Berry v. Fletcher

3 F. Cas. 285, 1 Dill. 66

Opinion

PER CURIAM.

Trespass for injuries .to-the person and property of the plaintiff. The plaintiff’s counsel called, and asked to have sworn, as a witness, one of the defendants; to which the defendants’ counsel objected on the ground that one party could not compel an adverse party to testify. It was conceded by counsel that under the laws of the state of Missouri parties were both competent and compellable to testify in actions like the present. The court- held, referring to the judiciary act [of September 24, 1789, (1 Stat. 92,)] § 34, the act of July C, 1862, (12 Stat. 588, § 1,) and the act of July 2, 1864, (13 Stat. 533, § 3,) and of March 3, 1865, (13 Stat. 533,) that the objection was not well taken, and the defendant was sworn as a witness at the plaintiff’s instance. See Rison v. Cribbs, [Case No. 11,860.]

NOTE, [from original report.] In Tenny v. Collins, [Case No. 13,833,] it was held by the U. S. district court, eastern district of Missouri, that upon a motion to set aside the discharge granted to a bankrupt, the wife of the bankrupt cannot be required to testify as a witness against her husband. Respecting the point, Treat, District Judge, remarks: “The plaintiffs also summoned the wife of the bankrupt, who was sworn as a witness, and were proceeding to examine her in relation to the conveyance, in 1866, of land held mi her name by herself and husband, to her father in payment of other debts, and as a security for debts upon which he was jointly liable with the bankrupt. Objections were interposed, that while the bankrupt act provided for the examination of the wife of the bankrupt before the register for the purpose of ascertaining the condition of his estate, it did not alter the common rule, that the wife could not be a witness for or against the husband, in a motion to set aside the discharge. The objection was sustained by the court.