IN RE SCOTT.
evidence that the notices to be mailed to such creditors would reach them, nor do the papers disclose facts showing a diligent effort to ascertain the definite post-office address to which notices should be sent, and a: failure upon such reasonable effort to ascertain the same. While the statute requires the residences to be stated, I think in order to further insure the purpose of the statute, the papers should, in addition, state also the post-offlce address with rea· sonable certainty, or contain allegations showing facts upon which it may be concluded that after reasonable effort, such addresses cannot be ascertained. Ordered, that the application for an order appointing a first meeting of creditors be withheld, and that the petition be amended or a new one filed correcting the errors above indicated. Charles h Stone, Referee in Bankruptcy."
Bankruptcy Rule No. xx. of the district court for the Northern district of New York provides that:
"Wohen a petition referred to a referee is insufficient upon its face to confer jurisdiction, he shall return the same to the clerk with a statement of the defects noted thereon, and no further proceeding shall be had thereon until a new or amended petition remedying such defects is filed with the clerk. The referee may, upon his own motion, direct that the schedules be made more definite and certain by requiring the street and number to be given where a creditor resides in a city, and the referee may direct that the bankrupt furnish any other information regarding his property or his creditors which the referee may deem essential."
C. W. Smith, for bankrupt. COXE, District Judge. The order made by the referee is one en· tirely within the scope of his authority pursuant to the provisions of the bankruptcy act and rule xx. of this court. Even though a motion to vacate or modify the referee's order were properly noticed referee as to matters so pebefore me I would not dictate to culiarly within his province. The administration of the law will be fraught with endless vexations if the judge assumes to meddle with the referees as to matters within their discretion. The affidavit of Mr. Smith, one of the attorneys for the bankrupt, dated June 5) 1899, may induce the referee to modify the objection numbered 4 in his order of June 1st. In any view such applications should first be presented to the referee. The matter is referred to the referee to take such action thereon as he may deem advisable.
In re SCOTT. (District Court, W. D. Pennsylvania. No.94.
1. BANKRUPTCy-ExAMINATION OF 'BANKRUPT-PRIVILEGE AGAINST SELF. CRIMI-
February 14, 1899.)
Where a person against whom indictments are pending in a state court is adjudged bankrupt on an involuntary petition, and brought before .the referee in bankruptcy for examination, he cannot be compelled to answer any questions propounded on such examination, where his answers would tend to criminate him on the trial of the pending indictments.
N A'rING EVIDENCE.
Although Bankruptcy Act 1898, § 7, relating to the examinlltion of a. bankrupt, provides that "no testimony given by him shall be offered in evidence against him in any criminal proceeding," yet a bankrupt, on such
95 FEDERAL REPO,RTER.
examination, cannot be compelled to answer any question which woule! tend to criminate him on the trial ofa pending Indictment against him In .a state court; for the statutory provision Is not so broad as the constitutionalprivllege against evldeJ:lce.
.. ' ,Where .a bankrupt,against whom Indictments were pending In a state court, was before the referee In bankruptcy for examination under BaIlkruptcy Act 1898, § 7, and tbe referee tendered bim an oath embodying tbose matters concerning wblch bankrupts are directed to be examIne(].bY said section, but the bankrupt refused to take such oath unless there was added thereto a reservation of bis right to claim privilege against any questions that might arise upon the examination, keld, tbat bis constitutional privilege did not exempt him from being sworn, that such reservation was unnecessary, and that he must 1;ake the oath as prescribed by the referee.
In Bankruptcy. On certificate of referee in bankruptcy. A. Y'.Smith, Oassidy & Richardson, William Kaufman, William C. Gill, Magnus Pflaum, W. A. Blakely, and Way, Walker & Morris, for creditors. J. K & E. G. Ferguson, for bankrupt.
BUFFINGTON, District Judge. One J. McD. Scott was committed to jail by the court of common pleas of Allegheny county on a bench warrant proceeding based on an alleged fraudulent contracting of a debt. 'He was by said court also held for trial for fraudulent insolvency. Subsequent to that court assuming jurisdiction in the premises, a petition in involuntary bankruptcy was filed against him in this . court, he was adjudged a bankrupt, and the cause referred to Referee Blair. On a writ of habeas corpus ad testificandum Scott was brought before the referee for examination. He declined to take the oath in the form prescribed by such referee, and, when subsequently sworn in the form suggested by his connsel, declined to answer certain questions. Such refusal was based on the ground that his answers thereto would tend to criminate him on trial of the criminal charges now pending. The question arising from these facts are certified by the referee to this court for its opinion. That the proposed questions would tend to criminate the witness is asserted by reputable and competent counsel who represent him in the criminal charge. The court being of like opinion, the question before us is whether, on an examination of an involuntary bankrupt before a referee, he can be compelled to disclose facts which tend to criminate him on a pending criminal charge. The fifth amendment to the federal constitution provides that "no person * * * shall be compelled, in any criminal case, to be a witness against himself," and in Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, it was held that this provision was not confined to a criminal case against the party, but its object was to insure ,that one should not Qe compelled, when acting as a witness in any investigation, to give testimony which might tend to show he had committed a crime. "It is impossible," says the court, "that the meaning of the constitutional provision canoJ:l'ly be that a person shall not be compelled to be a witriesa against It would doubtless cover suc:Q cases, but is not limited to them. The object was to insure that a person shall not be compelled, when acting as a witness in anJ'· investigation, to give
testimony which might tend to show that he himself had committed a crime. The privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks to guard." It is true that section 7 of the present bankrupt law provides, "But no testimony given by him shall be offered in evidence in any criminal proceeding," but such provision is not the equivalent of the constitutional safeguard. The testimony thus forced from a witness may disclose information by means of which other proof against him may be secured, and he thus be compelled, in effect, to furnish evidence to convict himself. Of the scope of a statute affording immunity to a self-incriminating witness the court in the case cited above say:
"We are clearly of opinion that no statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him can have the effect of supplanting the privilege conferred by the constitution of the United States. * * * In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates."
Clearly, the cited provision of the present law is below the standard here indicated, and is much more restricted than the broad immunity provision of the interstate commerce law, which, while it was held by the circuit court of this circuit (Brown v. Walker, 70 Fed. 46) a complete substitute for the constitutional provision, was so adjudged by a bare majority of the supreme court of the United States in 161 U. S. 591, 16 Sup. Ct. 644. The fact that an English witness in a bankruptcy proceeding had not the protection of such a constitutional right renders the English decisions cited inapplicable to the case of the present witness, who has a right in a bankruptcy examination to plant himself on the express constitutional exemption. The refusal of the witness to take the oath prescribed by the referee was, in our judgment, unwarranted. That oath embodied only matters concerning which the bankrupt is, by section 7, directed to be examined. To this oath the witness declined to be sworn unless there was added the proviso, "Reserving, however, the right to claim any lawful privilege as against or in relation to any question which may arise upon any examination." Such proviso was unnecessary. The mere administering of an oath cannot deprive a witness of any lawful privilege he has. Non constat that he will be asked any question calling for exercise of this privilege. If such necessity arises, the mere fact that he was previously sworn will not estop or prevent him from demanding the protection guarantied him by the constitution. The certificate will therefore be returned to the referee, with instructions that the witness is not bound to answer the incriminating questions, but was bound to take the oath submitted by:the referee. To which action of the court counsel for the trustee excepts, and at his request an exception is noted.
95 FEOERAt RlJJPORTER.
FRANCK et a'1. v. FR'ANK OHICORYCO. (Circuit Court, E. D. Wisconsin.
AND rCOLOR OF PACKAGES.
(]omplliinant is the American branch' of a Germ!ln. firm that manufacture!! substitute for ,c()Jfee .frOJ;n chicory, that 4lU1 had an extensive sale in the United Statesfot manY.y.ears. Its goods hll.ve for 25 years been put 'up in pad,ages of cylindrical form, inclosed in red paper, labeled as '''Franck'' chicory, and familiarly known as "Franck's Red Roll Chicory." In1S9:;l defendant cormnenced ;t\}e manufacture and sale of a similar article under the name of "Frank Owcory," put up. in packages of the same form, color, and general appearance as complainant's, and which were evidently intended to, and did in fact, deceive purchasers familiar with complainant's goods. .Defendant ,afterwards omitted the name "Fran.k" from some of its packages; but continued to use the· same form and color of package and general design of label. Held, that the use of such packages, even as changed, was a continuance of the deception, which constituted unfair. competition, and entitled ,complainant to an.injunction restraining defendant from using not only the word "Frank," but also red wrappers or labels substantially identical in color with complainant's.l
This was a suit in equity for an accounting and an injunction against 'the use ofeomplainants1 trade name and unfair competition by imitation' of complainants' packages. TM foll<;lwingare complainants' exhibits:
, "" 1 , ·
, ···. ,:' :. · :'-I ',:' 1 .." . _ ;,':':, '
As ,to ·unrair.,competitioJ:!. in trade; $ee J:!.ote to Scheuer v., Muller,! 20 C. O. A. 165, and, supplementary note to Lare v. Harper, b. O. A. 376.