ance, but claims that the perils of the harbor include all liability to peril from injuries which might occur while navigating the harbor from any causes of possible danger upon the piers. An injury caused by an explosion of dynamite is not ordinarily covered by a policy of fire insurance. Everett v. London Assurance, 19 C. B. (N. S.) 126. The expression "perils of the sea," as used in marine policies, means perils of a marine nature. Thames Ins. Co. v. Hamilton, 12 App. C. 484; The G. R. Booth, 171 U. S. 450, 19 Sup. Ct. 9, 43 L. Ed. 234. The cases are somewhat in conflict upon the question whether cases of explosions on vessels are covered by a marine policy which insures against "perils of the seas, rivers," etc., and "all other perils, losses and misfortunes." In some cases it is held that such a policy covers the case of the explosion of a vessel's boilers. Citizens' Ins. Co. v. Glasgow, 9 Mo. 411; West India Tel. Co. v. Home, etc., Co., L. R. 6 Q. B. D. 51. Cases holding the contrary view are Thames Co. v. Hamilton, 12 App. C. 484; Miller v. California Ins. Co., 76 Cal. 145, 18 Pac. 155, 9 Am. St. Rep. 184; The G. R. Booth, 171 U. S. 450, 19 Sup. Ct. 9, 43 L. Ed. 234. The policy in suit simply insures against perils of the harbor. It does not add "all other perils and losses," as in the case of many policies. It also affirmatively exempts losses caused by boiler explosions, and warrants against the carriage of gunpowder or other explosives. If the boiler of the lighter had exploded, obviously no recovery could be had upon this policy. If the dynamite which exploded had been in course of transportation on the lighter, no recovery could be had. Suppose the lighter had been injured by a projectile fired from a cannon situated a mile inland from the shore of the harbor, or that a steam boiler on shore had exploded and a part of it had fallen upon the lighter, could it be claimed that such an injury was a peril of the harbor within the meaning of the policy? I think not. Yet such an injury seems to be quite analogous to that upon which this suit is based. Obviously the insurance company did not intend to be responsible for any explosion on board. It inserted in the policy provisions exempting itself from such liability, and the insurer, by accepting the policy with such provisions, agreed to them. It seems to me that the inference is still stronger that injuries occurring from such explosions which have taken place away from the lighter and especially on the land were not covered by the policy. My conclusion is that there should be a decree for the respondent. DROVERS' DEPOSIT NAT. BANK v. TICHENOR. (District Court, E. D. Wisconsin. February 8, 1913.) 1. REMOVAL OF CAUSES (8 45*)-DIVERSITY OF CITIZENSHIP-PARTIES ENTITLED A cause is not removable from a state court under section 28 of the [Ed. Note. For other cases, see Removal of Causes, Cent. Dig. § 89; 2. REMOVAL OF CAUSES (§ 48*)-SEPARABLE CONTROVERSY-PARTIES ENTITLED There can be no separable controversy which will authorize the removal [Ed. Note. For other cases, see Removal of Causes, Cent. Dig. § 94; 8. REMOVAL OF CAUSES (8 45*)-SEPARABLE CONTROVERSY-PARTIES ENTITLED Judicial Code (Act March 3, 1911, c. 231, § 28, cl. 3, 36 Stat. 1094 [U. [Ed. Note. For other cases, see Removal of Causes, Cent. Dig. § 89; At Law. Action by the Drovers' Deposit National Bank against See, also, 200 Fed. 318. Miller, Mack & Fairchild, of Milwaukee, Wis., and N. W. Evans, O'Bryan & Marshall, of Chicago, Ill., and McGee & Jeger, of Mil- GEIGER, District Judge. [1] The plaintiff commenced this action For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes The defendant, however, urges that removal was sought, and is sustainable under the third clause of such section, providing that in any suit in which "there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them-then either one or more of the defendants actually interested in such controversy may remove," etc. To this, there are two answers, each as elementary and conclusive as the other: [2] First. The clause relates to what are known as separable controversies. Counsel urges that because, upon the instrument of guaranty which is the basis of the single cause of action against the defendant, a like cause of action might exist against the defendant's co-signers who are not parties to the action, a separable controversy exists between the defendant and plaintiff. But this is fundamentally repugnant to the idea of a "separable controversy" in the removal of causes. Such controversy must arise upon the pleadings between one or more parties on the one side and one or more of several parties on the other; as distinguished from some other controversy also arising in the action upon the pleadings, between such party or parties on the one side and other additional parties on the other side. There can be no "separable controversy" in an action where there is a single plaintiff and a single defendant. [3] Second. The clause contains by implication the restrictive provisions of clauses 2 and 4, respecting nonresidence of the defendant seeking to remove the cause. Thurber v. Miller, 67 Fed. 371, 14 C. C. A. 432; Wichita National Bank v. Smith, 72 Fed. 568, 19 C. C. A. 42. The motion to remand is granted, and an order may be entered accordingly. In re PODOLIN et al. (District Court, E. D. Pennsylvania. March 1, 1913.) BANKRUPTCY (§ 28*)-SCHEDULES-DUTY TO FILE-INCRIMINATING STATE MENTS. Bankrupts, though under indictment for misuse of the mails, could not lawfully refuse to file any schedules of assets and liabilities on the ground that to do so would tend to incriminate them, but were bound to file a schedule which complied with the act up to the point where the court could see that further obedience would violate their constitutional privilege. [Ed. Note. For other cases, see Bankruptcy, Cent. Dig. § 27; Dec. Dig. § 28.*] In Bankruptcy. In the matter of bankruptcy proceedings of Israel Podolin and others individually and trading as the Franklin Suit & Skirt Company. On certificate of referee to review a ruling requiring the bankrupts to file schedules. Affirmed. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes The following is the certificate of Richard S. Hunter, referee: Sur Application for Order on Bankrupts to File Schedules. The bankrupts have been indicted for using the mail with intent to defraud, and their trial is set for September. They now, under advice of counsel, refuse to file their schedules in bankruptcy on the ground that their schedules might tend to incriminate them. The petitioning creditor asks the referee to order the bankrupts to file their schedules. The Constitution of the United States provides in the fifth amendment that no person "shall be compelled in any criminal case to be a witness against himself." This clause means, not only that a person shall not be compelled to be a witness against himself in a criminal proceeding, but its object is to insure that a person shall not be compelled, when acting as a witness in any investigation to give testimony that may tend to show that he himself has committed a crime. Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, 35 L. Ed. 1110. The provision in the Bankruptcy Act of 1898 (Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418]), requiring the bankrupt to testify before the referee, but providing that no testimony then given by him shall be offered in evidence against him in any criminal proceeding, does not amount to an exemption from prosecution. Burrell v. Montana, 194 U. S. 572, 24 Sup. Ct. 787, 48 L. Ed. 1122. It has been repeatedly held, and has now been settled by the Supreme Court, that books of account which the bankrupt claims contain matter which might tend to incriminate him must, nevertheless, be delivered to his trustee. In the matter of Harris, 26 Am. Bankr. Rep. 302, 221 U. S. 274, 31 Sup. Ct. 557, 55 L. Ed. 732. "The question," says Mr. Justice Holmes, "is not of testimony, but of surrender, not of compelling a bankrupt to be a witness against himself in a criminal case, present or future, but of compelling him to yield possession of property that he no longer is entitled to keep. That is one of the misfortunes of bankruptcy if it follows crime. The right not to be compelled to be a witness against oneself is not a right to appropriate property that may tell one's story." It is clear, then, that a bankrupt cannot be compelled to testify against himself in a criminal proceeding; and it is also clear he cannot withhold from his trustee books and papers already in existence upon the ground that they may incriminate him. Is he compellable to file schedules which may incriminate him? Under the seventh section of the act of 1898, "the bankrupt shall prepare, make oath to and file in court within ten days after the adjudication a schedule of his property, setting forth in full its amount, location and value, and a list of his creditors." No direct penalty is affixed by the act to the failure on the bankrupt's part to file his schedules. Unless he loyally assists his trustee in all proper ways, he cannot obtain his discharge. In case the bankrupt is absent or cannot be found, the petitioning creditor, under general order 9 (18 Sup. Ct. v), must file a schedule, giving the names and places of residence of the creditors. Under section 39 it is the duty of the referee to prepare and file the schedules of property and list of creditors required to be filed by the bankrupt, or cause the same to be done when the bankrupt fails, refuses, or neglects to do so. It is obvious from these clauses and orders that the law contemplated that in many cases the bankrupt would not or could not file his schedules. It is, of course, his duty to do so, and for a wanton refusal so to do he is liable, in the discretion of the court, to the proper penalty for contempt. In the present case the bankrupts are actually under indictment, and in the proceedings against them as alleged bankrupts the present referee has decided that they have committed perjury of the grossest kind. No doubt the filing of schedules in the usual form might incriminate them in many ways. These schedules, if filed, are considered as voluntarily offered. Commonwealth v. Ensign, 40 Pa. Super. Ct. 157, 22 Am. Bankr. Rep. 797. Judge Rice in this case calls special attention to the fact that the Bankruptcy Act attaches no penalty to the bankrupt's failure to file schedules, and that it did not appear at the time they filed them that they were under arrest or had been charged with a criminal offense. The referee concludes that the bankrupts need not file schedules which will incriminate them. Are they, therefore, exempt from the duty of filing any schedules? It is evident that very many of the particulars which are embraced in the schedules can be given by them without self-incrimination. They should furnish a list of creditors, a list of property, and a list of books held by the firm, and in general they should file schedules under the form required by the act, and give all information they can to their trustee up to the point at which it incriminates them. Schedules so prepared may be meager and unsatisfactory, but the bankrupts will then have done what is required by the act up to the point where they can plead their constitutional privilege. The referee orders that the bankrupts shall file their schedules in bankruptcy. Whenever particular information required under these schedules is such as may incriminate them, they must refuse to furnish it upon the specific ground that it so incriminates them. J. Howard Reber, of Philadelphia, Pa., for petitioning creditors. Clinton O. Mayer, of Philadelphia, Pa., for bankrupts. J. B. MCPHERSON, Circuit Judge (specially presiding). As a general proposition, the referee's ruling that the bankrupts must file schedules, so far as they can do so without incriminating themselves, is obviously correct. But, until an effort is made to comply with his order, it is practically impossible for the court to decide whether a particular fact is to be included or omitted. To decide that a bankrupt is not bound to put his hand to a declaration of fact that may incriminate him, does not advance a particular dispute very much. What is required is an effort in good faith by the bankrupt to file a schedule that obeys the act up to the point where the court can see that further obedience would violate the constitutional protection. When the bankrupts present such schedules as they can conscientiously declare to be a compliance with the order (saving their constitutional rights), the referee will then be able either to order them to do specific acts or to approve the refusal to do them; and in either event the District Court will then have something definite to rule upon. Until such a situation is presented, the discussion is almost wholly academic. The order of the referee under date of July 18, 1912, is affirmed; and it is now ordered that the bankrupts file their schedules as directed by the referee on or before March 20, 1913. In re CO-OPERATIVE KNITTING MILLS. (District Court, E. D. New York. February 5, 1913.) 1. BANKRUPTCY (§ 328*)—CLAIMS-FILING-TIME-NUNC PRO TUNC. An order may not be made nunc pro tunc in order to bring the filing of a claim in bankruptcy, not within the year from the date of the adjudication, within the statutory period. [Ed. Note. For other cases, see Bankruptcy, Cent. Dig. § 518; Dec. Dig. 328.*] *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |