. That decision was affirmed by the circuit court of appeals, and, on a further appeal, was sustained by this court. At that time this court considered the provision in the light of its origin and purpose, reviewed the prior decisions,. and, in an extended opinion, having the approval of the entire court, reaffirmed the ruling in Marshall v. Holmes. National Surety Co. v. State Bank, supra, was a suit in a Federal court to obtain like relief in respect of a judgment in a state court on the ground that, through a mistake of a public officer, for which he alone was responsible, the judgment had been rendered without opportunity for putting in a defense, and this when there was one which was both meritorious and complete. The suit was not brought by the judgment defendant, but by one who was obligated to pay the judgment if it was enforced. The bill was dismissed because of the provision now relied on; but that decision was reversed by the circuit court of appeals in a well-considered opinion wherein it was said that in cases otherwise within the jurisdictional statute, "the circuit courts of the United States have the same jurisdiction and power to enjoin a judgment plaintiff from enforcing an unconscionable judgment of a state court, which has been procured through fraud, accident, or mistake, that they have to restrain him from collecting a like judgment of a Federal court" that the bill presented a new and justiciable case which had not been presented to nor decided by the state court, and did not "fall under the ban of the section of the statute under consideration;" and [186] that "in this case all these facts concur, the judgment which it is against conscience to allow to be used to extort money that is not owing from a defendant remediless at law the complete meritorious defense to the claim on which this judgment is based, the fact that the defendant in the judgment was prevented from availing itself of its defense to the cause of action by an unavoidable accident, and the absence of any negligence of the defendant or of its agents. These facts appeal with compelling force to the conscience of a chancellor. They have been presented to a court to which the Constitution and the acts of Congress have granted the power, and upon which they have imposed the duty, to grant the relief to which the complainants are equitably entitled; and the decree which dismissed their bill must be reversed." Without pursuing the subject further, we hold that the present suit is not one to stay proceedings in a state court in the sense of § 265. 3. Does the Employers' Liability Act affect the validity of the messenger's agreement? The act provides that "every common carrier by railroad" shall be liable in damages for the injury or death of any of its employees occurring while it is engaged and he is employed in interstate commerce, and resulting in whole or in part from the negligence of any of its officers, agents, or employees, or from any defect or insufficiency, due to its negligence, "in its cars, engines, appliances, machinery, track, roadbed,' etc.; and in § 5 it declares that any contract whereby a common carrier exempts itself from "any liability created by this act" shall, to that extent, be void. In his declaration in the state court Taylor did not claim that he was in the employ of the railroad company, and his judgment was not obtained on that theory. Here it is shown with certainty that he was not in that company's employ. True, he urges that the contract between the two [187] companies shows a coproprietorship or sort of partnership between them which made him an employee of both; but the contract discloses no basis for the claim, or for distinguishing his case from that of the Pullman porter recently before us. Robinson v. Baltimore & O. R. Co. 237 U. S. 84, 59 L. ed. 849, 35 Sup. Ct. Rep. 491, 8 N. C. C. A. 1. Here the businesses of the companies concerned were quite as distinct in point of control and otherwise as they were there. That here the railroad company provided the express car is not material, for it is measurably equalized by other differences. In both cases the railroad company provided the motive power and the train operatives. The messenger here, like the porter there, was on the train as an employee, not of the railroad company, but of another by whom he was employed, directed, and paid, and at whose will he was to continue in service or be discharged. As respects the express company, it appears not merely that Taylor was in its employ, but also that the injuries were received while it was engaged and he was employed in interstate commerce; and so the question is presented whether the act embraces a common carrier by express, which neither owns nor operates a railroad, bu uses and pays for railroad transportation in the manner before shown. The district court answered the question in the negative and the circuit court of appeals in the affirmative. A negative answer also has been given in a like situation by the court of errors and appeals of New Jersey (Higgins v. Erie R. Co. 89 N. J. L. 629, 99 Atl. 98); and a recent decision by the supreme court of Minnesota makes persuasively for that view (State ex rel. Great Northern Exp. Co. v. District Ct. 142 Minn. 410, 172 N. W. 310). 8642, 8 Fed. Stat. Anno. 2d ed. p. 1420); and by the fact that similar words in the original Interstate Commerce Act had been construed as including carriers operating railroads, but not express companies doing business as here shown (1 Inters. Com. Rep. 677, 1 I. C. C. Rep. 349; United States v. Morsman, 3 Inters. Com. Rep. 112, 42 Fed. 448; Southern Indiana Exp. Co. v. United States Exp. Co. 88 Fed. 659, 662, s. c. 35 C. C. A. 172, 92 Fed. 1022. And see American Exp. Co. v. United States, 212 U. S. 522, 531, 534, 53 L. ed. 635, 639, 640, 29 Sup. Ct. Rep. 315). As Taylor was not an employee of the railroad company, and the express company was not within the Employers' Liability Act, it follows that the act has no bearing on the liability of either company, or on the validity of the messenger's agreement. 4. There being no statute regulating the subject, it is settled by the decisions of this court, and is recognized in other jurisdictions, that the messenger's agreement was a valid and binding contract whereby Taylor agreed to assume all risk of injury incident to his employment, from whatever cause arising, assented to the contractual arrangement between the two companies in respect of such injuries, and In our opinion the words "common became obligated to the express company carrier by railroad," as used in the act, to refrain from asserting any liability mean one who operates a railroad as a against it or the railroad company on acmeans of carrying for the public,-that is count of any such injuries. Express to say, a railroad company acting as a Cases, 117 U. S. 1, 29 L. ed. 791, 6 Sup. common carrier. This view not only is in Ct. Rep. 542, 628; Baltimore & O. S. W. accord with the ordinary acceptation of R. Co. v. Voigt, 176 U. S. 498, 44 L. ed. the words, [188] but is enforced by 560, 20 Sup. Ct. Rep. 385, and cases cited; the mention of cars, engines, track, Santa Fe, [189] P. & P. R. Co. v. roadbed, and other property pertain- Grant Bros. Constr. Co. 228 U. S. 177, ing to a going railroad (see South- 57 L. ed. 787, 33 Sup. Ct. Rep. 474; ern P. Co. v. Jensen, 244 U. S. 205, Robinson v. Baltimore & O. R. Co. 212, 213, 61 L. ed. 1086, 1096, 1097, supra; Perry v. Philadelphia, B. & L.R.A.1918C, 451, 37 Sup. Ct. Rep. 524, W. R. Co. 1 Boyce (Del.) 399, 77 Ann. Cas. 1917E, 900, 14 N. C. C. A. 597); Atl. 725; McKay v. Louisville & N. by the obvious reference in the latter part | R. Co. 133 Tenn. 590, 182 S. W. 874; of §§ 3 and 4 to statutes requiring engines Fowler v. Pennsylvania R. Co. 143 C. C. and cars to be equipped with automatic A. 493, 229 Fed. 373. In violation of that couplers, standard drawbars, and other agreement he wrongfully sought and obappliances intended to promote the safety tained a judgment against the railroad of railroad employees (see San Antonio company, which, as between the two com& A. P. R. Co. v. Wagner, 241 U. S. 476, panies, the express company is bound to 484, 60 L. ed. 1110, 1117, 36 Sup. Ct. Rep. pay. The judgment was obtained in an 626); by the use of similar words in close-action to which that company was not a ly related acts which apply only to carriers operating railroads (March 2, 1893, 27 Stat. at L. 531, chap. 196, Comp. Stat. § 8605, 8 Fed. Stat. Anno. 2d ed. p. 1155; May 30, 1908, 35 Stat. at L. 476, chap. 225, Comp. Stat. § 8624, 8 Fed. Stat. Anno. 2d ed. p. 1199; May 6, 1910, 36 Stat. at L. 350, chap. 208, Comp. Stat. § party and wherein it could not be heard. He is financially irresponsible, and if the judgment is collected, the express company, which has not been in any wise negligent or at fault, will be remediless. In these circumstances, that company is entitled in equity and good conscience, as is shown by the cases before cited, to a de cree holding him to his agreement, and depriving him of his present inequitable advantage, and to that end enjoining him from collecting the judgment. It follows that the decree of the District Court was right and that the Circuit Court of Appeals erred in reversing it. Decree reversed. JIN FUEY MOY, Plff. in Err., V. UNITED STATES OF AMERICA. (See S. C. Reporter's ed. 189-195.) Error to district court extending review beyond Federal question. 1. Jurisdiction of a direct writ of error from the Federal Supreme Court to a district court once having attached, because of the presence of a constitutional question, continues for the purpose of disposing of other questions raised in the record, although the constitutional question has since been decided in another case to be without merit. [For other cases, see Appeal and Error, 4297- by the commissioner of internal revenue, [For other cases, see Food and Drugs, in Digest sale of narcotics unlawful prescription. 3. The exceptions from the prohibition of the Harrison Anti-narcotic Act of December 17, 1914, § 2, against sales of opium derivatives to persons not having a written order in official form, which that section makes in favor of registered physicians dispensing or distributing any such drug to patients in the course of their professional practice only, and of the sale, dispensing, or distribution of the drugs by a dealer upon prescriptions issued by registered physicians, must be deemed to confine the immunity of a registered physician in dispensing the drugs mentioned strictly within the appropriate bounds of a physician's professional practice, and not to protect a sale to a dealer, or a distribution intended to cater to the appetite or satisfy the craving of one addicted to the use of the drug. [For other cases, see Food and Drugs, in Digest Sup. Ct. 1908.] Witnesses competency cused. wife of ac 4. The rule that excludes the wife of an accused from testifying in his behalf in the Federal courts applies although her evidence is offered simply to contradict the testimony of particular witnesses for the government, who testified to certain mat[For other cases, see Witnesses, IV. d, in Digest ters as having happened in her presence. Sup. Ct. 1908.] 2. A physician may be found guilty, under the Harrison Anti-narcotic Act of December 17, 1914, of participating as a principal in the prohibited sale of an opium derivative belonging to another person, where he unlawfully issued a prescription therefor to the would-be purchaser, in view of the provision of § 2 of that act, making it unlawful for any person to sell, barter, exchange, or give away any such drug except in pursuance of a written order, on a form to be issued in blank for that purpose Note. On direct review in Federal And it will be observed that this Supreme Court of judgments of district rule is conceded in JIN FUEY MOY v. or circuit courts-see notes to Gwin v. | UNITED STATES, the actual decision beUnited States, 46 L. ed. U. S. 741; B. ing that the rule applies although her Altman & Co. v. United States, 56 L. ed. evidence is offered simply to contradict U. S. 894, and Berkman v. United the testimony of particular witnesses States, 63 L. ed. U. S. 877. for the government who testified to certain matters as having happened in her The wisdom of a strict ad [No. 44.] As to constitutionality, construction, and effect of statute prohibiting or reg-presence. ulating sale of poisons-see note to herence to this rule has been questioned. Katzman v. Com. 30 L.R.A. (N.S.) 519. See Fitter v. United States and Adams As to furnishing or prescribing by v. United States (dissenting opinion) physician of habit-forming drugs-see infra. note to Com. v. Noble, L.R.A.1918E, 669. Competency of wife of accused to testi- In applying the rule to the particular case, the court in JIN FUEY MOY v. UNITED STATES stated that it is based upon her interest in the event. This is at variance with United States v. Jones, 32 Fed. 569, which stated that the common-law rule that a wife is not a competent witness for or against her husband is not on account of interest, but on the ground of public policy. Section 859 of U. S. Rev. Stat., mod254 U. S. Argued October 11, 1920. Decided December, Bouvier's Law Dict.; Iowa v. McFar 6, 1920. IN ERROR to the District Court of the United States for the Western District of Pennsylvania to review a conviction of violating the Harrison Anti narcotic Act. Affirmed. See same case below, 253 Fed. 213. Mr. H. Ralph Burton argued the cause, and, with Mr. Blaine Mallan, filed a brief for plaintiff in error. Mr. H. Ralph Burton filed a separate brief for plaintiff in error: The averment that the sales were made by issuing prescriptions clearly shows that no offense under the statute was actually committed, and the indictment should have been quashed. 2 Bl. Com. 446; Benjamin, Sales; ifying the common-law rule which made the wife incompetent as a witness for or against her husband, does not affect the incompetency of the husband and wife as witnesses for or against each other in criminal prosecutions, such statute being confined to civil actions. Hendrix v. United States, supra; JIN FUEY MOY V. UNITED STATES. land, 110 U. S. 471, 28 L. ed. 198, 4 The Harrison Act is a penal statute, and as such should receive a strict construction. 375, 47 L. ed. 508, 23 Sup. Ct. Rep. 334, Francis v. United States, 188 U. S. 13 Am. Crim. Rep. 585; United States v. Harris, 177 U. S. 305, 44 L. ed. 780, 20 Sup. Ct. Rep. 609. Nothing can be added to a criminal statute by intendment. Francis V. United States, supra; occasion heretofore to say, the territorial statute does distinctly recognize other rules of practice and proceedings peculiar to the district courts for the district in Federal cases, and which rules are well known to the profession, and are, so far as applicable, the rules of the common law. It may be doubtful whether, in the absence of express In United States v. Crow Dog, 3 Dak. authority by Congress, it would be com106, 14 N. W. 437, a prosecution in the petent for the territorial legislature to territorial supreme court for murder, it prescribe rules of evidence and of the was held that while the statutes of the competency of witnesses in cases in United States made a party defendant which the United States is prosecuting. in a criminal action a competent wit- Serious doubts could be suggested ness in his own behalf, at his own voli- whether this is among the implied powtion, his wife was not a competent wit-ers conferred in authorizing legislation ness for him, since the statute made no provision for the wife testifying, and, in the absence of a statute expressly allowing a wife to testify for her husband in a criminal action, she is not a competent witness for him. upon all rightful subjects, especially as Congress itself has undertaken to act, and has made the party prosecuted competent, but has not changed the rule as to the wife." In Adams v. United States, 170 C. C. Nor is the rule of the common law A. 282, 259 Fed. 214, it was held that that a wife is incompetent to testify there was no error in refusing to perfor her husband abrogated by a pro- mit the husband to testify in behalf of vision of the territorial Code of Crim- his wife, who was being prosecuted for inal Procedure which makes a wife a carrying on the business of retail liqcompetent witness for her husband, uor dealer without having paid a spesince such Code has no application to cial tax required by law. The court courts while exercising jurisdiction un- stated that while the wife waived the der the laws of Congress in cases in objection, if it was a privilege that which the United States is a party, and could be waived, yet the United States sitting for the whole district. Ibid. did not. In a dissenting opinion, Circuit The court stated that "it has sole ref- Justice Stone said: "The wise public erence by express terms to criminal ac-policy whch forbids a husband or wife tions and proceedings in which the ter- to testify as to confidential communiritory is a party. It would be wholly cations is intended, by preserving such impracticable to apply many of its confidences from disclosure, to preserve provisions to the courts while sitting unshattered the sacredness and integrifor the entire district in the United ty of the marriage relation which is so States cases. Besides, as we have had vital to the stability of our civilization. United States v. Harris, 177 U. S. 305,, other and repugnant, which makes an 44 L. ed. 780, 20 Sup. Ct. Rep. 609; El- indictment defective, and it should be liott v. East Pennsylvania R. Co. 99 U. quashed. This is especially true where S. 573, 25 L. ed. 292; Tiffany v. Nation- the repugnant allegations show a case al Bank, 18 Wall. 409, 21 L. ed. 862; not criminal. United States v. Gooding, 12 Wheat. 460, 6 L. ed. 693; United States v. Reynolds, 244 Fed. 991. State v. Mahan, 2 Ala. 340; State v. Lockwood, 119 Mo. 463, 24 S. W. 1015; People v. Myers, 20 Cal. 76; State v. Haven, 59 Vt. 399, 9 Atl. 841; United an-States v. Dow, Taney, 34, Fed. Cas. No. The allegations of prescribing and selling are inconsistent with one no In the early case of United States v. Wade, 2 Cranch, C. C. 680, Fed. Cas. No. 16,629, it was held that although there were separate trials, the wife of one jointly indicted with another for assault and battery could not be a witness in behalf of the other defendant. The thought is that married people states when the Judiciary Act of Sepshould be made safe in their communi- tember 24, 1789, was passed. cations to each other by the assurance In Rosen v. United States, 245 U. S. that neither will be permitted to violate 467, 62 L. ed. 406, 38 Sup. Ct. Rep. 148, such confidences. It is essentially and the court concluded that 'the dead solely for the benefit of the parties in- hand of the common-law rule of 1789 volved, and serves no further useful should no longer be applied' to exclude purpose. Where both husband and the testimony of convicted felons. It wife voluntarily waive this confidence may perhaps be said with equal reason and desire the disclosure, not only does that 'the same dead hand' should the sole basis of the rule, and there- longer disqualify husband and wife exfore the rule itself, vanish, but there cept as respects confidential communicomes into force the cardinal consid- cations. If the trial judge had permiteration of presenting to the jury all ted Mrs. Fitter to testify, this court possible information bearing upon the would not readily have been inclined to issues in the case. It may be entirely hold that error had been committed. proper to hold that the preservation of But this judgment of conviction certhe close marriage relations by strict tainly cannot be set aside because the protection of its confidences is more court still adhered to the rule of the important than the procurement of con- common law." viction by evidence obtained through the rupture of confidence, so basic to our civilization. I cannot conclude that such a purpose is consummated by closing mouths which both husband and wife wished open to prove lack of criminally by either. Is the marriage relation or is society benefited by preventing a husband and wife from thus coming to the aid of the other in a time of dire need, and to promote justice?" In Fitter v. United States, 169 C. C. A. 507, 258 Fed. 567, where several jointly indicted for conspiracy to defraud the United States were tried together, in holding that there was no error in excluding the testimony of the wife of one of the defendants, who was called for the defense, the court said: "The common-law rule made husband and wife incompetent as witnesses for or against each other in either civil or criminal proceedings. In some of the states the disqualification arising from the relation of husband and wife has been removed by statute, but no statute has been passed on this subject by Congress. In United States v. Reid, 12 How. 361, 13 L. ed. 1023, the court held that the competency of witnesses in criminal trials in the United States courts must be determined by the rules of evidence which were in force in the respective The But in United States v. Addatte, 6 Blatchf. 76, Fed. Cas. No. 14,422, where there was a separate trial for two defendants jointly indicted for counterfeiting, it was held that it was error to exclude the wife of one defendant as a witness of the other defendant. court stated the rule to be that "when trials are separate, the wife may testify in favor of or against anyone other than her husband, except in cases where the acquittal of one defendant works the acquittal of the rest, as in cases of conspiracy and the like," and said that in this case it was not intended that the acquittal of the prisoner should work the acquittal of the other defendant, and so the wife of the latter was a competent witness. And in Talbott v. United States, 125 C. C. A. 360, 208 Fed. 144, it was held that, under the common law, the wife of one of several defendants on trial at the same time cannot be called as a witness for or against any of them. |