courts of King's Bench and Common Pleas through the medium of Courts of Equity." It necessarily followed, therefore, that to go behind this oath during the same investigation, was, in effect, to try the contemnor for perjury, without the jury to which he was entitled. Of course if foresworn, he could subsequently be prosecuted for the perjury, but "when indicted he would have bail, a trial in due form of law; if convicted, the right of appeal, and to apply for a pardon; but by convicting him under the form of the contempt proceeding, he is deprived of all these constitutional safeguards. SHELBY, Circ. J., dissenting in re Purvine (C. C. A., Tex. 1899) 96 Fed. 192, 199. See also, 2 Hawkins P. C. (6th ed) c. 22; Rex v. Sims (170) 12 Mod. 511; U. S. v. Dodge (1814) 2 Gall. (U. S.) 313; State v. Earl (1872) 41 Ind. 464; People v. Few (1807) 2 Johns. (N. Y.) 290; in re Walker (1880) 82 N. C. 95.

In examining civil contempts the situation is found to be different. It is true, the process is the same, but here the offense is in reality not criminal. A suitor may be deprived of his rights, which have been already determined by the court and its decree given. To allow the contemnor to purge himself by his oath, might it is true, subject him to a prosecution for perjury subsequently, if fores worn, at the instance of the King or the state, as in the criminal case, but this would not give the suitor those rights which are the object of his petition. It followed, therefore, that in equity, or rather in the civil contempt proceeding, the oath did not purge where it was evident to the court that the contemnor was able to obey. 4 Black. Comm. 288; Underwood's Case (1840) 2 Humph. (Tenn.) 46; Magennis v. Parkhurst (1844) 4 N. J. Eq. 433; State v. Matthews (1859) 37 N. H. 450; in re Yates (1809) 4 Johns. (N. Y) 317; Smith v. Smith (1862) 14 Abb. Pr. 130; Crook v. People (1855) 16 Ill. 534; in re Pitman (1852) 1 Curtis (U. S.) 186; Rogers v. Patterson (1834) 4 Paige Ch. 450.

In the principal case the contempt was clearly civil and the decision therefore correct. It is true that some of the Federal courts have expressed doubt as to the use of the contempt process as a civil remedy in those tribunals, owing to Rev. Stat. § 725, but, as suggested in 3 COLUMBIA LAW REVIEW, 45, the better view seems to be that of Hendryx v. Fitzpatrick (C. C., Mass. 1884) 19 Fed. 810 which holds that it can be so used where it is to secure private rights. As suggested in in re Salkey, supra: "the district court, as a court in bankruptcy, is clothed with all the powers of a court of equity "; and again, when discussing whether the oath of the bankrupt should purge in these cases, DRUMMOND, J., in the same case, on appeal, says: "A subsequent criminal prosecution for perjury does not pay the claims of creditors. See also the concurring opinion of SANBORN, J., in Boyd v. Glucklich (C. C. A., Iowa 1902)116 Fed. 131, to the same effect. Another objection has been raised to this proceeding in these bankruptcy cases, namely, that after oath, an imprisonment of the bankrupt amounts to an imprisonment for debt. See dissent in re Purvine (C. C. A., Tex. 1899) 96 Fed. 192. But this is answered by the fact that if the bankrupt can show his oath to be true, he is, of course, purged, Rapalje, Contempt § 115. In Mueller v. Nugent (1902) 184 U. S. 1, it is said, "The order to pay over the money was not an order for the payment of a debt, but an order for the surrender of assets of the bankrupt placed in custodia

legis by the adjudication." See also in re Schlesinger, supra; in re Rosser (C. C. A., Mo. 1900) 101 Fed. 562.

RESTRAINING PROSECUTION OF ACTION BROUGHT IN ANOTHER State. -Will the courts of one State, having jurisdiction over the person of a defendant, enjoin him from bringing or prosecuting an action in another State? Generally speaking they will, when, by so doing, more complete justice can be done between the parties. In Locomobile Co. of America v. American Bridge Company of New York (1903) 80 N. Y. Sup. 288, such an injunction was granted, the Court being convinced, in view of the circumstances of the case, that better justice could be done in New York than in Connecticut.

The question is at best one of policy. For, having once obtained jurisdiction, a court of equity can, by acting in personam, prohibit the inequitable acts of either party. But the propriety of exercising this power, when its exercise indirectly interferes with the courts of independent States, has been the cause of much difference of opinion.

In England both the power and the propriety were formerly doubted. In Lowe v. Baker (1692) 2 Freem. 125 Lord CLARENDON refused to grant the injunction on the ground that the court had no authority to bind a foreign court. The reporter, however, throws doubt on his conclusion by adding "Sed quære, for all the bar was of another opinion?" This doubt was finally dispelled by Lord BROUGHAM in Portarlington v. Soulby (1834) 3 Myl. & K. 104, in which he reviews the whole subject, points out that the court is only commanding the obedience of the defendant, and declares that the power should be exercised whenever justice demands it.

In the United States the subject assumes several aspects. On the one hand there is danger of conflict between the courts of different States, and on the other of conflict between State and Federal courts. And in each of these there arise two questions: 1st. Is such an interference in accord with the spirit of comity that should exist? 2d. Does such an injunction contravene the full faith and credit clause of the Federal Constitution, (Const. Art. IV. Sec. 1)?

Considering these in the order named, we find in early times a strong tendency on the part of the courts of one State to refuse to interfere, even in this indirect manner, with the courts of other States. Boyd v. Hawkins (N. Car. 1833) 2 Dev. Eq. 229. New York w probably the strongest exponent of the doctrine and Mead v. Merritt (1831) 2 Paige 402 is cited by all its advocates. In that case Chancellor WALWORTH says "I am not aware that any court of equity in the Union has deliberately decided that it will exercise the power, by process of injunction, of restraining proceedings which have been previously commenced in the courts of another State." This case was followed in Williams v. Ayrault (1860) 31 Barb. 364, and Harris et al v. Pullman et al. (1876) 84 Ill. 20, and was interpreted as laying down an iron-bound rule of policy. But this interpretation may be doubted in the light of another case decided also by Chancellor WALWORTH, Burgess v. Smith (1847) 2 Barb. Ch. 276, and of a long line of cases in New York and elsewhere, in which the courts refuse to be bound in this absolute manner.

In Vail v. Knapp (1867) 49 Barb. 299, the court say "While as a general rule, the propriety of which is apparent, the courts of this

State decline to interfere by injunction to restrain its citizens from proceeding in an action which has been commenced in the courts of a sister State, yet there are exceptions to this rule, and when a case is presented, fairly constituting such exception, extreme delicacy should not deter the court from controlling the conduct of a party within its jurisdiction to prevent oppression or fraud." This is a fair expression of the present policy of the courts of this country as well as of England. 2 Story Eq. Jr. §§ 899, 900; Dehon v. Foster (1862) 4 Allen 545; Engel v. Scheuerman (1869) 40 Ga. 2c6; Snook v. Snetzer (1874) 25 Ohio St. 516; Keyser v. Rice (1877) 47 Md. 2c3; Allen v. Buchanan (1892) 97 Ala. 399.

The constitutionality of such proceedings has been doubted, but that phase of the question was settled by Cole v. Cunningham (1889) 133 U. S. 107, in which the Supreme Court upheld the injunction, recognizing the essential distinction between a court's refusing to give credit to the decrees of another court, and a court's exercising its power to restrain an individual.

On principle the same conclusions should be reached in conflicts between State and Federal courts. Such has not been the case. Judiciary Act 1793 (incorporated in Revised Statutes U. S. § 720) prohibited Federal courts from granting injunctions to stay proceedings in State courts, except where authorized by bankrupt laws. This, however, has been construed to apply only to cases in which the State court had first obtained jurisdiction. Fisk v. Union Pacific Ry. Co. (1873) 10 Blatchf. 518; French v. Hay (1874) 22 Wall. 250. Thus far the only inconsistency in the results has been created by statute. The real inconsistency is met with when we consider the reverse of the proposition, viz.: the right of a State court to interfere in Federal proceedings. It has been broadly stated that the State court has no such right. Riggs v. Johnson Co. (1867) 6 Wall. 166. This can only be supported on the ground of public policy, which recognizes the danger of conflict between State and Federal courts, growing out of that peculiar concurrent jurisdiction. Even granting that possibility, the better reasoning would seem to allow the injunction against a litigant in a Federal court as well as in a sister State court. Ackerly v. Vilas (1862) 15 Wis. 440; Home Insurance Co. v. Howell (1873) 24 N. J. Eq. 238.

DECLARATIONS AS PART OF THE RES GESTA. -The looseness of modern decisions in the interpretation of the so-called res gesta rule was well illustrated by the recent case of Rogers v. Manhattan Ins. Co. (Cal. 1903) 71 Pac. 348, which held, in a suit in which the death of an insured person was the issue, that a letter written by him immediately prior to his disappearance, announcing his intention to commit suicide, was admissible as part of the res gesta.

The Latin phrase res gesta is generally supposed to have occurred first in Tooke's Case (1794) 25 Howell's State Trials 440, and to have taken the place of the English word "transaction" which was used in Rex v. Hardy (1794) 24 Howell's State Trials 199 and earlier cases in the discussion of this class of evidence. 15 American Law Review, 1. Although its development in the law has been marked by a decided tendency to envelop its meaning in such obscurity that today nearly any hearsay may be introduced under cover of the phrase

res gesta, it is believed a consistent and convenient rule can be formulated by a strict adherence to the etymological and historical significance of the term. The reason for the admission of declarations as part of the res gesta is that the parts of a transaction are the best evidence to illustrate and characterize it, that the parts are so interwoven with each other into a whole, that each gives credit to the other, and not, as is often erroneously said, that the surrounding circumstances give such credit to the declarant that his statements are as trustworthy as the testimony of a witness under oath. Waldele v. N. Y. Ry. (1884) 95 N. Y. 274. Whenever therefore such declarations are not part of the transaction the reason for their admissibility will cease, and this should be true whether they are closely or remotely connected with the transaction in point of time. State v. Maddox (1898) 92 Me. 348. The true test would not be whether the declarations are contemporaneous in time, as prescribed in McKelvey on Evidence, § 79, or so closely connected with it as to give the declarant no time to devise false statements for his benefit, as was held in Keyes v. City of Cedar Falls (1899) 107 Iowa, 507, but the logical test would be "whether the declaration is a verbal act illustrating, explaining or interpreting other parts of the transaction of which it is itself a part, or is merely a history or part of the history of a completed past affair." Mayes v. The State (1886) 64 Miss. 329, 333. No arbitrary time limits can be placed upon the res gesta, Wharton's Criminal Evidence, § 262, but in every case, what is the completed transaction is a question of fact, which like many others, must be determined by the court. The authorities are in such a chaotic condition they cannot be said to support this or any consistent rule This conflict is due to confounding by the courts of declarations that are part of the res gesta with those that are admitted in bankruptcy, rape, and agency cases, and as declarations of intention and physical condition. The declarations allowed in cases of bankruptcy, Bateman v. Bailey (1794) 5 T. R. 512; rape, Rex v. Megson (1840) 9 Car. &. P. 420 and agency, Fairlie v. Hasting (1804) 10 Ves. Jr. 123, subsequent to the action, deal with the substantive law of these subjects and properly are no part of the law of evidence. Thayer's Cases on Evidence 641. Declarations of intention, frequently admitted in domicile cases, Matzenbaugh v. People (1901) 194 Ill. 108, are allowed, in cases where the state of mind of the declarant is in issue, on the ground that they are the best and frequently the only means of ascertaining his state of mind. Declarations of physical condition are admitted, when made to a physician or, as groans, instinctively or the ground that they are the best evidence and the circumstances are such as to give credit to the declarant, Bacon v. Charlton (1851) 7 Cush. 581. These last two examples, however, are separate and distinct exceptions to the hearsay rule and have no connection with the res gesta; a distinction which an examination of the leading cases will show the courts have often failed to recognize.

In Ins. Co. v. Moseley (1869) 8 Wall 397, a leading American case, declarations of physical condition, made subsequent to an accident, were admitted as part of the res gesta, the accident. This decision was erroneously reached on the authority of Rawson v. Haigh (1824) 2 Bing. 99, a case of bankruptcy and three other cases which will be discussed more fully. The first, Rex v. Foster

(1834) 6 Car. & P. 325 was decided in a very short opinion entirely on the authority of Aveson v. Lord Kinnaird (1805) 6 East 188, a case that had properly admitted declarations of physical condition and could be no authority on the res gesta rule. The report of the second case-Thompson et ux. v. Trevonion (1693) Skinner 402, in which Lord HOLT allowed a statement made by the injured party immediately upon the injury, was too meagre for the principle of the decision to be deduced therefrom. It is noteworthy, though, that this case was decided a hundred years before there was any attempt to lay down a rule for the admission of this kind of evidence. The third case-Commonwealth v McPike (1849) 3 Cush. 181, reached a conclusion that would destroy any principle or rule and establish the "sound discretion of the presiding judge" as the test. Another case,-Ins. Co. v. Hillmon (1891) 145 U. S. 285, often quoted, as in the principal case, as a leading authority on this subject, decided solely that a declaration of intention was admissible to prove mental condition. In England the leading case of Regina v. Bedingfield (1879) 14 Cox, C. C. 341, in refusing to admit declarations made by a wounded person a few seconds after the assault on the ground that they were narrative and not part of the transaction established a sound doctrine. This decision was so violently attacked in the press, including an article by the learned. author of Taylor on Evidence, that it was supported extra-judicially by Chief Justice COCKBURN, who had written the opinion, in a pamphlet which, save for erring in giving an indirect sanction to a distinction between the criminal and civil application of the rule (1 Bishop's Criminal Procedure § 1080) analyzed correctly the authorities and laid down a logical and convenient working rule. The principles enunciated by the Chief Justice were again the subject of adverse criticism and this time by a no less eminent authority than the late Professor Thayer, 14 Am. L. R. 817, 15 Am. L. R. 1, 71. Professor Thayer took the illogical position of supporting the decision in Commonwealth v. Hackett (1861) 2 Allen 136, where declarations, made within a few seconds of the completion of the transaction, but concededly narrative, were admitted, while disagreeing with Commonwealth v. McPike (supra) which admitted declarations made a few minutes after the transaction. He defended his position on grounds. of expediency, holding the declarations in the first case were nearly enough contemporaneous to warrant their admission, while in the second case they were not. The practical result of this doctrine would be to make the trial court determine within certain time limits whether the declarations were sufficiently contemporaneous, which would resolve itself into establishing the "sound discretion of the presiding judge," as the test. The case of Commonwealth v. McPike was decided by such a rule, the result of which Professor Thayer expressly disapproves.

In the principal case the declared intention of the insured might be of some evidentiary value in determining whether or not he was dead (see Ins. Co. v. Hillmon, supra) and the admission of the letter might, therefore, be supported on that ground. But unless the disappearance of the insured-hardly an "act done"-can be said to be the res gesta, there was no definite transaction of which this letter could be a part, and the court erred in admitting it as such.