Note on Professional Communications with Attorney. (where an attorney, as a witness, states that professional communications are involved, he will be excused from answering). North Carolina: Hughes v. Boone, 102 N. C., 137; s. c. 9 Southeast. Rep., 286 (it is for the court to determine whether communications to an attorney are privileged, and for this purpose it may inspect documents drawn by him). Texas: Harris v. Daugherty, Tex., 1889, 11 Southeast. Rep., 921 (where the evidence is conflicting as to whether an attorney was employed, the admissibility of communications to him is to be determined by the court). Waiver: Georgia: Lewis v. State, 1893, 16 Southeast. Rep., 986 (a client cannot call his attorney to testify as to a confidential communication. made to him). Fire Assn. v. Fleming, 1887, 3 Southeast. Rep., 420 (the fact that evidence as to confidential communications between attorney and client has been wrongfully admitted on a former trial, does not justify a repetition of the error on a second trial). Michigan: People v. Hillhouse, 1890, 45 Northwest. Rep., 484 (though defendant, in a prosecution for larceny, testifies that his attorney advised him that he could take the property, if he could do so peaceably, the attorney cannot be called to testify as to what advice he gave); People v. Gallagher, 75 Mich., 512; s. c. 42 Northwest. Rep., 1063 (statements to his attorney by one who has admitted his connection with a crime and testifies against his accomplices, are not privileged communications, but the testimony of the attorney may be admitted to impeach such witness). Mississippi: Jones v. State, 1888, 3 Southern Rep., 379 (an accomplice, who has turned State's evidence, waives all privileges as to the facts pertinent to the issue, and may be compelled to testify as to consultations with his attorney). New York: Matter of Coleman, 111 N. Y., 220; s. c. 19 Northeast. Rep., 71 (a testator by requesting an attorney to become a subscribing witness to his will waives the privilege so as to permit the attorney after the testator's death to testify in proceedings to probate the will as to his instructions for drawing the will); s. p. Matter of Lamb, 21 Civ. Pro. R., 324; s. c. 18 N. Y. Supp., 173; Matter of Note on Professional Communications with Attorney. Gagan, 21 id., 350; Loder v. Whelpley, 111 N. Y., 239; s. c. 18 Northeast. Rep., 874 (in a probate proceeding the privilege as to communications by testator to his attorney cannot be waived by the executor or any one else); Mutual Life Ins. Co. v. Corey, 54 Hun, 493; s. c. 7 N. Y. Supp., 939 (a notary is competent to testify as to the acknowledgment of a deed, though he was attorney for the grantor); Masterton v. Boyce, 6 id., 65 (a client may waive the privilege by himself, examining his attorney as a witness; s. p. Smith v. Crego, 7 id., 86). South Carolina : Brazel v. Fair, 2 Southeast. Rep., 293 (an attorney who witnessed a declaration of trust drawn by himself is a competent witness to prove the consideration); State v. James, 1891, 12 id., 657 (though a conspirator, who turned State's evidence, denied on cross-examination, that he had ever told his attorney that a confession had been procured from him by threats, his attorney cannot be compelled to disclose what was said in order to impeach him). United States: Hunt v. Blackburn, 1888, 8 Supm. Ct., 125 (where a defendant, who alleges that she was deceived by her attorney, testifies in relation thereto, she cannot object to the testimony of the attorney upon the same matter); Liggett v. Glenn, 2 U. S. Cir. Ct. App., 286; s. c. 51 Fed. Rep., 381 (a contract by which shareholders employed an attorney, and which had been filed by the attorney in the Probate Court as a voucher for a claim for fees against one of his deceased clients, cannot be offered in evidence by third persons in an action against the clients to show that they were shareholders; since no matter how the plaintiffs obtained possession of the document, it could not be deprived of its character as a privileged communication without some unequivocal act on the part of the clients themselves). Wisconsin: Matter of Pitt's Estate, 1893, 55 Northwest. Rep., 149 (in an action to contest a will, testator's attorney who witnessed the will may testify as to any fact in regard to it, or its execution, which he learned by virtue of his professional relation). Connecticut Life Ins. Co. v. Union Trust Co., 112 U. S., 250. CONNECTICUT LIFE INS. CO. v. UNION TRUST CO. United States Supreme Court, November, 1884. [Reported in 112 U. S., 250.] The act of Congress (U. S. R. S., § 721)-which makes the laws of the several states rules of decision on trials at common law* in the federal courts, require those courts to enforce in such actions the exclusion by a state statute (for example, N. Y. Code Civ. Pro., § 834) excluding information acquired by a physician or surgeon in professionally attending a patient, and which was necessary to enable him to act in that capacity. Hence, under such a statute, the physician of the deceased cannot in an action on a life policy testify to the cause of death as learned by him in that way. The widow of the deceased cannot, in an action on a life policy, be asked as a witness "Did you understand from your husband the nature of the disease?" for the question calls for what may be nothing more than the operation of her mind. Action on a life policy. The facts appear in the opinion. After judgment for plaintiff, defendant brought error. HARLAN, J. [after stating facts]: 1. In support of the defence, physicians, who had attended the insured professionally, were examined as witnesses, and the first assignment of error relates to the refusal of the court to permit them to answer questions, the object of which was to elicit information which would not have been allowed to go to the jury under section 834 of the Code of Civil Procedure of New York, had the action been tried in one of the courts of the state. That section provides that "a person, duly authorized to practice physic or surgery, shall not be allowed to disclose any information which he acquired in attending a patient, in a professional capacity, and which was necessary to enable him to act in that capacity." It is not, and could not well be, seriously questioned, that the evidence excluded by the Circuit Court was inadmissible under the rule prescribed by that section. Grattan Metropolitan *As to equity and admiralty, see U. S. R. S. § 914. Connecticut Life Ins. Co. v. Union Trust Co., 112 U. S., 250. Life Ins. Co., 92 N. Y., 274; Same v. Same, 80 N. Y., 281; Pierson v. People, 79 N. Y., 424; Edington v. Ætna Life Ins. Co., 77 N. Y., 564; Edington v. Mutual Life Ins. Co., 67 N. Y., 185. But it is suggested that truth and justice require the admission of evidence which this statutory rule, rigorously enforced, would exclude, and that it can be admitted without disturbing the relations of confidence properly existing between physician and patient; that it would not afflict the living nor reflect upon the dead, if the physician should testify that his patient had died from a fever, or an affection of the liver; and that the rule, as now understood and applied in the courts of New York, shuts out, in actions upon life policies, the most satisfactory evidence of the existence of disease, and of the cause of death. These considerations, not without weight, so far as the policy of such legislation is concerned, are proper to be addressed to the legislature of that state. But they cannot control the interpretation. of the statute, where its words are so plain and unambiguous as to exclude the consideration of extrinsic circumstances. Since it is for that state to determine the rules of evidence to be observed in the courts of her own creation, the only question is whether the Circuit Court of the United States is required, by the statutes governing its proceedings, to enforce the foregoing provision of the New York Code. This question must be answered in the affirmative. By § 721 of the Revised Statutes, which is a reproduction of § 34 of the Judiciary Act of 1789, it is declared that "the laws of the several states, except where the constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply." This has been uniformly construed as requiring the courts of the union, in the trial of all civil cases at common law, not within the exceptions named, to observe, as rules of decision, the rules of evidence prescribed by the laws of the states in which such courts are held. Potter v. National Bank, 102 U. S., 165; Vance v. Campbell, 1 Black, 427; Wright v. Bales, 2 Black, 535; McNeil v. Holbrook, 12 Pet., 84; Sims v. Hundley, 6 How., 1. Connecticut Life Ins. Co. v. Union Trust Co., 112 U. S., 250. There is no ground for the suggestion that $$ 721, 858 and 914 of the Revised Statutes may be construed as relating to the competency of witnesses rather than to the nature and principles of evidence. While in some of the cases the question was whether a witness, competent under the laws of a state, was not, for that reason, under § 34 of the act of 1789, a competent witness in the courts of the United States sitting within the same state, in others the question had reference to the intrinsic nature of the evidence introduced. In McNeil v. Holbrook the court held the courts of the United States, sitting in Georgia, to be bound by a statute of that state declaring, as a rule of evidence, that in all cases brought by an indorser or assignor on any bill, bond, or note, the assignment or indorsement, without regard to its form, should be sufficient evidence of the transfer thereof; the bond, bill, or note to be admitted as evidence without the necessity of proving the handwriting of the assignor or indorser. And in Sims 2. Hundley a notary's certificate, held to be inadmissible as evidence under the principles of general law, was admitted upon the ground that, having been made competent by a statute of Mississippi, it was competent evidence in the Circuit Court of the United States sitting in that state. We perceive nothing, in the other sections of the Revised Statutes, to which attention is called, that modifies $721, except that, by 858, the courts of the United States, whatever may be the local law, must be guided by the rule that "no witness shall be excluded in any action on account of color, or in any civil action because he is a party to or interested in the issue tried;" and by the further rule, 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." "In all other respects," the section proceeds, "the laws of the state in which the court is held shall be the rules of decision as to the competency of witnesses in the courts of the United States in trials at common law, and in equity and admiralty." As to $914, it is sufficient to say that it does not modify § 721 in so |