(after stating the facts as above). Arbitrary rules fixing the competency of a witness “mentally incompetent” to testify do not obtain. Courts have been “keeping pace with the progress of science” and enlightened unfolding, and have relaxed the rigor of the rules, and now competency depends upon the understanding and moral sense — the degree of intelligence and understanding — of the witness. A lunatic is generally recognized as competent to testify, if he has sufficient mind to understand the nature and obligation of an oath, and give expression to the matters of which he knows or has seen and heard. See Lanier v. Bryan, 184 N. C. 235, 114 S. E. 6, 26 A. L. R. 1488, and cases cited. Unsoundness of mind of itself will not render a person incompetent as a witness. The competency is determined by his understanding of the obligation of an oath, and ability to give a correct account of what he has seen and heard, in reference to the matter in controversy. Dist. of Col. v. Arms, 107 U. S. 519, 2 S. Ct. 840, 27 L. Ed. 618; New York Evening Post Co. v. Chaloner (C. C. A.) 265 F. 204, writ of certiorari denied 252 U. S. 591, 40 S. Ct. 396, 64 L. Ed. 731.
Whether the witness can meet the test is a question for the court. Dist. of Col. v. Arms, supra; N. Y. E. P. Co. v. Chaloner, supra; Czarecki et al. v. S. & S. F. R. & N. Co., 30 Wash. 288, 70 P. 750; Miller v. Green, 125 Wash. 570, 216 P. 843. The competency of the alleged bankrupt as a witness may not be determined by the order of the state court adjudicating him “mentally incompetent,” but must be determined by the sound discretion of the referee at the time of his examination.
The motion to withdraw and rescind the order is denied.