In re Merrill

D. Vermont

In re Merrill

17 F. Cas. 80, 9 Ben. 165, 16 Nat. Bank. Reg. 35, 1877 U.S. Dist. LEXIS 197

DecidedMay 24, 1877

StatusPublished

This text of 17 F. Cas. 80 (In re Merrill) is published on Counsel Stack Legal Research, covering District Court, D. Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Merrill, 17 F. Cas. 80, 9 Ben. 165, 16 Nat. Bank. Reg. 35, 1877 U.S. Dist. LEXIS 197 (D. Vt. 1877).

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Opinion

WHEELER, District Judge.

Upon the question concerning the competency of the creditor as a witness in his favor, certified by the register, the law of the forum must as a matter of course govern. In these proceedings the courts of the United States constitute the forum and consequently the laws of the United States must control in this respect By those laws no witness can be excluded on account of interest except in actions by or against executors, administrators or guardians in which judgments may be rendered for or against them. Rev. St. § 858. By the laws of the state, where one party to a contract or cause of action in issue and on trial is dead the other is excluded as a witness. According to the state law this creditor would be excluded. Such exclusion however would be on account of interest of the witness, and contrary to the law of the United States, unless the case would fall within the exception contained in the proviso to the statute on this subject.

The proof of a debt against an estate in bankruptcy is not a proceeding against a bankrupt, nor his guardian if he have one when alive, nor against his executor or administrator when he is dead, but is a proceeding in rem solely and affects the estate only. It is not an action against either an executor or administrator for or against whom any judgment can be rendered in it, and is not within the exceptions in the law of the United States.

The law of the United States prohibits the exclusion of this witness on account of his interest; and as it would seem, the law of the state, which but for this prohibition would exclude him, is not in force in this proceeding. For these reasons, in the opinion of this court the decision of the register excluding the witness is erroneous.

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WHEELER, District Judge.

Upon the question concerning the competency of the creditor as a witness in his favor, certified by the register, the law of the forum must as a matter of course govern. In these proceedings the courts of the United States constitute the forum and consequently the laws of the United States must control in this respect By those laws no witness can be excluded on account of interest except in actions by or against executors, administrators or guardians in which judgments may be rendered for or against them. Rev. St. § 858. By the laws of the state, where one party to a contract or cause of action in issue and on trial is dead the other is excluded as a witness. According to the state law this creditor would be excluded. Such exclusion however would be on account of interest of the witness, and contrary to the law of the United States, unless the case would fall within the exception contained in the proviso to the statute on this subject.

The proof of a debt against an estate in bankruptcy is not a proceeding against a bankrupt, nor his guardian if he have one when alive, nor against his executor or administrator when he is dead, but is a proceeding in rem solely and affects the estate only. It is not an action against either an executor or administrator for or against whom any judgment can be rendered in it, and is not within the exceptions in the law of the United States.

The law of the United States prohibits the exclusion of this witness on account of his interest; and as it would seem, the law of the state, which but for this prohibition would exclude him, is not in force in this proceeding. For these reasons, in the opinion of this court the decision of the register excluding the witness is erroneous.

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Bluebook (online)

17 F. Cas. 80, 9 Ben. 165, 16 Nat. Bank. Reg. 35, 1877 U.S. Dist. LEXIS 197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-merrill-vtd-1877.