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as well as bankruptcy courts, or whether it is applicable to suits like the present one * or whether the bankrupt may invoke its provisions. For, if applicable here, the authority given by that section to stay pending suits after adjudication, which has taken place here, is not mandatory, but permissive, to be exercised in the sound discretion of the court. There is no suggestion that there was any abuse of discretion by the state court in refusing to stay its hand on the bare showing by the fraudulent bankrupt that there had been an adjudication in bankruptcy. It does not appear that there is any creditor other than respondent, or that the trustee had not been advised of the suit, or that the bankrupt could not, by giving notice to the trustee, have afforded the trustee ample opportunity to assert his rights if there were other creditors to protect. On the other hand, if § 11 (a) does not apply, but if it be assumed that the general scheme of the Act implies some duty of the state court to preserve the estate until opportunity is given the bankruptcy court to assert its jurisdiction, see Acme Harvester Co. v. Beekman Lumber Co., 222 U.S. 300, 308; In re Moore, 42 F. (20) 475, 478, still the petitioners have failed to show that there has been no such opportunity.


after an adjudication or the dismissal of the petition; if such person is adjudged a bankrupt, such action may be further stayed until twelve months after the date of such adjudication, or, if within that time such person applies for a discharge, then until the question of such discharge is determined. ..."

* See Smith v. Miller, 226 Mass. 187; 115 N.E. 243; Star Braiding Co. v. Stienen Dyeing Co., 44 R.I. 8; 114 Atl. 129; Collier, Bankruptcy (13th ed.), 414.

*Cf. Hill v. Harding, 107 U.S. 631; but cf. Remington, Bankruptcy (4th ed.), $ 3491.

• See In re Geister, 97 Fed. 322.


Argument for Petitioner.



NINTH CIRCUIT. No. 338. Argued December 12, 1933.

Decided January 8, 1934. 1. In the absence of congressional legislation on the subject, the admissibility of testimony in the federal courts in criminal causes, is governed by common law principles, as interpreted and applied by those courts in the light of reason and experience. Funk v. l'nited States, 290 U.S. 371.

P. 12. 2. The basis of the rule of evidence excluding proof of confidential communications between husband and wife, is the protection of the

marriage relation. P. 14. 3. As the privilege suppresses relevant testimony, it should be allowed

only where it is plain that marital confidence can not otherwise be

reasonably preserved. Pp. 14, 17. 4. A confidential communication by husband to wife through the

medium of his stenographer, held admissible, upon proof of it by

the stenographer testifying from the stenographic notes. P. 16. 64 F. (20) 556, affirmed.

CERTIORARI, 290 U.S. 617, to review the affirmance of a conviction under an indictment charging unlawful uses of the mails for the purpose of effecting a scheme to defraud.

Mr. George E. Flood, with whom Messrs. S. J. Wettrick and H. Sylvester Garvin were on the brief, for petitioner.

The state statute preserves the common-law privilege of communications from husband to wife.

In courts of the United States the common law rule governs. Connecticut Mut. Ins. Co. v. Schaefer, 94 U.S. 457; Liggett v. Glenn, 51 Fed. 381; Rosen v. United States, 245 U.S. 467.

There is a conflict in the decisions as to the admissibility of privileged communications where testimony thereof is procured from witnesses other than husband or wife, attorney and client, or physician and patient. This turns

Argument for Petitioner.

291 U.S.

upon whether the particular court adopts one or the other of two tests: First, that if the communication originates in confidence and under circumstances intended to be privileged, and if the privilege is not consciously surrendered, the privilege will be enforced and the communication excluded; or, second, that regardless of the privileged origin and confidential nature, admissibility is purely a matter of custody of the communication; if it has been filched by any means, surreptitious or otherwise, the communication will be admitted. The first line of cases seek to consult the nature and the purpose of the communication and to carry out the policy of the principle. The second line of cases disregard the purpose and the policy and erroneously treat the privilege as if it were in derogation of the common law, seizing upon any circumstance, however slight, in order to defeat the privilege.

Among the cases repudiating this false doctrine are: Gross v. State, 61 Tex. Cr. Rep. 470; Liggett v. Glenn, 51 Fed. 381; Mercer v. State, 40 Fla. 716; Scott v. Commonwealth, 94 Ky. 511; Henderson v. Chaires, 25 Fla. 26; Selden v. State, 74 Wis. 271; Wilkerson v. State, 91 Ga. 729; State v. McKie, 165 Ga. 210.

The privilege extends not only to the attorney, but to the attorney's secretary, stenographers or clerks. Taylor, Evidence, SS 920, 946. Cf. Plunkett v. Coblett, 1804, 29 How. St. Tr. 71; Solomons v. Chubb, 1852, 3 Carr & K. 75; Forbes v. Samuel, 1913, 3 K.B. 719, 82 L.K.J.B. 1135; Taylor v. Foster, 1825, 2 C. & P. 195, 172 E.R. 89; DuBarre v. Livette, Peake N.P.C. 78; Parkins v. Hawkshaw, 2 Stark. 239, 171 E.R. 633; King v. Upper Bodington, 1826, 5 L.J.M.C. 10 (1827); Wartell v. Novograd, 48 R.I. 296; Hunt v. Taylor, 22 Vt. 556; Sibley v. Waffle, 16 N.Y. 180; In re Arnott, 1888, 60 L.T.N.S. 109; State v. Brown, 1896, 2 Marv. 380.

Although the privilege between physician and patient is statutory, the courts do not construe the statutes

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strictly, as in derogation of the common law, but very uniformly include within the privilege not only the patient and physician, but communications made to the physician's nurse, technician or X-ray specialist, or a communication made by the patient to the physician in the presence of any of the physician's necessary assistants. Culver v. Union Pacific, 112 Neb. 441; Power & Light v. Jordan, 132 So. 483; Toole v. Franklin Investment Co., 158 Wash. 696; Chicago, Lake Shore Ry. Co. v. Walas, 192 Ind. 369; Colorado Fuel & Iron Co. v. Cummings, 8 Col. App. 541; Owens v. Kansas City, C. C. & S. J. Ry. Co., 225 S.W. 234; Sparer v. Travelers, 173 N.Y.S. 673; Price v. Standard Life & A. Ins. Co., 90 Minn. 264.

Federal cases support the rule that a privileged communication remains privileged, irrespective of custody. Bowman v. Patrick, 32 Fed. 368. Cf. Liggett v. Glenn, 51 Fed. 381; Drier v. Continental Life, 24 Fed. 670; Connecticut Mutual v. Schaefer, 94 U.S. 457.

For a recent expression upon the privilege between husband and wife, see New York Life v. Ross, 30 F. (20) 80.

The stenographer in this case was an agent and representative, and not a stranger or third person. Wigmore, Evidence, 2d ed., $ 2339. Distinguishing id., § 2336; Cotton v. State, 87 Ala. 75; People v. Dunnigan, 163 Mich. 349; Pearce v. Pearce, 1847, 16 L.J.Ch. 153; State v. Wilkins, 72 Ore. 77; State v. Nelson, 39 Wash. 221; State v. Falsetta, 43 Wash. 159; Commonwealth v. Everson, 123 Ky. 330; State v. Young, 97 N.J.L. 501; Hammons v. State, 73 Ark. 495; Hopkins v. Grimshaw, 165 U.S. 342.

Under the great weight of authority today, the dictation of libelous statements to a stenographer, or the delivery of a written libelous communication to a stenographer, clerk, typist, or agent, do not constitute delivery or publication and are deemed privileged. This was not always the case. It is a modern growth and development in the law. See Pullman v. Hill, 1 Q.B. 524; Boxius v. Goblet Freres, 1894,

Argument for the United States.

291 U.S.

1 Q.B. 842; Lawless v. Anglo-American Cotton Co., L.R. 4 Q.B. 262; Edmondson v. Birch, L.R. 1 K.B. 371, 1907; Osborn v. Boulter (C.A. 1930), 2 K.B. 226.

Many American cases have adopted the rule of Edmondson v. Birch, supra, repudiating Pullman v. Hill, supra, notably such cases as Globe Furniture v. Wright, 265 Fed. 873; Owen v. Ogilvie, 53 N.Y.S. 1033; Cartwright-Caps Co. v. Fischel & Kaufman, 113 Miss. 359; Flynn v. Western Union Tel. Co., 199 Wis. 124; Prince v. Holland N.A. Mortgage Co., 107 Wash. 206.

Privilege can not be defeated by secondary proof. Dawkins v. Rokevy, 1873, 44 L.J.R. Q.B. 63 (Ex.); Atwood v. Chapman, 1914, 3 K.B. 275; Chatterton v. Secretary of State, 1895, 2 Q.B. 189; Bowman v. Norton, 1931, 5 C. & P. 177; Taylor, Evidence, p. 622.

Courts will not sanction evidence violative of public policy or principles of law. See opinion of Justice Brandeis in Olmstead v. United States, 277 U.S. 438; Gouled v. United States, 255 U.S. 298; Boyd Case, 116 U.S. 616; Weeks Case, 232 U.S. 383; Amos Case, 255 U.S. 313; Silverthorne Case, 251 U.S. 385.

Assistant Solicitor General MacLean, with whom Solicitor General Biggs and Messrs. Harry S. Ridgely and W. Marvin Smith were on the brief, for the United States.

The law applicable in determining the question of privilege is the law of Washington at the time Washington was admitted into the Union as a State.

Petitioner's stenographer was competent to testify as to the contents of the letter in question. Code of Washington Territory, 1881, $ 392; Remington's Rev. Stats., Vol. 3, § 1214; State v. Nelson, 39 Wash. 221; State v. Rasmussen, 125 Wash. 176.

The Washington decisions are clearly in accord with the great weight of authority, whether the privilege be

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