225 F. 394 | E.D. Pa. | 1915
Upon the certificate of the referee that Rose Kessler, wife of the bankrupt, being called before him as a witness, refused to answer questions in the course of the proceedings upon the ground that her answers might tend to incriminate her, an order was entered requiring her to show cause why she should not tie held in contempt. The proceedings before the referee were based upon a petition of the trustee for an order upon the bankrupt to turn over assets alleged to be withheld from his trustee, and the wife was called under the provisions of section 21a of the Bankruptcy Act, providing as follows:
“A court of bankruptcy may, upon application of any officer, bankrupt, or creditor, by order require any designated person, including the bankrupt and Ms wife to appear in court or before a referee or the judge of any state court, to be examined concerning the acts, conduct, or property of a bankrupt whose estate is in process of administration under this act: Provided, that the wifo may he examined only touchina husmess transacted hy her or to which she is a party, and to determine the fact whether she has transacted or been a party to any husmess of the hamlvrupt.”
The underscored words were added to the section by the amendatory Act of 1903. The words “who is a competent witness under the laws of the state in which the proceedings are pending,” which occurred in
After the amendment of 1903, the wife was a competent witness, within the limitations expressed in the proviso and subject to the general provisions as to competency of witnesses prescribed by Congress by the provisions of section 858 of the Revised Statutes. Since the amendment of 1903, however, Act June 29, 1906, 34 Stat. 618, has been passed, amending section 858 of the Revised Statutes, so that the section now reads:
“Tlie competency of a witness to testify in any civil action, suit, or proceeding in the courts of the United States shall be determined by the laws of the state or territory in which the court is held.”
A proceeding in bankruptcy is unquestionably a civil action, suit, or proceeding, and the competency of the wife to testify in a bankruptcy proceeding against her husband in this district is therefore to be determined by the laws of the state of Pennsylvania. The Pennsylvania Act of May 23, 1887, § 5 (P. R. 159), provides:
“(c) Nor shall husband and wife be competent or permitted to testify against each other, except in those proceedings for divoive in which personal service of the subpoena or o£ a rule to take depositions has been made upon the opposite party, or in which the opposite party appears and defends, in which ease either may testify fully against the other, and except also that in any proceeding for divorce either party may be called merely to prove the fact of marriage.”
Applying the act of 1906 to the Pennsylvania act of 1887, it follows that the respondent is incompetent, and cannot be permitted to testify against her husband in a civil proceeding under the Bankruptcy Act. judge Reilstab, in the district of New Jersey, has similarly interpreted the act of June 29, 1906, in the cases of In re Hoffman (D. C.) 28 Am. Bankr. Rep. 680, 199 Fed. 448, and In re Thompson (D. C.) 28 Am. Bankr. Rep. 794, 197 Fed. 681.
The respondent, therefore, cannot be held in contempt for refusing to testify before the referee, and the order to show cause is vacated.