(dissenting). On mature consideration, I find myself unable to concur in so much of the foregoing opinion as holds that the testimony containing the alleged false answer to the question propounded to the bankrupt, the defendant below, does not come under the protection of the immunity clause to section 7 of the bankrupt act. By the first clause of said section, the bankrupt is required to attend the first meeting of creditors; “if directed by the court, or a judge thereof to do so, and the hearing upon his application for a discharge, if filed.” The bankrupt did attend and testify at the hearing of his application for final discharge in response to the subpoena from the referee, which was equivalent to the order of the court. The second, third, fourth, fifth, sixth, and seventh clauses of the section pertain merely to acts to be done by the bankrupt in aid of the administration of the estate, which do not involve the making of an oath by him. The eighth clause imposes upon him the duty of preparing under oath a schedule of his property and a list of his creditors. As this is not “testimony,” but is an oath per se, it comes clearly within the purview of section 29b (2) of the bankrupt act, on which ati indictment may be predicated. Then follows subsection 9 of section 7, which declares that:
“When present at the first meeting of his creditors, and at such other'times as the court shall order, submit to an examination concerning the conduct of his business, the cause of his bankruptcy, his dealings with his creditors and other persons, the amount, kind, and whereabouts of his property, and, in addition, all matters which may affect the administration and settlement of his estate; but no testimony given by him shall be offered in evidence against him in any criminal proceeding.”
The bankrupt submitted himself on such order “to an examination concerning the conduct of his business, * * * his dealings with other persons, * * * and the whereabouts of his property.” It was in respect of his dealings with certain goods coming into his possession, claimed to belong to the estate, about which he was interrogated, and is alleged to have answered falsely. Immediately in this connection occurs the immunity provision that “no testimony given by him shall be offered in evidence against him in any criminal proceeding.” Among the objects of such examination of the bankrupt, either at the first meeting of his creditors or at the hearing of his application for final discharge, is the conservation of the interests of the estate in the matter of .discovering assets and obtaining other information, as “matters which may affect the administration and settlement of his estate.” To induce him to make answer and to waive his right to stand mute where any fact elicited from him might subject him to criminal prosecution, this proviso was evidently added. He had made oath to his schedules, purporting to cover and account for all his property. Concededly, no testimony he might give on such examination could he employed against him on a criminal prosecution for having made a false oath to such schedule. But it is asserted that such immunity of section 7 extends only to the offering of any testimony he may give on such examination against him where he is indicted for making a false oath in some other matter pertaining to the proceedings in bankruptcy, and that the purpose of Congress was to induce *646him to tell the truth, and not a falsehood, about the matter inquired about. It ought to be sufficient, it seems to me, to say that this proviso does not so state. Its language cannot be extended by implication where it is sought to deprive the citizen of his liberty. In plain and unambiguous language the statute says to the bankrupt, when he submits to the examination by the court, that “no testimony given by you on this hearing shall be offered against you in any criminal, proceeding, and therefore you need not stand on your right to remain mute, but you may testify as you may, with full impunity.” No case could be made out against him under an indictment for perjury without offering in evidence his testimony given in the examination. It would be little less than a fraud upon him to induce him to take the witness stand and testify under statutory language so broad, and then hold that the immunity was intended by Congress to apply only to the instance where he may be indicted for having sworn falsely in some other matter. If Congress so intended, it should have said so, which it could have expressed by the addition of a few words. This is what Congress did in the act of February 25, 1868 (chapter 13, § 1, 15 Stat. 37, now section 860, Rev. St. [U. S. Comp. St. 1901, p. 661]), where it declared that no discovery or evidence obtained from a party or witness by means of a judicial proceeding “* * * shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States in any criminal proceeding.” But in qrder to place the limitation upon the immunity asserted in the majority opinion, Congress inserted the following proviso: “That this section shall not exempt any party or witness from prosecution and punishment for perjury committed in discovering or testifying as aforesaid.” So in the act of February 11, 1893, (chapter 83, 27 Stat. 443, 444 [U. S. Comp. St. 1901, p. 3173]), relating to the testimony in investigations, etc., under the interstate commerce law, after requiring persons to appear and produce books and testify, under the assurance of exemption from prosecution for anything concerning which the party might testify, Congress added the proviso: “That no person so testifying shall be exempt from prosecution and punishment for perjury committed in so testifying.” .From which it appears that in the understanding of Congress, the broad terms of said statutes exempting the party testifying from prosecution, it would embrace a prosecution for perjury predicated on his testimony so given. Therefore, it added the proviso that he would not be exempt, however, from prosecution and punishment for perjury committed in so testifying. The omission of this proviso from subsection 9 of section 7 of the bankrupt act is most significant. Congress was legislating respecting proceedings under the bankrupt act, and it made all the provisions deemed by it advisable. Evidently enough, it did not conceive that said section 860 of the General Statutes was applicable.
The objection interposed by the defendant below to the admission of his testimony given before the referee in bankruptcy, in my judgment, should have been sustained, and the defendant discharged.