In re Mayer , 97 F. 328 ( 1899 )

SEAMAN, District Judge.

The proceeding before the referee in which this question arises is governed by section 2L of tbe bankruptcy act, which authorizes oiilv the examination of a person “who is a competent witness under the laws of the state in which the proceedings are pending.” Unlike the act of 18(57, no express provision is made to bring in the wife of a bankrupt “to be examined as a witness” (Rev. St. § 5088), and tbe decisions under tbat act are inapplicable. The present act establishes as the sole test of competency in these proceedings the law which prevails in the state of Wisconsin, and by repeated decisions of the supreme court of the state it is well settled that “the common-law disability and incompetency of husband and wife to testify for or against each other” remains unimpaired by statute, except in special instances, not involved in the question submitted here. Carney v. Gleissner, 62 Wis. 493, 22 N. W. 735; Smith v. Merrill, 75 Wis. 461, 44 N. W. 759; 2 Sanb. & B. Ann. St. Wis. § 4072, and notes. Under the rule at common law “a wife cannot be received as a witness for or against her husband,” aside from certain exceptions, not applicable here; and that rule is not dependent upon interest in the issue, but “rests solely upon public policy.” Therefore it is not affected by statutes which'remove objections to tbe competency of a. witness on account of interest. Lucas v. Brooks, 18 Wall. 436, 452. The testimony was originally excluded because “husband and wife are considered as one and tbe same person in the law, and to have the same affections and interests” (Bar. Abr. tit. “Evidence” A, 1), but tbe ground of public policy finally prevailed, as demanding “that those living in tbe marriage relation should not be compelled or allowed to betray tbe mutual trust and confidence which such a relation implies,” and was not limited to mere confidential communications, “but was an absolute prohibition of the testimony of tbe witness to any facts affecting tbe husband or wife, as the case might he, however tbe knowledge of those facts' might have been acquired.” 3' Jones, Ev. § 751; 1 Best, Ev. § 175. The doctrine thus stated clearly excludes the wife of the bankrupt from competency as a witness on the inquiry certified, and this view is well fortified by the riding of Judge Bunn in Re Fowler (D. C.) 93 Fed. 417. The case before Judge Brown in Re Foerst (D. C.) 93 Fed. 190, is not applicable, as the question of competency did not arise, and presumably was not open under the statute of New York which removes the common-law restriction. Southwick v. Southwick, 49 N. Y. 510, 513; People v. Wood, 126 N. Y. 249, 271, 27 N. E. 362.

In the argument of counsel to support this offer of testimony distinction is claimed in the peculiar nature of the proceedings in bankruptcy, and on the assumption that the bankrupt is not directly interested in the inquiry, and not a party to this branch of the proceedings. The bankrupt is clearly a party throughout the proceedings, and matters of interest to him, and even of criminal responsibility, may be involved in the inquiry. In either aspect, the testimony of the wife cannot be received when she is not brought in as a party. Let the answer be certified to the referee that the wife is not a competent witness in the matters proposed for inquiry.