in company with the other three persons mentioned by the inspectors; and that he was then on his way to Paducah, Ky., where he had a relative. This account might fairly excite suspicion, but it was not irreconcilable with the supposition that on his return to America he had no clear ground for expecting that he could prove his birth in the United States and establish his identity and right to entrance here, and that he did not intend to rely upon the fact of his birth in the United States. But several persons have been found and produced as witnesses whose veracity is vouched for by their neighbors, who swear to the circumstances of his nativity in San Francisco and his going to China when quite young, all as stated by him. One of these states the name of the street in San Francisco where the father lived and the respondent was born, and the month and year of the event, and he then knew the father and son; that he (the witness) afterwards saw the respondent in China when the latter was 10 years old, and now recognizes him as the same person. The identification of the appellant by the witness as the child of their acquaintance in San Francisco is so positive that we cannot feel justified in disregarding it when the consequences are so serious as the possible (and we think probable) expulsion from his native country of one who is entitled to share the birthright of citizenship.

We think the judgment and order of the District Court should be reversed, and the appellant discharged.

(154 Fed. 662.)

PITTSBURGH LAUNDRY SUPPLY CO. et al. v. IMPERIAL LAUNDRY CO. Circuit Court of Appeals, Third Circuit. June 12, 1907.)

No. 351.

1. BANKRUPTCY-ACTS OF BANKRUPTCY-PREFERENCE BY JUDICIAL PROCEEDINGS-VACATION-TIME.

Bankr. Act July 1, 1898, c. 541, § 3a, subd. 3, 30 Stat. 546 [U. S. Comp. St. 1901, p. 3422], makes it an act of bankruptcy for a person while insolvent to have suffered or permitted any creditor to obtain a preference by legal proceedings, and not to have vacated or discharged the same at least five days before a sale or final disposition of any property affected thereby; and section 31 declares that, whenever time is enumerated by days in the act, the number of days shall be computed by excluding the first and including the last. Held that, where property of a bankrupt was advertised for sale under an execution on August 22, 1906, the bankrupt had the entire day of the 17th in which to vacate or discharge the execution, before it would be guilty of an act of bankruptcy.

2. SAME.

An allegation that defendant corporation committed an act of bankruptcy by permitting and confessing judgment to K., for the use of G., which judgment was entered, etc., and on which execution attachment was issued and a fi. fa. issued, and the goods of the defendant levied on by the sheriff, was insufficient.

3. SAME-APPEAL-REVIEW-DISCRETION-AMENDMENTS.

The refusal of a court of bankruptcy to permit the amendment of an involuntary bankruptcy petition, for the purpose of inserting additional alleged acts of bankruptcy, would not be interfered with on appeal, unless abuse of discretion was shown.

Appeal from the District Court of the United States for the Western District of Pennsylvania.

A. Y. Smith, for appellant.

Mr. Moore, for appellee.

Argued before DALLAS and GRAY, Circuit Judges, and HOLLAND, District Judge.

GRAY, Circuit Judge. This is an appeal from the decree of the District Court for the western district of Pennsylvania, in bankruptcy, dismissing the petition of the appellants, as creditors of the Imperial Laundry Company, the appellee, to have the said company adjudicated a bankrupt.

On August 17, 1906, at eleven o'clock a. m., the said creditors' petition, in duplicate, was filed, stating claims amounting in the aggregate to $512.45, and alleging that the Imperial Laundry Company, a corporation of the state of Pennsylvania, having its principal place of business in the district aforesaid and engaged principally in mercantile pursuits, owed debts to the amount of one thousand dollars, was insolvent, and that within four months next preceding the date of the petition, committed an act of bankruptcy, in that it did theretofore, to wit, on the 15th day of August, A. D. 1906, while insolvent, suffer and permit certain creditors to obtain a preference through legal proceedings, and in not having, at least five days before a sale or final disposition of its property, affected by said preference, vacated or discharged the same; the specification being that, on said August 15, 1906, a certain creditor of said Imperial Laundry Company, viz., Arbuthnot Stephenson & Co., obtained judgment against said company for the sum of $114; and that on the 16th day of August, 1906, execution was issued by said creditor on said judgment, and levy was made by the constable on the goods and machinery and the property of the said bankrupt, and that the same was advertised for sale on the 22d day of August, 1906, at o'clock, and it was alleged that the said bankrupt has not vacated or discharged said sale, or the preference that would be obtained thereby, at least five days before said sale.

It is further alleged:

"That the said laundry company also committed an act of bankruptcy, by permitting and confessing judgment to H. W. Kiskadden, for use of Isaac Guckenheimer, which said judgment is entered of record in the common pleas court No. 1 of Allegheny county, at D. S. B. No. 205 September term, 1906, on which said judgment execution attachment was issued at No. 549 September term, 1906, and fi. fa. issued at No. 111 September term, 1906, and the goods and property of the defendant was levied upon by the sheriff of said Allegheny county."

The petitioners then pray in the usual form for a subpoena, and that the said Imperial Laundry Company may be adjudged a bankrupt. August 21, 1906, an answer was filed by the appellee, denying insolvency and also the commission of the act of bankruptcy first alleged, in that the date of filing the petition, to wit, the 17th day of August, 1906, was within five days of the time advertised for the sale

of said property. The answer also makes general denial as to the second act of bankruptcy alleged.

September 10, 1906, a petition was preferred by the appellants, to amend the creditors' petition by inserting three additional alleged acts of bankruptcy. This petition was refused. No reasons for the refusal are stated by the court, but they are readily apparent from an inspection of the amendments proposed, as they all lack the specific particularity requisite to the statement of an act of bankruptcy, or to sufficiently distinguish them from acts not in violation of the bankrupt law.

The assignments of error to the decree of the court, dismissing the petition, are, first, as to the holding that the company had all of the five days preceding the 22d, to vacate or discharge the alleged preference stated as the first act of bankruptcy in the petition. The act of 1898 declares in section 3a:

(3)

"Acts of bankruptcy by a person shall consist of his having suffered or permitted, while insolvent, any creditor to obtain a preference through legal proceedings, and not having, at least five days before a sale or final disposition of any property affected by such preference, vacated or dis charged such preference." Act July 1, 1898, c. 541, 30 Stat. 546 [U. S. Comp. St. 1901, p. 3422].

The learned judge of the court below was of the opinion that the sale being set for August 22d, the alleged bankrupt had all of the five days preceding the 22d to vacate or discharge the alleged preference, and this would give all of the 17th to do so. "Having all that day to vacate or discharge the execution, it follows it was guilty in that regard of no act of bankruptcy before the end of that day." In this opinion, we think the learned judge was clearly right. Section 31 of the bankrupt act provides for the computation of time as follows:

"Whenever time is enumerated by days in this act, or in any proceeding in bankruptcy, the number of days shall be computed by excluding the first and including the last."

The 17th of August, the day on which the petition was filed, being excluded, there were five full days to and including August 22d, the day set for the sale. The petition was therefore prematurely filed in respect to this alleged preference. That the facts alleged in reference to the judgment for the use of Guckenheimer do not constitute an act of bankruptcy, is apparent on the face of the petition, and it is due to counsel for appellants to say that they were not urged as such at the hearing of this appeal.

The other assignments of error refer to the refusal of the court below to allow the amendments to the petition above referred to. The whole matter of permitting or refusing amendments, is entirely within. the judicial discretion of the court, and, in accordance with the general rule, will not be interfered with by a reviewing court, unless abuse of such discretion has been shown. As the record discloses no ground for such interference in this case, the decree of the court below is affirmed.

(154 Fed. 797.)

MIDLAND CONTRACTING CO. v. TOLEDO FOUNDRY & MACHINE CO. (Circuit Court of Appeals, Seventh Circuit. February 5, 1907. Rehearing

Denied May 17, 1907.)
No. 1,292.

1. COURTS-FEDERAL COURTS-RESIDENCE OF PARTIES-OBJECTIONS-WAIVER. The right of a defendant, sued in a federal court on the ground of dlversity of citizenship, to object to the jurisdiction of the court because neither party is a resident of the district, is waived by his entering a general appearance and asking for an extension of time in which to plead and for a continuance, prior to the making of such objection.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Courts, § 815.]

2. REPLEVIN-DECLARATION-SUFFICIENCY ON DEFault.

Replevin is a possessory action, and where a wrongful taking is not alleged, but only a wrongful detention, the declaration must allege an immediate right of possession in the plaintiff, and an allegation of ownership merely will not sustain a judgment for plaintiff where defendant makes default.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 42, Replevin, §§ 211214.1

3. COURTS-PROCEDURE IN FEDERAL COURTS-ASSESSMENT OF DAMAGES ON DE

FAULT.

Rev. St. § 649 [U. S. Comp. St. 1901, p. 525], which requires a stipulation in writing waiving a jury to authorize trial of issues of fact by the court alone, is not applicable to default cases, and in an action of replevin brought in a federal court within the state of Illinois, in which the defendant makes default, the court is authorized to assess the damages without a jury under the Illinois practice act (3 Starr & C. Ann. St. Ill. 1896, c. 110, par. 41).

[Ed. Note.-Conformity of practice in common-law actions to that of state court, see notes to O'Connell v. Reed, 5 C. C. A. 594, and Nederland Life Ins. Co. v. Hall, 27 C. C. A. 392.]

In Error to the Circuit Court of the United States for the Eastern District of Illinois.

This writ of error is prosecuted from a judgment recovered against the Midland Contracting Company, defendant below, upon alleged default, in a replevin suit, brought by defendant in error, to recover a steam dredge and damages for alleged unlawful detention. The suit was commenced in the Circuit Court for the Eastern District of Illinois, by summons and writ of replevin, with service returned as made upon the superintendent of the defendant corporation (plaintiff in error) at Vandalia, Ill., December 1, 1905. The declaration avers, in substance, that the plaintiff therein (defendant in error) is an Ohio corporation, citizen, and resident; that the defendant there in is a Colorado corporation, having its principal place of business at St. Louis, Mo.; and that the defendant on November 20, 1905, unjustly and unlawfully detained a steam dredge, the property of the plaintiff.

On December 2d the plaintiff in error delivered to the marshal an indemnifying bond for retention of the dredge. On March 13, 1906, a rule was entered upon it to plead to the declaration by March 15th. On March 15th an affidavit of the attorney on its behalf was filed in court, then in session, averring a good and meritorious defense, with reasons for an extension of time to prepare and plead, praying such extension and continuance to the May term. Both motions were denied by the court. On March 16th the record states appearance of both parties, and leave "given the defendant to plead to the plaintiff's declaration herein, instanter;" that "its plea to the jurisdiction" was thereupon filed; and that demurrer to such plea was entered. The plea states the incorporation of the parties in Ohio and Colorado, respectively, and that neither resides in the district of the venue.

On March 19th upon consent of parties, the demurrer to the plea was treated "as a motion to strike said plea from the files," and the court sustained such motion upon the ground that "the defendant had hitherto waived its rights under said plea to the jurisdiction of the court," through its several general appearances. No further motion appearing on behalf of the plaintiff in error, the judgment order was entered of which review is sought. It re cites the failure of the defendant therein "to plead, answer, or demur"; that "having made default, and the court having heard the evidence submitted by the plaintiff, finds the issues for the plaintiff," and thereupon adjudges the dredge to be the property of the plaintiff below, and that the damages for the wrongful detention are $1,100. It awards recovery of possession and damages accordingly. Error is assigned for rejecting the plea in abatement and upholding jurisdiction of the parties, and for various alleged errors in prac tice.

D. E. Keefe, for appellant.

W. J. Wuerfel and Howard A. Swallow, for appellee.

Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

SEAMAN, Circuit Judge (after stating the facts). The contention that the trial court erred in upholding jurisdiction, when it appeared that both parties to the suit were nonresidents of the district, is untenable, in view of the general appearance of the defendant below, in open court, on March 15th, with an affidavit of meritorious defense and of need for further time to prepare for trial, and an application thereupon for extension of time to plead and for continuance of the cause. This appearance was without qualification, and the plea in abatement was not filed until the following day, when leave was granted by the court to plead to the declaration. As the rule is well settled that the provision for suits to be brought in the district of the residence of one or the other party "does not touch the general jurisdiction of the court over such cause between such parties," but "is a matter of personal privilege, which the defendant may insist upon, or may waive, at his election" (Interior Construction Co. v. Gibney, 160 U. S. 217, 219, 220, 16 Sup. Ct. 272, 40 L. Ed. 401, and authorities cited), the appearance and applications referred to waived the objection subsequently interposed, and the plea was rightly overruled. The plaintiff in error appears to have rested on the jurisdictional plea, making no application for leave to plead to the merits or for other relief from the default thereupon entered, and the only remaining questions open to consideration are, whether the record authorizes the judgment as entered. Error is assigned of two classes: (1) Want of timely service or sufficient declaration to authorize any default judgment in replevin; and (2) want of authority for assessment of damages by the court, without a jury.

1. The objections raised under the first-mentioned head are twofold: (1) That the defendant below was not in default under Practice Act Ill. c. 110, §§ 1, 8 (3 Starr & C. Ann. Ill. St. 1896, pp. 2977, 2989); (2) that the declaration is insufficient to support the judgment.

Assuming (without so deciding), for the sections referred to were operative in the trial presses us as applicable to the case at bar.

one proposition, that the court, neither section imSection 1 provides that