In re Sapiro

E.D. Wisconsin

In re Sapiro

92 F. 340, 1899 U.S. Dist. LEXIS 54

DecidedJanuary 30, 1899

StatusPublished

This text of 92 F. 340 (In re Sapiro) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re Sapiro, 92 F. 340, 1899 U.S. Dist. LEXIS 54 (E.D. Wis. 1899).

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Opinion

SEAMAN, District Judge.

Upon careful review of the authorities, I am satisfied that the bankrupt cannot be excused from production of the account books in question upon the ground of constitutional privilege. Whether the privilege exists in favor of a witness or party in a civil proceeding, as here presented, does not clearly appear from the decision of the supreme court in Counsel-man v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, or in the later case of Brown v. Walker, 16 Sup. Ct. 644; but I assume, for the purposes of this case, that it may be invoked in civil, as well as in criminal, proceedings. Although much stress in these opinions is placed upon the distinction that the investigation by the grand jury is of criminal nature there is force in the argument that the reasoning of the opinions applies equally to any proceeding in' which a witness is required to testify; and such view has-the support of recent decisions cited by counsel and of In re Emery, 107 Mass. 172, cited with approval in the Counselman Case. But the privilege is [341]*341asserted here in favor of the bankrupt to excuse him from producing (he books of account kept in the business which he was conducting when his voluntary petition was died to invoke the benefits, and submit to the requirements, of the bankruptcy law. He thereby elected to place all his property (aside from exemptions), including these books of account, which contain apparently the only evidence of credits outstanding, at the disposition of this court. If he were otherwise privileged to withhold the books, his petition operates both as a waiver and as a transfer of the right of custody, and the books cannot now be withheld or withdrawn upon the assertion that they may contain criminating evidence or matter. If within the knowledge or control of the petitioner, the books must be disclosed and produced. Huling upon the facts is postponed for the hearing of further testimony.

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SEAMAN, District Judge.

Upon careful review of the authorities, I am satisfied that the bankrupt cannot be excused from production of the account books in question upon the ground of constitutional privilege. Whether the privilege exists in favor of a witness or party in a civil proceeding, as here presented, does not clearly appear from the decision of the supreme court in Counsel-man v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, or in the later case of Brown v. Walker, 16 Sup. Ct. 644; but I assume, for the purposes of this case, that it may be invoked in civil, as well as in criminal, proceedings. Although much stress in these opinions is placed upon the distinction that the investigation by the grand jury is of criminal nature there is force in the argument that the reasoning of the opinions applies equally to any proceeding in' which a witness is required to testify; and such view has-the support of recent decisions cited by counsel and of In re Emery, 107 Mass. 172, cited with approval in the Counselman Case. But the privilege is [341]*341asserted here in favor of the bankrupt to excuse him from producing (he books of account kept in the business which he was conducting when his voluntary petition was died to invoke the benefits, and submit to the requirements, of the bankruptcy law. He thereby elected to place all his property (aside from exemptions), including these books of account, which contain apparently the only evidence of credits outstanding, at the disposition of this court. If he were otherwise privileged to withhold the books, his petition operates both as a waiver and as a transfer of the right of custody, and the books cannot now be withheld or withdrawn upon the assertion that they may contain criminating evidence or matter. If within the knowledge or control of the petitioner, the books must be disclosed and produced. Huling upon the facts is postponed for the hearing of further testimony.

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92 F. 340, 1899 U.S. Dist. LEXIS 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-sapiro-wied-1899.

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