Hyman v. Kessler

PER CURIAM. This is a petition to review an order of tbe District Court requiring petitioner to appear and be examined concerning tbe acts, conduct, and property of ber busband, a bankrupt. Tbe order was issued under section 21a of tbe Bankruptcy Aet, as amended by Aet Feb. 5, 1903, § 7, 11 USCA § 44 (a). Tbe Congress passed an act in 1906 (28 USCA § 631) declaring “tbe competency of a witness to testify in any civil action, suit, or proceeding in the courts of tbe United States shall be determined by the laws of tbe State or Territory in which tbe court is' held.” Section 606 of tbe Civil Code of Practice of Kentucky provides, with certain exceptions not here pertinent, that: “Neither a busband nor bis wife shall testify while tbe marriage exists or afterwards concerning any communication between them during marriage. Nor shall either of them testify against tbe other.” It is tbe contention of petitioner that tbe act of 1906 modified section 21a of tbe ■Bankruptcy Act, as amended by tbe act of 1903, to tbe extent that it made tbe state law controlling, and as a wife cannot testify against ber busband or concerning any communications bad with him under tbe Kentucky law, it was not within tbe power of tbe bankruptcy court to order the petitioner to appear in court and testify in tbe present ease. Counsel rely upon. In re Kessler (D. C.) 225 F. 394. We cannot accept the decision in that ease as sound. Prior to 1903, tbe Bankruptcy Aet provided that a court might require .any person, including tbe bankrupt, “who is a competent witness under the laws of tbe State in which the proceedings are pending,” to appear in court to be examined concerning tbe acts, conduct, or property of tbe bankrupt. By tbe amendment of 1903 tbe words, “who is a competent witness under the laws of the State in which the proceedings .are pending,” were stricken from tbe aet and there were substituted therefor the words “and bis wife.” At that time great diversity existed in tbe laws of tbe several state's as to tbe competency of a busband or wife as a witness in ,a proceeding in which tbe other was interested, and in tbe interest of uniformity, as well as because in many eases tbe wife is tbe only witness who can shed any light upon tbe whereabouts of concealed .assets, there was good reason for tbe enactment of tbe amendment. Thus tbe Congress specifically included the wife within tbe provisions of section 21a of tbe act as one compellable to appear and testify concerning any business of tbe bankrupt transacted by ber or1 to which sbe bad been a party. Tbe later act of 1906 makes no reference whatever to tbe Bankruptcy Aet. It is not, we think, to be construed as repealing the former aet by implication. In re Cohn (D. C.) 39 F.(2d) 89. This is the view taken by tbe text-writers. Remington on Bankruptcy (1923), § 2022; Gilbert’s Collier on Bankruptcy (1927), p. 464; Black on Bankruptcy (3d Ed. 1922) par. 263. Tbe order is affirmed.