
    In re HARK et al.
    (District Court, E. D. Pennsylvania.
    April 14, 1905.)
    No. 2,065.
    Bankruptcy — Production of Books of Account — Claim of Privilege.
    A bankrupt who pleads bis constitutional privilege as a reason for not producing bis books of account, claiming that they contain evidence which may incriminate him, must bring such books before the court or referee for the determination of the question whether his plea is well founded on fact, and that the books may be used for such necessary and proper purposes as are not inconsistent with the protection of his rights.
    [Ed. Note. — For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 1066, 1067.]
    In Bankruptcy. On certificate from referee.
    Harry S. Mesirov, for petitioners.
    Henry N. Wessel, for Harry Hark, alleged bankrupt.
   HOLLAND, District Judge.

Harry A. Hark, one of the partners of the firm of Hark Bros., bankrupts, was subpcenaed and 'appeared before the special referee. The referee, at a meeting held on November 14, 1904, made the following order:

“After bearing testimony on November 10 and November 14, 1904, and upon motion of Harry S. Mesirov, Esq., attorney for tbe receiver and petitioning creditor, tbe referee orders and directs Harry A. Hark, one of tbe bankrupts, to produce all of tbe books and records of the business of Hark Bros., bankrupts, referred to by him in bis testimony of November 10 and November 14, 1904, at an adjourned meeting to be held before the referee at 2:30 p. m. on November 14, 1904.”

Harry A. Hark appeared at this adjourned meeting, but refused to produce his books and papers, and subsequently filed an answer, and then a supplemental answer, in the latter of which he says:

“If I am obliged to turn tbe said books over to tbe receiver, I will thus be obliged to furnish evidence which will put me in jeopardy of my liberty, and might lead a jury to convict me of crime.”

The referee reports that there is no evidence before him to show that there is anything contained in the books tending to incriminate the bankrupts, and further calls attention to the fact that his order of November 14, 1904, was not an order to turn the books over to the receiver, but simply to produce them before the referee. This court decided (In re Hess, 134 Fed. 109) that:

“Where a bankrupt pleads bis constitutional privilege against a production of books of accounts alleged to contain incriminating evidence, be should be required to bring such books and papers either before tbe court or referee in bankruptcy for determination of tbe question whether tbe plea is well founded in fact, and for tbe making of an order for tbe protection of the bankrupt from tbe discovery of such evidence, and, if possible, to enable tbe trustee to obtain other necessary information from such books.”

There is nothing in the evidence produced before the referee to show that these books contain incriminating evidence, other than the allegation of the bankrupts in their answer. The order to produce them before him should have been complied with, and then the question as to whether this plea of the bankrupts is well founded could be determined by the referee.

As to the question of allowing the bankrupts to be represented by counsel, the referee reports that this privilege was not refused them at the hearing, and it is to be assumed that the referee will allow them to be represented by their counsel at any further hearing that may take place.

The bankrupts complain that they were not permitted to correct some erroneous statements made by them, although an examination of the record shows that corrections were allowed. A witness should always be permitted to make a correction in any statement theretofore made, and the reason for the correction, of course, can be taken into consideration by the referee in passing upon the credibility of the witness.

It is therefore ordered, adjudged, and decreed that the matter be referred back to the referee, David W. Amram, Esq., and that the said Harry A. Hark be, and is hereby, directed to comply with. the referee’s order of November 14, 1904, to wit, to produce before him, the said David W. Amram, referee, all of the books and records of the business of Hark Bros., bankrupts, referred to by him, the said Harry A. Hark, in his testimony of November 10 and November 14, 1904; the said books and records to be produced at a meeting to be fixed by the said David W. Amram, referee, and notice to be served upon the said Harry A. Hark.  