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10 Funk vs. Umted States. That court then refers to the settled doctrine that an adoption of the common law in general terms does not require, without re- gard to local circumstances, an unqualified application of all its rules; that the rules, as declared by the English courts at one period or another, have been controlling in this country only so far as they were suited to and in harmony with the genius, spirit and objects of American institutions; and that the rules of the com- mon law considered proper in the eighteenth eentury are not neces- sarily so considered in the twentieth. ‘‘Since courts have had an existence in America,'’ that court said (p. 708}, ‘‘they have never hesitated to take upon themselves the responaibility of saying what are the proper rules of the common law.’’ And the Virginia Supreme Court of Appeals, in Hanrtof v. Sherwood, 82 Va. 1, 15, after pointing to the fact that the common law of England is the law of that commonwealth except so far as applicable to the state of the country, and that the rules of the common law had undergone modification in the courts of England, notes with obvious approval that '‘the rules of evidence have been in the courts of this country undergoing such modification and changes, according to the circumstances of the eountry and the manner and genius of the people.’’ The supreme court of Connecticut, in Beardsley v. City of Hart- ford, 50 Conn. 529, 541-542, after quoting the maxim of the com- mon law, cessante ratione legis, cessat ipsa lex, said: ‘This means that no law can survive the reasons on which it is founded. It needs no statute to change it; it abrogates itself. If the reasons on which a law rests are overborne by opposing reasons, which in the progress of society gain a controlling force, the old law, though still good as an abstract principle, and good in its ap HG Gm 1S ap- plication to some cireumstances, must cease to apply ag a con- trolling principie to the new circumstances.’ The same thought is expressed in People v. Roendolph, 2 Park. Cr. Rep. (N, Y.) 174, 177: ma. “‘Tts rules [the rules of the common law] are modified upon ita owh principles and net in violation of them. Those rules being founded in reason, one of its oldest maxims is, that where the rea- son of the rule ceasea the rule alao ceases,’ It was in virtue of this maxim of the common Jaw that the su- preme court of Nevada, in Reno Smelting Works v. Stevenson, 20 Funk vs. United States. ll Nev. 269, in a well reasoned opinion, held that the common law doctrine of riparian righta was unsuited to conditions prevailing in the arid land states and territories of the west, and therefore was without foree in Nevada; and that, in respect of the use of water, the applicable rule was based upon the doctrine of prior appropriation for a beneficial use. In Illinois it was heid at an early day that the rule of the com- mon law which required an owner of cattle to keep them upon his own land was not in force in that state, notwithstanding its adop- tion of the common law of England, being unsuited to conditions there in view of the extensive areas of land which had been left open and unfenced and devoted to grazing purposes, Sealey v. Peters, 5 Gil. {Til} 130. Numerous additional state decisions to the same effect might be cited; but it seems unnecessary to pursue the matter at greater length. Tt resulta from the foregoing that the decision of the court below, in holding the wife incompetent, is erroneous. But that decision was based primarily upon Hendrix v. United States and Jin Fuey Moy v. United States, supra, and in fairness to the lower court it should be said that its decision was fully supported by those cases. In the Hendriz ease the opinion does not discuss the point; it simply recites the assignment of error to the effect that the wife of Hendrix had not been allowed to testify im hia behalf, and dis- misses the matter by the laconic statement, ‘‘The ruling was not error.’ In the Jin Fuey Moy case it was conceded at the bar that the wife was not a competent witness for all purposes, but it was eontended that her testimony was admissible in that instance be- cause she was offered not in behalf of her husband, that is not to prove his innocence, but simply to contradict the testimony of government witnesses who had testified to certain matters as having transpired in her presence. The court held the distine- tion to be without substance, as clearly it was, and thereupon dis- posed of the question by saying that the rule whieh excludes a wife from testifying for her husband is based upon her interest in the event and applies without regard to the kind of testimony she might give. The point does not seem to have been considered by the lower court to which the writ of error was addressed (253 i i