Vol. VII, p. 1116, sec. 858.

Transactions with decedents. Where an action is brought against an executor to establish a trust in property left to his testatrix the party bringing the action will not be allowed to testify to transactions with, or statements of, the testatrix, but she may testify to statements made by the person who

Vol. VII, p. 1124, sec. 848.

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"The question whether the per diem and travel fees of witnesses who attend voluntarily in a federal court, without subpoena, are taxable as part of the costs under section 848 of the Revised Statutes and earlier statutes, has been a question as to which there has been a direct conflict of opinion. Prior to 1886 the weight of opinion appears to have been about evenly divided. In that year, however, it was held in United States v. Sanborn, (C. C. Mass. 1886) 28 Fed. 299, in a carefully prepared opinion by Gray, Circuit Justice, in which Colt, Circuit Judge, concurred, and after a full and elaborate review of the authorities, that under section 848 of the Revised Statutes the mileage of witnesses who had attended a trial without subpoena should be taxed as part of the costs. Since the publication of this opinion it appears that the case of Lillienthal v. Southern California Ry. Co., (S. D. Cal. 1894) 61 Fed. 622, is the only one in which it has been held that the fees and mileage of witnesses who attend voluntarily without subpœna are not taxable as costs, and it furthermore appears that in reaching its conclusion Ross, District Judge, who delivered the opinion, felt constrained, without regard to his individual views, to adhere to the construction that had been previously put upon the statute by Sawyer, Circuit Judge, in two earlier reported cases in the same circuit. On the other hand it appears that since the publication of the opinion in the Sanborn case, it has been uniformly held -except in the Lillienthal case-that the per diems and travel fees of witnesses who attend in good faith should not be disallowed, if otherwise taxable, merely because the witnesses were not subpoenaed, but attend voluntarily at the request of one of the par

1909 Supp., p. 708.

left the property to the testatrix, as the action is not against his executor. Updike v. Mace, (S. D. N. Y. 1912) 194 Fed. 1001.

State laws as rule of decision. This section has no application to criminal cases. Maxey v. United States, (C. C. A. 8th Cir. 1913) 207 Fed. 327.

ties." American Bank Protection Co. v. City Nat. Bank of Johnson City, (E. D. Tenn. 1913) 203 Fed. 715.

Nominal defendants. - Counsel fees may be allowed to nominal defendants who are compelled to attend by subpoena when their own interests do not make it necessary. Marks v. Merrill Paper Co., (C. C. A. 7th Cir. 1913) 203 Fed. 16.

Mileage not exceeding one hundred miles may be taxed as mileage for witnesses from without the district. United States v. Green, (D. C. N. M. 1912) 196 Fed. 255, wherein the court said: "The question for decision arises upon the taxation of costs, and is whether mileage for more than 100 miles is allowable for witnesses residing without the district and more than 100 miles from the

place where court is held. This question must be answered in the negative. While there is some conflict of authority, due largely to the holdings in the First Circuit, which latter follow certain early expressions from Judge Story, the weight of authority is to the effect that mileage is not taxable under such circumstances for a distance greater than 100 miles from the place of trial. The case of Hanchett v. Humphrey (C. C.) 93 Fed. 895, in my judgment correctly declares the law, where it says: "The true rule upon this subject, as gleaned from all the authorities, is substantially to the effect that the acts of Congress were intended to, and do, allow mileage to witnesses to the full extent of the distance that could be legally reached by subpoena, to wit, at any place within the district or at any point without the district to the extent of 100 miles from the place where the court is held.' The only modification of this general rule is in such exceptional cases as are hinted at by Judge Shiras in Smith v. Chicago Company (C. C.) 38 Fed. 326, and by Judge Brown in The Vernon (D. C.) 36 Fed. 113, 117."

Bankruptcy proceedings are governed by this act. In re Thompson, (D. C. N. J. 1913) 205 Fed. 556.

Section 858 as here amended is cited in In re Hoffman, (D. C. N. J. 1912) 199 Fed. 448.

Act. - In

Testimony under Anti-Trust Heike v. United States, (1913) 227 U. S. 131, 33 S. Ct. 226, 57 U. S. (L. ed.) 450, the petitioner contended that, as soon as he had testified upon a matter under the Sherman Anti-Trust Act, he had an amnesty by the statute from liability for any and every offense that was connected with that matter in any degree, or at least every offense towards the discovery of which his testimony led up, even if it had no actual effect in bringing about the discovery. This contention was overruled, the court saying: "Of course there is a clear distinction between an amnesty and the constitutional protection of a party from being compelled in a criminal case to be a witness against himself. Amendment V. But the obvious purpose of the statute is to make evidence available and compulsory that otherwise could not be got. We see no reason for supposing that the act offered a gratuity to crime. It should be construed, so far as its words fairly allow the construction, as coterminous with what otherwise would have been the privilege of the person concerned. We believe its policy to be the same as that of the earlier Act of February 11, 1893, c. 83, 27 Stat. 443, 3 Fed. Stat. Annot. 855, which read 'No person shall be executed from attending and testifying,' etc. 'But no person shall be

prosecuted,' etc., as now, thus showing the correlation between constitutional right and immunity by the form. That statute was passed because an earlier one, in the language of a late case, 'was not coextensive with the constitutional privilege.' American Lithographic Co. v. Werckmeister, (1911) 211 U. S. 603, 611. To illustrate, we

think it plain that merely testifying to his own name, although the fact is relevant to the present indictment as well as to the previous investigation, was not enough to give the petitioner the benefit of the act. There is no need to consider exactly how far the parallelism should be carried."

Corporations. The privilege against selfincrimination is personal to a witness and cannot be availed of by a corporation so as to withhold its books, correspondence, and accounts or to close the mouths of its servants and agents as witnesses. Obviously, if corporations could do this, they would be enabled entirely to defeat investigations under the interstate commerce act and the Sherman anti-trust law. Simon v. American Tobacco Co., (S. D. N. Y. 1911) 192 Fed. 662.

A person verifying a pleading is not entitled to immunity under this section. Simon v. American Tobacco Co., (S. D. N. Y. 1911) 192 Fed. 662.

1909 Supp., p. 828, sec. 37.

Constitutionality. Congress, in enacting this statute, acted within all the limitations of the Constitution regulating the exercise of the taxing power. The tax is an excise and not a direct tax. It also possesses the uniformity required by the constitutional provision. It is assessed equally on all citizens throughout the United States who own or charter foreign-built yachts. It is geographically uniform and that which the Constitution prescribes is geographical and not intrinsic uniformity. United States v. Billings, (S. D. N. Y. 1911) 190 Fed. 359.

Immunity under treaty.—The owner of a foreign-built yacht cannot acquire, under a treaty, any immunity which will exempt him from the operation of the statute. United States v. Billings, (S. D. N. Y. 1911) 190 Fed. 359.

that as the tax is one upon use, it ought to have some fair relation to the actual enjoyment of the privilege tax, and that it must have been the intention of Congress. in enacting the legislation just prior to the close of the year, to lay an annual tax upon future use and not to penalize past use, and that if a tax for past use be levied it should be apportioned according to the period of actual use prior to September 1, 1909. There is much force in these contentions but I think that they are not well founded. The language of the statute, speaking on August 6, 1909, is that the use of yachts 'now or hereafter owned' shall be taxed on September 1st. The section says that the use of yachts owned at the time of its passage or thereafter acquired shall be taxed, and in my opinion Congress intended that such tax should be levied on the first day of every September following the enactment of the statute. While the tax is collectible annually according to a given situa tion on September 1st, there is nothing in the statute to indicate that a full year's use

is a prerequisite to liability, nor is there any provision for apportionment. I, therefore, hold that the tax was properly leviable on September 1, 1909. If this construction gives the statute a retrospective operation— and I fail to see that it does-it is nevertheless adopted, because it is, in my opinion, required by the unequivocal language used." Vessels not in use are subject to the tax. In United States v. Billings, (S. D. N. Y. 1911) 190 Fed. 359, the court said: "The statute seems to distinguish between use and ownership. It imposes a novel tax -a tax on use. There is nothing by way of precedent to aid in the determination whether Congress intended that the statute should apply only in cases where owners use their yachts for yachting purposes during the year prior to the assessment of the tax, or whether it intended that the tax should cover the privilege of using. Considering the object of the statute and the reason of the matter, I think the latter interpretation the correct one, although I fully appreciate the very narrow distinction between such a tax on the privilege of using and a tax on ownership. Still, I can see no reason why Congress should distinguish between the yacht owner who chooses to put his yacht in commission and employ it as a pleasure craft, and the owner who prefers in a particular year to keep his yacht laid up. The latter has in one sense the use of his

yacht, although he does not choose to sail it. I have already held that use by the owner for any particular length of time is not necessary to the application of the statute, and I now feel constrained to further hold that no particular kind of use is required—that a yacht owner who keeps his yacht laid up is nevertheless liable to the tax."

The six months limitation is only applicable to chartered yachts. United States v. Billings, (S. D. N. Y. 1911) 190 Fed. 359.

"Foreign built yacht."-A "foreign-built” vessel is one originally constructed outside the United States, no matter how extensive the changes, alterations, or repairs bestowed upon her here may have been. United States v. Blair, (S. D. N. Y. 1911) 190 Fed. 372. The place of taxation is, by the plain direction of the statute, the residence of the person taxed. United States v. Blair, (S. D. N. Y. 1911) 190 Fed. 372.

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Notice. When the act declares that a particular collector shall levy and collect the tax, it means that he must do something by way of apprising the person who is called upon to pay of the claim made. United States v. Blair, (S. D. N. Y. 1911) 190 Fed. 372.

An action in the nature of debt lies to collect the tax. United States v. Billings, (S. D. N. Y. 1911) 190 Fed. 359.