petitioner was not represented by counsel at the hearing, though advised of his right to be so represented, and made no objection to the proceedings there had. The warrant for arrest set out two grounds as justifying his deportation: (1) That he had been convicted of or had admitted committing a felony or a misdemeanor involving moral turpitude; and (2) that he had been induced or solicited to migrate to this country by an offer or promise of employment or in consequence of an oral agreement to perform unskilled labor in this country. The facts developed before the immigration officer, as shown by the return to the writ, were without conflict, being derived entirely from the admissions of petitioner on his examination before the officer on the hearing. His testimony as to the first charge was that some two years before he left Greece he was tried and convicted at Tripoli of a felonious assault and sentenced to four months' imprisonment; that his assault consisted of his act in striking in a quarrel another Greek with a large piece of firewood. At the same time the brother of petitioner stabbed the same person with a knife. The assault, as well as the conviction, was admitted by petitioner. His testimony on the hearing in relation to the second charge was that he left Greece under these circumstances. The owner of a shoe shining establishment in Birmingham, Ala., agreed to employ him in his establishment if he came to America, and pay him $20 per month, to lend him the money needed for his trip, taking as security for the loan a mortgage on petitioner's land in Greece, the loan to be repaid from his wages when employed. The lender and the petitioner came to this country on the same steamship, and petitioner came to Birmingham and went to work for the lender, continued in his service for a year, and out of his wages repaid the loan. Objection was made to the sufficiency of the warrant, for the first time, upon the hearing of the petition, upon the ground that it did not set out the charges, justifying deportation, with sufficient certainty. Possibly the first ground relied on by the United States is insufficiently alleged in the warrant, in that it does not show what the felony or misdemeanor relied upon for deportation was or when or where committed, and consequently does not identify the offense relied on so as to enable petitioner to meet the charge. If petitioner had committed more than one offense, the warrant would not apprise him which one was relied on by the government. U. S. v. Sibray (C. C.) 178 Fed. 150. It is also a question of doubt under the evidence whether the assault which petitioner admits having committed and been convicted of constituted a felony within the meaning of section 2 of the immigration act of February 20, 1907 (Act Feb. 20, 1907, c. 1134, 34 Stat. 898 [U. S. Comp. St. Supp. 1909, p. 447]). It certainly does not constitute a misdemeanor involving moral turpitude. It is not necessary to decide either of these questions, in view of the patent sufficiency both in matter of averment and proof of the second ground for deportation set out in the warrant, viz., that petitioner was a contract laborer, within the meaning of the second section of the act. The warrant charges that he was induced or solicited to mi grate to this country by offers or promises of employment and in consequence of an agreement to perform labor in this country. The petitioner was fully apprised by the warrant that his deportation was sought by the government because of a promise made to him or an agreement made with him to perform labor in this country, which induced his immigration. There could be no room for doubt on the part of petitioner as to the identity of the transaction relied on by the government, since he could have received but one such promise and made but one such agreement. The warrant was sufficient as to this charge, certainly when unobjected to on the hearing and criticized for the first time after deportation was ordered and collaterally upon a writ of habeas corpus. The warrant charges each of the elements of the ground of deportation relied on, and is not void. The evidence shows without conflict that the petitioner was within the excluded class, called "contract laborers." Upon a promise to employ him upon his arrival in this country at stipulated wages in a definite occupation, made by one who advanced him money for his passage, secured by a mortgage on his property, and accompanied him on his journey, he came to this country, went to work for such person at the stipulated wages and at the designated occupation, repaid the advance out of his wages, and continued in the employment of the person who made the promise and advance for a year. The writ is discharged, and the petitioner is remanded to the custody of the sheriff to await the execution of the warrant of deportation. In the event of an appeal from this order discharging the writ, the petitioner may be enlarged pending the appeal upon executing a recognizance with sufficient surety in the sum of $500 for appearance to answer the judgment of the appellate court. Rev. St. § 765 (U. S. Comp. St. 1901, p. 596); Supreme Court Rule 34 (6 Sup. Ct. iii); In re McKane (C. C.) 61 Fed. 205. In re PINSON & CO. et al. (District Court, N. D. Alabama, S. D. August 6, 1910.) 1. BANKRUPTCY (§ 58*)-ACTS OF BANKRUPTCY-Preference. Where an alleged bankrupt, while insolvent and within four months prior to the filing of the petition, paid to his wife in settlement of an alleged indebtedness the proceeds of certain fire insurance policies received in settlement of a loss on his stock of goods, he thereby committed an act of bankruptcy. [Ed. Note. For other cases, see Bankruptcy, Cent. Dig. §§ 78, 79; Dec. Dig. § 58.*] 2. BANKRUPTCY (§ 69*)-PARTNERSHIP-ESSENTIALS TO ADJUDICATION—"CONTINUANCE OF PARTNERSHIP." Bankr. Act July 1, 1898, c. 541, § 5, subd. “a," 30 Stat. 548 (U. S. Comp. St. 1901, p. 3424), authorizes adjudication of a partnership during the continuance of the partnership business, or after its dissolution and before final settlement. Held, that the continuance of a partnership within such section meant its actual status as a firm, as distinguished from a •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes status created by estoppel against a partner, and that it was therefore essential that the partnership should exist as such, or that its affairs should be still unsettled at the time of the filing of a petition, in order to subject it to adjudication. [Ed. Note. For other cases, see Bankruptcy, Cent. Dig. § 51; Dec. Dig. § 69.*] 3. BANKRUPTCY (§ 69*)—Dissolved PartnERSHIP ESTOPPEL. The bankruptcy law provides no method of distribution by which creditors of a partnership without notice of dissolution and who could thereby claim an estoppel would alone participate; the proper method in such a situation being to administer the property as individual property, set aside the bankrupt's exemption, and remit the creditors entitled to claim an estoppel to the state court, to subject the property to their claims. [Ed. Note. For other cases, see Bankruptcy, Cent. Dig. § 52; Dec. Dig. § 69.*] 4. BANKRUPTCY (§ 69*)-PARTNERSHIP-ADJUDICATION—"UNSETTLED AFFAIRS." The affairs of a partnership are "unsettled" so as to subject it to bankruptcy adjudication, as authorized by Bankr. Act July 1, 1898, c. 541, § 5, subd. "a," 30 Stat. 548 (U. S. Comp. St. 1901, p. 3424), so long as the partnership debts are unpaid. [Ed. Note. For other cases, see Bankruptcy, Cent. Dig. §§ 51, 52; Dec. Dig. 69.*] 5. BANKRUPTCY (§ 69*)-PARTNERSHIP-DEBTS-"FIRM DEBTS." Debts which are binding on partners only by estoppel as to creditors without notice of dissolution are not "firm debts," the nonpayment of which will authorize bankruptcy adjudication against the firm. [Ed. Note.-For other cases, see Bankruptcy, Dec. Dig. § 69.* For other definitions, see Words and Phrases, vol. 2, pp. 1864-1886; vol. 8, p. 7628.] 6. BANKRUPTCY (§ 74*)-Partnership-DISSOLUTION-UNPAID DEBTS. Where, at the time a bankruptcy petition was filed against a dissolved partnership, its outstanding indebtedness, excluding such as was created subsequent to the dissolution and which became that of the partnership only by estoppel in favor of such creditors as had no notice of its dissolution, was not shown to amount to $1,000, the adjudication would be de nied. [Ed. Note.-For other cases, see Bankruptcy, Dec. Dig. § 74.*] In the matter of M. A. Pinson and Pinson & Co., alleged bankrupts. On petition for adjudication. Granted as to Pinson, and denied as to the firm. Thompson & Thompson, for petitioning creditors. GRUBB, District Judge. This cause comes on for hearing upon the prayer of the petition for an adjudication. The evidence is without conflict that the bankrupt, M. A. Pinson, within four months of the filing of the petition committed an act of bankruptcy, in that he paid to his wife, in settlement of an alleged indebtedness and while he was insolvent, the proceeds of certain fire insurance policies, the indemnity for a loss on his stock of goods, and an adjudication against him is granted. The inquiry as to whether the firm of Pinson & Co. is subject to adjudication for the same act of bankruptcy depends upon whether, For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes up to the time of the filing of the petition in bankruptcy, there had been a continuation of the partnership business, or had been no final settlement of its affairs. The evidence shows that the firm was dissolved as between the partners in December, 1909. One of the partners, M. A. Pinson, bought out his partner and continued the business until the petition was filed. The petitioning creditors contend that, in the absence of notice of the dissolution, the bankrupt firm is estopped to deny on the hearing, as against subsequent creditors having no actual notice, the continued existence of the firm up to the time of the filing of the petition in bankruptcy, and that an adjudication of the firm should follow, though the partnership had been dissolved in December and its affairs so settled up that less than $1,000 of firm indebtedness remained outstanding at the time the petition was filed. They also contend that debts created by the continuing member of the firm after its dissolution were by estoppel firm debts. The bankruptcy act (Act July 1, 1898, c. 541, § 5, subd. “a,” 30 Stat. 548 [U. S. Comp. St. 1901, p. 3424]), provides that "a partnership, during the continuation of the partnership business or after its dissolution and before the final settlement thereof, may be adjudged a bankrupt." It is essential that (1) the existence of the partnership or (2) the fact that its affairs are still unsettled at the time of the filing of the petition be shown by the petitioning creditors. (1) The existence of the partnership within the meaning of this section is its actual status as distinguished from a status created by estoppel against the former partner. If it has been dissolved by the partners inter sese before the filing of the petition, it is not thereafter an existing partnership, and the proceedings in bankruptcy cannot be said to have been instituted "during the continuation of the partnership business," nor can debts created thereafter by the continuing partner be considered partnership debts. The jurisdiction of the bankruptcy court to adjudicate and administer attaches only upon a showing of an actually existing partnership, constituting a legal entity at the time of the filing of the petition. In re Kenney (D. C.) 97 Fed. 554; Lott v. Young, 109 Fed. 798, 48 C. C. A. 654; Jones v. Burnham, 138 Fed. 986, 71 C. C. A. 240; In re Beckwith (D. C.) 130 Fed. 475; Buffalo Mining Co. v. Lewisburg Dairy Co. (D. C.) 20 Am. Bankr. Rep. 279, 159 Fed. 319. It may well be that some of the creditors whose claims were created after dissolution had actual notice thereof, while others had not. The estoppel would therefore work in favor of a part only of such subsequent creditors. The administration of the partnership estate in bankruptcy, however, is single and for the benefit of all general and unsecured creditors equally; and all such creditors in the event of a partnership adjudication would be entitled to treat the property of the former partnership as partnership assets, if any of them had that right. In that event, the continuing member could not claim the former partnership assets exempt as against any of his creditors. This result would be manifestly unfair to the bankrupt, as to those creditors having actual notice of the dissolution of the partnership, in that it would deprive him of the right to claim as exempt property which, as to such creditors, would be his individual property and so subject to his claim of exemption. The bankrupt law provides no method of distribution in which creditors without notice and who could thereby claim the estoppel would alone participate. The proper method to protect such creditors and at the same time do the bankrupt no injustice would seem to be for the bankruptcy court to administer the property as individual property, set aside the bankrupt's exemption in it, remitting those creditors, who alone have the right to claim the estoppel, to the state court to subject such property to their claims as in the case of creditors who hold the bankrupt's waiver of exemption. (2) The act also provides for the adjudication of a partnership, so long as its affairs are unsettled. If there are outstanding firm debts at the time of the filing of the petition in the requisite amount, a proper case is made for adjudication, the other elements being present, though the partnership has long ceased to do business; otherwise, not. The partnership affairs are unsettled within the meaning of this section so long as partnership debts are left unpaid. Debts which are binding on the partners only by estoppel as to creditors without notice of dissolution are not firm debts. The administration might be of no avail if there were no assets, partnership or individual, for distribution; but the jurisdiction of the court to adjudicate would exist nevertheless, and it would be properly exercised for the purpose of affording opportunity to the firm creditors, through the appointment of a trustee, to discover such assets. Holmes v. Baker & Hamilton, 20 Am. Bankr. Rep. 252, 160 Fed. 922, 88 C. C. A. 104. As the proof fails to show that the petition was filed during the continuation of the partnership business, as herein defined, or that the outstanding indebtedness at that time, excluding such as was created subsequent to the dissolution and which became that of the partnership only by estoppel in favor of such creditors as had no notice of its dissolution amounted to $1,000, the adjudication of the partnership is denied. PENNSYLVANIA STEEL CO. et al. v. NEW YORK CITY RY. CO. et al. (Circuit Court, S. D. New York. August 13, 1910.) Nos. 2-9, 2-33, 2-33, 3-37. RECEIVERS (8 150*)-EXPENDITURES-PETITION TO ENFORCE PAYMENT-ÅTTORNEY'S FEES. Franchise taxes having been assessed against various street railway companies leased to the M. company, the latter brought certiorari to correct the same as exorbitant in the name of each lessor; the lessee paying all the legal expenses and disbursements in connection therewith. A receiver having been appointed for the M. company, he continued such proceedings until notice that the lessor should take charge of the same. which they did by substituted attorneys. Notwithstanding this, the receiver and their counsel continued negotiations which finally resulted in a basis of settlement. Held that, pending determination of the question whether the lessors or the M. Company was liable for such taxes, petitions to require the receiver to pay the legal expenses and disbursements incurred by the lessors after taking charge of the proceedings pursuant to the notice would be denied. [Ed. Note. For other cases, see Receivers, Dec. Dig. § 150.*] *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |