Wrothington v. Scribner.

witness against the defendant; leaving the question of the production of the letter, if containing any matter which in the judgment of the president could not be disclosed without injury to the public, to be considered on the return of the subpoena. 1 Burr's Trial, 177-189. And he never had occasion to decide that question. See 2 Burr's Trial, 533–539.

In United States v. Moses, 4 Wash. C. C. 726, upon the trial of an indictment for counterfeiting, it was ruled that the officer who apprehended the defendant was not bound to disclose the name of the person from whom he received the information which led to the detection and arrest; Mr. Justice WASHINGTON saying that such disclosure might be highly prejudicial to the public in the administration of justice by deterring persons from making similar disclosures of crimes which they knew to have been committed.

In State v. Soper, 16 Me. 293, a like ruling was made upon the cross-examina ion of the owner of stolen goods, when called as a witness for the government upon the trial of an indictment for larceny.

In Pennsylvania, it has been determined in an action for a libel contained in a deposition made and sent to the governor by a private citizen, charging the plaintiff with misconduct in office, that it was within the discretion of the governor to produce or withhold the letter, and that parol evidence of its contents was inadmissible. Gray v. Pentland, 2 S. & R. 23; Yoter v. Sanno, 6 Watts, 164, 166. In White v. Nicholls, 3 How. 266, and Howard v. Thompson, 21 Wend. 319, cited for the plaintiff, the original letters to the president and the secretary of the treasury, which were relied on as containing libelous matter, were produced by the plaintiff, who must have obtained them by permission of the government, so that no question of compelling a disclosure arose; and in Howard v. Thompson the court said that if the letters had not been surrendered by the secretary of the treasury, he could not have been compelled to produce them, and secondary evidence of their contents could not have been admitted.

The only cases which afford any color for the plaintiff's position are of rulings at nisi prius, of very little weight, as compared with so many well-considered judgments rendered upon full argument.

In one case before Lord KENYON and another before Baron ROLFE, a witness who appeared on his direct examination by the government to be an informer was permitted, without objection, to

Worthington v. Scribner.

testify on cross-examination that no other person gave information upon the subject; but in such a case, Baron ROLFE remarked, "The principle was rather followed than violated." The King v. Blacknan, 1 Esp. 95; Regina v. Candy, cited 15 M. & W. 175.

The ruling of Chief Justice COCKBURN, upon an indictment for aiministering poison, in Regina v. Richardson, 3 F. & F. 693, com. pelling a policeman to answer on cross-examination from whom he had received the information in consequence of which he found the poison in a place used by the defendant, must be maintained, if at all, upon the ground that the witness had already been examined by the government as to part of the conversation between him and the informer, and might, therefore, for the protection of the defendant against any unjust inference which might be drawn from the result of such examination, be required to state the whole of that conversation.

The ruling of Lord CAMPBELL in Dickson v. Wilton, 1 F. & F. 419, that a communication sued on as a libel, held by the secretary for war in behalf of the crown, should be produced from his office. and read in evidence, was, as observed by Chief Baron KELLY in delivering the judgment of the exchequer chamber in Dawkins v. Rokeby, Law Rep., 8 Q. B. 255, 273, directly at variance with the previous judgment of that court in Home v. Bentinck, 2 Brod. & Bing. 130, above cited.

In Blake v. Pilford, 1 Mood. & Rob. 198, in which Mr. Justice TAUNTON admitted in evidence, to support an action for libel, a letter to the chief secretary of the postmaster-general from a private individual, complaining of the misconduct of a guard, the objection was made by the defendant's counsel, "on the ground that it was a privileged communication made to a public officer, and that such public officer ought not to be allowed to produce it ;" the postoffice department had evidently suffered the letter to pass into the plaintiff's hands, for the report states that the handwriting was proved before the objection was made; and the whole attention of the judge seems to have been directed to the question whether the letter could be deemed a privileged communication upon which no action would lie. This last question was the only one touched by the other authorities cited for the plaintiff. Fairman v. Ives, 5 B. & Ald. 642; Dawkins v. Paulet, L. R., 5 Q. B. 94; O'Donohue v. McGovern, 23 Wend. 26; 2 Kent's Com. (6th ed.) 22.

The question now before us is not one of the law of slander or

Bennett v. Goldthwait.

bel, but of the law of evidence; not whether the communications of the defendants to the officers of the treasury are so privileged from being considered as slanderous, as to affect the right to maintain an action against the defendants upon or by reason of them; but whether they are privileged in a different sense, so that courts of justice will not compel or permit their disclosure without the assent of the government to whose officers they were addressed. The reasons and authorities already stated conclusively show that the communications in questions are privileged in the latter sense, and cannot be disclosed without the permission of the secretary of the treasury. And it is quite clear that the discovery of documents which are protected from disclosure upon grounds of public policy cannot be compelled, either by bill in equity or by interrogatories at law. Smith v. East India Co., 1 Ph. Ch. 50; McElveney v. Connellan, 17 Irish C. L. 55; Wilson v. Webber, 2 Gray, 538. defendants therefore should

Not be ordered to answer the interrogatories.

BENNETT V. GOLDTHWAIT.

(109 Mass. 494. )

Bankruptcy-proving debt bars action.

Proving a debt for goods sold and delivered in bankruptcy proceedings bars an action on the debt previously commenced.

CONTRACT for goods sold and delivered. The answer alleged that after the issuing of the writ, the defendant was adjudged a bankrupt on his own petition, and the plaintiffs proved the debt declared on against his estate. At the trial in the superior court, before ROCKWELL, J., the plaintiffs admitted that the facts alleged in the answer were true, whereupon the judge ruled that those facts were a defense to the action, and directed a verdict for the defendant which was returned, and the plaintiffs alleged exceptions.

I. W. Richardson for plaintiffs.

S. B. Ives, Jr., and S. Lincoln, Jr., for defendant.

Bennett v. Goldthwait.

GRAY, J. The existing bankrupt act of the United States provides that "no creditor proving his debt or claim shall be allowed to maintain any suit at law or in equity therefor against the bankrupt, but shall be deemed to have waived all right of action. and suit against the bankrupt, and all proceedings already commenced or unsatisfied judgments already obtained thereon shall be deemed to be discharged and surrendered thereby." U. S. Stat. of 1867, ch. 176, § 21.

This provision was not contained in the bankrupt act of 1800, nor in our own insolvent laws, and the decisions under either of those statutes have therefore no bearing upon this case.

A provision substantially similar, derived from the English bankrupt acts, was inserted in the United States bankrupt act of 1841, ch. 9, § 5; and its effect was uniformly construed to be that the proof of a debt in bankruptcy was a full and conclusive bar, at least to any action or suit already brought thereon. PRENTISS, J., in

Comstock's case, 5 L. R. 163, 165; WARE, J., in Everett v. Derby, id. 225, 227; STORY, J., in Ex parte Tebbetts, id. 259, 265; Haxton v. Corse, 4 Ed. Ch. 585, and 2 Barb. Ch. 506; Humphreys v. Swett, 31 Me. 192; Commercial Bank v. Buckner, 20 How. 108.

There is nothing in the other provisions of the bankrupt act to diminish the effect of this clause, at least as to any debt which would be barred by a discharge under the act. And the next clause in this very section, which provides for the stay of actions to await the determination of the court in bankruptcy upon the question of the discharge, speaks only of a creditor "whose debt is provable," instead of saying generally "any creditor," or mentioning both proved and provable debts, as in the subsequent sections relating to provisions for opposing or annulling the discharge. §§ 31, 34. In re Needham, 1 Low. 309. It has indeed been held by Mr. Justice NELSON that a judgment obtained upon a debt of a class which by section 33 would not be barred by any discharge under the act (such as a debt created by fraud of the bankrupt, or in a fiduciary relation) was not surrendered by proving the debt in bankruptcy. In re Robinson, 6 Blatchf. C. C. 253. But that decision is opposed to the opinion of Mr. Justice STORY in Ex parte Tebbetts, above cited. And it is not necessary to consider which of the two should be followed, because it does not appear that the plaintiff's debt was of such a character.

The intention of congress would seem at least to have been to

Sweet v. Dutton.

hold any general creditor, who elects to take the benefit of the commission in bankruptcy, to have thereby abandoned any judicial proceeding already instituted upon the same debt, which might give bim a priority or advantage over other creditors as against the bankrupt or his property. Whether a creditor, after proving his claim, and before the question of the bankrupt's discharge has been passed upon by the court in bankruptcy, can bring a new suit against the bankrupt, is a question not now before us.

Exceptions overruled.

SWEET V. DUTTON.

(109 Mass. 589.)

Trust-" heirs" in deeds of personalty mean personal representatives.

A by deed conveyed all her property, "both real and personal," to a trustee in trust, to pay the income to her during her life, and at her death to transfer the property as she should by will appoint, and in default of such will to convey the property to her "heirs at law." The trust property was all per sonal. A died intestate. Held, that the trust property being personalty, the word "heirs" meant the persons entitled to take under the statute of distributions, and that therefore the property went to A's husband, and not to her child.

BILL IN EQUITY by Charles A. Sweet against Horace Dutton and Martha S. Dutton for the construction of a deed of trust. The bill alleged that Martha G. Sweet, plaintiff's daughter, by deed of indenture, conveyed to plaintiff "all the property, both real and personal, of which I am now seized, or to which I am in any way entitled either in law or equity," in trust to pay the net income to her during her life, free from the control of any future husband she might have, and on her death to pay over and transfer all the property in his hands to such persons as she should by her last will or other instrument in writing appoint, and in default of such will or appointment, then "to convey and pay over the said trust property to her heirs at law;" that the deed contained the following provisions: "The said Martha G. Sweet hereby fully authorizes and empowers said Charles A. Sweet to sell, assign, grant and con