PANG SHO YIN V. UNITED STATES.

Detroit and taken to the jail at Detroit. On July 2d he was brought before one of these officers and was sworn and examined by the latter through the medium of a Chinese interpreter employed by the government, and the other inspector, acting as stenographer, took warrant was issued by a United down the statement. On July 5th States commissioner on the complaint of one of the inspectors, and the respondent was taken before the commissioner, where he pleaded not guilty. His defense was that he was born in San Francisco, Cal., and was therefore a citizen of the United States. The hearing was adjourned from time to time until November 19th, when the commissioner adjudged that the respondent was a Chinese person, and was guilty of being unlawfully within the United States, and entered an order for his deportation. The respondent appealed to the District Court, where the commissioner's order was affirmed.

The decisive question in' the case is whether the appellant was born. in this country of parents having a domicile here. If he was, his expulsion would deprive him of a constitutional right of citizenship.

The order of the commissioner, so far as it involved the question of the respondent's citizenship, was based entirely on the inspector's examination of the respondent above mentioned and the answers of the respondent to the questions put to him on said examination; and the testimony of the inspectors that at the time they seized the respondent at Ecorse he was coming from the direction of the Detroit river, in company with three other persons, one of whom was a Chinese The interpreter, who was himperson, and the other two white men. self a Chinese person, testified that the respondent seemed to understand the Chinese language, and that from his general appearance, his complexion, and the manner of wearing his queue, he judged him to belong to that nationality. And it may be here said that the proof was sufficient to support the finding that the respondent was a Chinese person. Counsel for the appellant comment upon the use made by the government of the inspector's examination of the respondent below; that it was made when he had no counsel, and without warning to the respondent of the use which might be made of it, and by persons. whose sole object was to convict him. There is at the head of the examination a statement that the respondent was given warning, but While no witness swears to it, and there is no certificate to that effect. This is simply the unsworn ex parte statement of the stenographer. the question is not raised in such a way as to require a ruling upon it, we feel bound to say that the unsatisfactory character of testimony so procured as the basis of an adjudication against the respondent is a factor which we take into account in reaching our conclusion.

In the inspector's examination, the respondent stated that he was 34 years old; that he was born in San Francisco; that his father's name was San Foy, and his father died when the respondent was quite young; that he went to China when he was four years old; that he had lived there until his recent return to this country; that his occupation there was farming; that when he returned he landed in Vancouver, British Columbia, and paid a head tax there of $500; that he had been in various parts of Canada; that he left Windsor at 10 o'clock the evening before his arrest by the inspectors and came across the Detroit river

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.

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. 34221, 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 execu tion, 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 preierence 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 discharged such preference." Act July 1, 1898, c. 541, 30 Stat. 54C [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.

CHICAGO, M. & ST. P. RY. CO. v. NEWSOME.

(Circuit Court of Appeals, Eighth Circuit. May 13, 1907.)

No. 2,462.

DAMAGES PERSONAL INJURIES-FUTURE PAIN.

Plaintiff in an action for injuries is entitled to recover only for such future pain and suffering as are reasonably certain to result on account of the injury, as distinguished from pain and suffering that may or are merely probable or likely to result.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Damages, § 236.]

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

M. B. Webber, for plaintiff in error.

W. D. Abbott (Henry M. Lamberton, L. L. Brown, and S. H. Somsen, on the brief), for defendant in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

HOOK, Circuit Judge. Newsome, who was stealing a ride on a railroad train, says he was required to get off while the train was in rapid motion by wanton and malicious threats of personal violence by a brakeman, and in doing so fell between the cars and was injured. He sued for damages, and secured a verdict and judgment. In charging the jury the trial court said that, if he was entitled to recover at all, he might recover for "the pain and suffering which he had had to endure on account of the injury, or will be likely to have to endure hereafter." This part of the charge was excepted to, and it is erroneous. The rule of C. & N. W. Ry. Co. v. De Clow, 124 Fed. 142, 61 C. C. A. 34, restated in C., M. & St. P. Ry. Co. v. Lindeman, 143 Fed. 946, 75 C. C. A. 18, is that the future pain and suffering for which recovery may be had must be such as are reasonably certain to result, not such as may result or are merely probable or likely. The error in the instruction compels a reversal, and we refrain from considering the other assignments of error, since the matters mentioned in them may not arise again.

The judgment is reversed, and the cause remanded for a new trial.

UNIVERSAL BRUSH CO. v. SONN et al.

(Circuit Court of Appeals, Second Circuit. June 29, 1907.)

No. 195.

1. PATENTS-INFRINGEMENT-METHOD OF MAKING BRUSHES.

The Morrison patent, No. 717,014, for a method of making brushes, which consists in depositing a mass of heated plastic composition, which becomes hard when cooled, within a chambered brush frame having a contracted aperture, and forcing one end of the groups of bristles into the composition when in the plastic state, is not a pioneer, but covers merely an improvement on known methods, and must be limited strictly to the particular advance made. It is not infringed by a construction in which the aperture of the chamber is not contracted, but the sides are