IN RE FERGUSON.
dismissed without costs, and with a specific statement that the dismissal is made by reason of his minority. See Lovell v. Beauchamp  App. Cas. 607. As was observed by Lord Ashbourne, at page 614:
"It would be most unfortunate if the adult members of a partnership could evade liability because one of the partners was a minor. If this was laid down, minors would be found in many partnerships."
It is true that section 5, cI. h, of the bankrupt act, provides that, if one or more, but not all, of the partners are adjudged bankrupt, the partnership property shall not be administered in bankruptcy, but by the nonbankrupt partner. This provision, however, seems to me not intended to apply to a case in which the exempt partner escapes only because of his minority. To permit him alone by reason of his minority to settle the partnership business would be absurd. Decree in accordance with opinion.
In re FERGUSON. (DIstrict Court, S. D. New York.· May 16, 1899.) 1.
BANKRUPTCy-AcTS OF BANKRUPTCy-SUFFERUW LEGAL PROCESS.
Bankruptcy Act 181)8, § 3, c1. a, providing that it shall be an act or bankruptcy if an insolvent debtor shall suffer a creditor to obtain a preference through legal proceedings, and not vacate or discharge the same at least five days before sale of the property affected, does not apply to liens acquired by legal proceedings more than four months before the filing of the petition in bankruptcy, and which therefore will not be dissolved by an adjudication. 'Where executions on confessed judgments were issued and levied on goods in the defendant's store, for the apparent purpose of forestalling such action on the part of other creditors, and after the levy the sheriff was instructed by the attorney for the judgment creditors to "do nothing until further ordered," and the keeper who had been placed in charge was withdrawn, and about a year later other executions on the same judgments were issued and levied on the same property, held, that the earlier executions had become dormant, that the only valid lien was under the laterexecutions, and that the defendant's failure to discharge the preferenCE acquired by such lien, within five da;ys before the sale, was an act of bankruptcy, on which, a petition being filed Within the next foul' months, an adjudication against him be made.
In Bankruptcy. David B. Ackerman, for petitioning creditors. Roger M. Sherman, for the bankrupt. BROWN, District Judge. On the 12th day of April, 1899, a petition was filed by creditors of George D. Ferguson, seeking to have him adjudged a bankrupt on the ground that, being insolvent, he had not vacated a preference acquired by sheriff's levy on his stock of goods five days before April 13, 1899, on which daJ" the sale, as advertised, was to take place. Bankruptcy Act, § 3, cl. a, subd. 3. The debtor appeared and answered, denying only the act of bankruptcy alleged.
95 F;EDERAL ll.EPORTER·
.,T!;te evidfqceishowsJhat,the was in. business at Mt. Ver.GountYi that pn the of August, 1897, six judgments, were against him on confession, in favor of six different creditors, aniounting in the aggregate to $10,552.16; that on March 13, 1898, exec1Jtions were issued to the sheriff of that county uponfO'ur of those judgments amounting to about $8,900, under which the sheriff made a levy on goods in tl;le defendant's store and put in charge an employe of thedef,endant. A few days afterwards the .sherjffWas directed. by the attorney, who, is the same in all the judgments 1l;nd executions, let tM property remain there and do nothing untIl, further ordered." Soon after the issl1e of these executions, a judgment was rec()vered against the defendant ina suit by one Slllith, on which an execution was issued, and a stay thereon obtained bithe defeJ.ldant shortly before April 1, 1898,with an undertaking on appeal, which judgment was,afterward;spaid; and the deputy who had all the executions testifies, that having understood that the stay referred to all of the execution!!, he "withdrew the keeper" on April 1, 1898; that nothing further was done under said executions; that on February 8, 1899, one of the petitioning creditors obtained a judgment against the debtor in New York county for $6,802.60, and that on the 10th of· February, 1899, executions were again issued by the same the fourjudgrp.ents first mentioned, and also upon the two other judgments first above mentioned; that on the receipt of the last six. exeeutions, the sheriff requested firstissued, which the the attorney to withdraw the four attorney dedined to do; that a levy was again made under the six executions on the same goods on the following day, under which a sale was afterwards advertised for April 13th, as above stated. It was admitted that the goods levied upon under each levy were much less in value than the amount of the four executions first issued; so that if at the time of the issuing of the six executions in February, 1899, the levy under the four. executions issued in :;\farch, 1898, were still valid, no benefit could accrue to the two executions first issued in February, 1899, nor could, any "preference" be thereby acquired. . For the petitioning creditors it is contended, first, that the executions issued in March, 1898, had become dormant, by the intervention of the attorney, directing no :further procl:!edings thereon mitil further ordered; and second, that even if they were not dormant, the failure of the debtor to discharge a preference acquired by thoseexecutiolls five days before the day of sale, was an act of bankruptcy within subdivision 3, cl. a, of section 3. 1. As to the last point, although the case would, be literally within the language ()f subdivision 3, it does not,! think, lie within itf! intent. Subdivisi()n 3 should be construed in connection with the provisions of. sectIon 67. 'J'hat section . provides that all "levies * . * * at any time within four months prior to filing the petition shall be deemed null and void in case the. debtor is adjudged a bankrupt." If the levy March, .1898, was valid, and remained a continuous lien, assuming that the lien the preference gained thereby being long before the bankruptcy act was pfissed.
and more than fpur months prior to the filing of the petition it could not now be disturbed. The act of bankruptcy referred to in subdivi· sion 3, cI. a, of section 3, must I think be limited to such acts as by construction of law and in the view of the bankruptcy act, work an injury to other creditors by securing to them a preference which the bankruptcy law is designed to prevent. The language of this sub· division shows this intent. This cannot apply, therefore, to such levies and .liens as are acquired long prior to the passage of the act and more than four months prior to the petition, which the bankrupt act does not vacate or disallow. Such a lien the debtor cannot be required to satisfy or vacate. 2. A careful consideration of the facts and circumstances proved leaves no doubt in my mind, however, that the levies and the four ex· ecutions of March, 1898, had become dormant through the instructions of the attorney of the judgment creditors about April 1st, after the Smith judgment was secured, to do nothing till further orders. In the case of Hickok v. Coates, 2 Wend. 419, 422, Savage, C. J., says: '
. "Nor Is It necessary that the delay shoUld have been made with a view to <1efraud anyone. Where the plaintiff in an execution directs an indefinite stay of proceedings, such direction is a supersedeas to the execution 80 far as third persons are concerned."
Many other cases hold the same doctrine in various forms, which is reaffirmed in Sage v. Woodin, 66 N. Y. 578, 584. The fact, more· over, that the executions of March, 1898, and February, 1899, were each time issued just previous to the time when executions in favor of other creditors were to be anticipated on judgments just recovered hy them, and the delay of many months in the issue of the original executions after the confessions of judgment, and the subsequent instructions to do nothing further after Smith's execution was superl'>eded and the appointment and withdrawal of the debtor's employe afford strong presumptive evidence that the issue of as the executions in March, 1898, was designed only as a cover and a shield against other cll;lil;llS. I must find, therefore, that those exe· cutionshad become dormant; and that the only valid sale and lien was under the six executions issued on February 10, 1899. As those exellUtions were issued within less than four months of the filing of the. petition and the bankrupt failed to discharge the preferential lien thereby acquired five days before the day of sale, under the construction given to the present act, I must adjudge the debtor a bankrupt. In. re Reichman, 91 Fed. 624. Ordered accordingly.
95 FEDERAL REPO:RTE!l.
, IYEE YEE CHUNG T. UNITED STATES. (DIstrict Coullt, W. D. Texas. June 30, 1899.) 'While a court, In Its discretion, on appeal, may permit It Chinese laborer arrested on the Texas side of the Rio Grande, and ordered deported by a commissioner, to return to Mexico, where he formerly resided, when satIsfiedof the truth of his claim that he entered the United 'states unintentionally', It will not interfe.e with the order of deportation where It appears more probable from the evidence that his entry was intentionaL
01' CHINESE-CLAIM OF UNINTENTIONAL ENTRY.
W. C. McGown and Wyndham Kemp, for appellant. Beni-yTerrell, U. S. and A. G. Foster, Asst. U. S. Atty. MAXEY, District Judge. This cause is on appeal from the decision of the United States commissioner at EI Paso ordering the deportation of Yee Yee Chung to China. It is admitted by the appellant that he is a Chinese laborer. The purpose of congress, as manifested by the various Chinese exclusion acts, was to effectually prevent the entrance of Chinese laborers into this country. In the case of Wan, Shing v. U. S., 140 U. S. 428, 11 Sup. Ct. 731, decided in 1891, it was said by the supreme court:
"The result of the legislation respecting the Chinese would seem to be this: That no laboJ'ers of that race shall hereafter be permitted to enter the United !States, or even to return after having departed from the country, though they may have previously resided therein and have left with a view of returning, and that all other persons of that race, except those connected with the diplomatic service, .must produce a certificate from the authorities of the Chinese government, or of such other foreign government as they may at the time be subjects of,. showing that they are not laborers, and have the permission o·f that government to enter the United States, which certificate Is to be vlsM by a representative ot the government of the United States."
It is true that, since Wan Shillg v. U. S. was decided, our government has entered into a convention with China (ratified by the president August 22, 1894, and proclaimed December 8, 1894), by the terms of which' registered Chinese laborers may, under certain prescribed conditions, return to China and re-enter the United States. But the provisions of that treaty are inapplicable to this case, as the testimony clearly shows that the appellant has never been a resident of the United States, and he is therefore not embraced within the excepted class of laborers who may return to this country. The question here is one of intention on the part of the appellant, who crossed the Rio Grande river from Juarez, Mexico, to the Anlerican side, and who was arrested by an inspector of customs at the guard house near the river in the city of EI Paso. It is contended by his counsel that the appellant, while seeking a friend in Juarez, Mexico, which is just across the river from EI Paso, Texas, lost his way in the darkness, and wandered unwittingly across the dry bed of the river to the American side, and thus being in the United States by mere accident, and without any purpose or intention of entering the country and violating its laws, he should be permitted to return to Mexico. If the premise of counsel be admitted, it would seem, from a ronsideration of several adjudged cases, that the court would have