and the fairness of his treatment at such hearing is not a matter of controversy here. His appeal to the Secretary of Labor was dismissed, which put an end to the inquiry, unless his case was reopened for further hearing. An attempt was made to reopen it, but was defeated by the appellant's act in escaping from his place of detention. The crucial question here is whether appellant shall be deported in pursuance of the order and judgment of the commissioner of immigration. Whatever his status at that time, that judgment has settled that it was not such as to entitle him to a re-entry into the United States, and by this the court is precluded from entertaining further inquiry, except, as we have indicated, upon complaint that he was not accorded a fair hearing before the commissioner. Chin Yow v. United States, 208 U. S. 8, 28 Sup. Ct. 201, 52 L. Ed. 369.

[2] It is urged in support of the second contention that, appellant having remained within the United States for the period of three years, he cannot now be deported, although his entry was irregular-this for two reasons, namely: (1) That he was not proceeded against within 3 years, in pursuance of section 21 of the general act to regulate the immigration of aliens into the United States; and (2) that his status has been that of a merchant in the meantime-indeed, it is said, for 61⁄2 years prior to the present hearing.

It is quite true that an alien may not be deported after 3 years' residence, who has violated no law except that he is here through an irregular entry, if he is not otherwise chargeable with personal immorality. United States v. Wong You, 223 U. S. 67, 32 Sup. Ct. 195, 56 L. Ed. 354. In the present case, however, the appellant has been proceeded against within the 3 years. He was, in fact, proceeded against instantly upon his attempt to effect a re-entry, and his right to re-enter was adjudged adversely to his contention. The 3 years have elapsed with this order and judgment standing against him, neither reversed nor annulled. In other words, the judgment in the meanwhile has been in effect declarative of his unlawful status, as being within the country surreptitiously.

[3] This brings us to the inquiry whether, notwithstanding the order and judgment that he was without the right or privilege of re-entry, his remaining within the United States surreptitiously for more than three years, with the status of a merchant, cures his unlawful entry. In Tsoi Sim v. United States, 116 Fed. 920, 54 C. C. A. 154, which involved the right to remain in the United States of a Chinese woman who lawfully entered before the Chinese Exclusion Act was enacted, and remained there afterwards, but failed to register as required, and was thereafter lawfully married to a citizen of the United States, it was held that, by reason of her marriage, appellant took the status of her husband, and was not subject to deportation; the court assuming that she was subject to deportation previous to her marriage. So it was held, respecting a French woman, who, pending proceedings for her deportation under the immigration laws, married a citizen of the United States, that, by reason of having taken the status of her husband, she was entitled to remain. Hopkins v. Fachant, 130 Fed. 839, 65 C. C. A. 1.

In Ex parte Ow Guen (D. C.) 148 Fed. 926, the relator, a Chinaman, was a resident of this country before the adoption of the Chinese Exclusion Act. He went to China, leaving the affidavits of two white witnesses showing him to be a merchant in Lowell. On his return he was refused admission because, although a merchant in fact, he was said not to be in law, as he had been a laborer and remained unregistered. He came again, and applied for admission as a merchant, but was ordered deported, because he had been an unregistered laborer. The court held that the relator, as an unregistered laborer, was entitled to all the rights of a resident alien until proceeded against and deported-among others, the right to become a merchant, and that, when he became a merchant, he had all the rights of one under the law. This was not a case of curing an unlawful entry by becoming a merchant. It was merely a case in the end where, a Chinaman having applied to enter as a merchant, and having been denied entry on the ground that he had been formerly within the United States with the status of a laborer, it was declared that he had the right to change his status, and, having done so, in pursuance thereof had the right of re-entry as a merchant.

These cases are not controlling here. If appellant's re-entry had been surreptitious only, the case would be different. He came and applied for re-entry, and was adjudged not to be entitled thereto. After the judgment had gone against him, he escaped, and remained in the country in spite of the efforts to deport him in pursuance of the order and judgment of the commissioner of immigration. It does not seem to us that an unlawful resistance of a lawful order and judgment, however long continued, can have the effect to outlaw such order and judgment. It is not through the neglect of the government that the order has not been executed, but through the adroitness of appellant in keeping himself secreted. We think, therefore, that, while appellant's long residence in this country might have cured a merely surreptitious entry, it does not cure an unlawful resistance of the judgment and order of deportation. To hold otherwise would be to encourage resistance to lawful authority.

[4,5] The next inquiry is whether appellant is a Chinese officer within the exempted class. Section 13 of the act of May 6, 1882, as amended July 5, 1884 (23 Stat. 118), provides that the act "shall not apply to diplomatic and other officers of the Chinese or other governments traveling upon the business of that government"; and section 14 of the act of September 13, 1888 (25 Stat. 479), further provides "that the preceding sections shall not apply to Chinese diplomatic or consular officers or their attendants." The appellant clearly does not bring himself within the provision of section 13 of the earlier act. He is not in any sense an officer traveling upon the business of his government. Nor is he a diplomatic or consular officer within the meaning of section 14 of the act of 1888. Can he be said to be an attendant of such an officer, admitted to the United States under special instructions of the Department of Commerce and Labor?

K. Ow Yang, the Chinese consul general for the port of San Francisco, testifies that appellant is secretary of the Ning Yung Association,

and attached to the Chinese consulate, and that he has been so attached since last November (1913); that he was selected by the Ning Yung Association, and that all the members of the different associations assist in the consular work; that all the presidents of such associations come from China, but that the secretary is usually selected in this country on account of his knowledge of English. The appellant has no credentials from his government, nor a passport from the minister at Washington. He simply is secretary of an association, who may do some work for the Chinese consul if he sees fit to call upon him for that purpose, and a member of the advisory board of the consul. It further appears that the Ning Yung Association is composed of all the Chinese living in this country who come from Ning Yung province in China, and that the work of the association is benevolent in character. This testimony shows the appellant to be an officer of the Ning Yung Association-an association organized in this country; not an association even of the Chinese government, nor organized by its authority. By reason of his being such an officer, the Chinese consul avails himself of his assistance in doing consular work; but we infer that he is not a regular attendant of the consul, any more than are the secretaries of all the six associations of Chinese residents in this country similarly organized, who may be members of an advisory board of the consulate. This, as we are impressed, does not constitute the appellant an attendant of the consular office of the Chinese government, within the meaning of section 14 of the act of Congress of September 13, 1888. But, even if he had become an attendant by reason of his selection by the Ning Yung Association as secretary, we think that would not avail to cure his unlawful resistance to deportation under the order and judgment of the commissioner of immigration. Nor do we think that the treaty relations between this government and China help his case. Affirmed.

AMERICAN BANK OF ALASKA V. JOHNSON.
(Circuit Court of Appeals, Ninth Circuit. October 1, 1917.)
No. 2815.

1. BANKRUPTCY 303(3)-TRANSFERS-KNOWLEDGE

DENCE.

OF

TRANSFEREE-EVI.

In a suit by the trustee of bankrupts, composing a mining copartnership, to recover the value of gold dust delivered by the bankrupts to defendant bank, evidence held to show that the dust was sold to the bank in the ordinary course of business, that its value was at once ascertained and credited by tellers' slips to the account of the bankrupts, who were doing business as a partnership, and at once offset against their notes and debts, and that the bank had no knowledge at that time that the firm was insolvent, or that an unlawful preference would be given.

2. BANKRUPTCY

164-PREFERENCES-DEPOSITS-EFFECT OF.

The deposit of gold dust in a bank to the account of the depositor is not a transfer of money as a payment or security, and does not operate to diminish the estate of the depositor.

3. BANKRUPTCY

326-PREFERENCES-WHAT CONSTITUTE.

Where a depositor, who was indebted to a bank, make a deposit in the usual course of business, the bank's application of the amount of the deFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

posit to its indebtedness is valid as a set-off, under Bankruptcy Act July 1, 1898, c. 541, § 68a, 30 Stat. 565 (Comp. St. 1916, § 9652), and is not a preference under section 60a (section 9644).

4. BANKRUPTCY 326-DEPOSIT AND CREDIT-CHARACTER OF TRANSACTION. That the books of a bank did not show the entry of credit until the day after a deposit of gold dust does not change the character of the transaction, where at the time of the delivery of the dust to the bank credit was actually given by tellers' slips.

In Error to the District Court of the United States for the Fourth Division of the Territory of Alaska; Charles E. Bunnell, Judge.

Action by G. Johnson, as trustee in bankruptcy of T. Mitchell & Co., a mining copartnership consisting of Thomas Mitchell, Jas. J. Fallon, and Herman Fawcett, bankrupts, against the American Bank of Alaska, a corporation. There was a judgment for plaintiff, and defendant brings error. Reversed and remanded, with directions.

Action by Johnson, as trustee in bankruptcy of the mining partnership of T. Mitchell & Co., of Fairbanks, Alaska, against the American Bank of Alaska, at Fairbanks, to recover $3,750.27, with interest, upon the theory that the action of the bank with respect to certain gold dust, of the value of $3,750.27, delivered to the bank on the evening of July 31, 1913, constituted an unlawful preference, and was voidable under section 60 of the Bankruptcy Act. The case was tried to a jury, and general verdict for the trustee was rendered. Judgment in accord with the general verdict was entered, and the bank sued out writ of error.

Thomas A. McGowan, John A. Clark, and John Knox Brown, all of Fairbanks, Alaska, and Charles J. Heggerty and Knight & Heggerty, all of San Francisco, Cal., for plaintiff in error.

Herman Weinberger, of San Francisco, Cal., and Louis K. Pratt and Thomas A. Marquam, both of Fairbanks, Alaska, for defendant in

error.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District Judge.

HUNT, Circuit Judge (after stating the facts as above). There is little conflict in the testimony, and the facts are substantially as follows: Mitchell & Co., a partnership, consisting of Thomas Mitchell, J. J. Fallon, and H. Fawcett, had an account with the bank for some weeks before July 31, 1913. By June 9, 1913, the firm owed about $1,500, besides a debt of about $400 to the bank. The first clean-up, on July 3, 1913, amounted to $1,904. This was turned into the bank, where the overdraft was then $1,400, and was credited to the firm. Checks were drawn against it, and again overdraft was made. The second clean-up, on July 16th, realized $2,280, and was also put in the bank to the credit of the firm, and checks were honored. The third clean-up was on July 30th, and was made subsequent to a telephone message from Brunning, cashier of the bank, advising the firm that it had no money and that notes and overdrafts were due, and that he (Brunning) had deposited his note for $500 to meet checks to reduce the overdraft. On the evening of July 31st, about 5 o'clock, after regular banking hours, Fallon, who had charge of the books and accounts,

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

went to the bank with gold dust worth $3,750.14. The firm then owed over $13,000, of which it owed the bank, on notes and overdraft $4,096.14; the debt being for labor account checks, merchandise, and other things paid for by the bank between July 16th and 31st.

Fallon, in testifying as to the occurrences in the bank, said that he and Fawcett went to the bank about 5 o'clock and left the firm bank book and the gold dust, which was "to be blown and credited the same as before"; that he went back in the evening, between 7 and 8 o'clock, and was told that the dust was not cleaned up, whereupon he said he would call in the morning; that the next morning, when he called, Mr. Brunning gave him the bank book and vouchers, and told him that he had been instructed to get all overdrafts in, and said, "I have applied it and disbursed it," and that the bank could not carry the firm any longer. Fallon also said that the book was returned on August 2d, and showed that on July 31st $3,750.27 was placed to the credit of the firm; that on August 2d the books and vouchers returned showed that the bank had paid checks for $6,329.70 since the previous balance, and that it had credited the firm account with the last clean-up, and charged against the account the notes the firm had in the bank, and that there was still an overdraft of $133.70. The books of the bank, offered in evidence, showed deposits of proceeds of gold dust and check withdrawals and overdrafts. A deposit of $2,213.14 was made on July 18th; one of $500 on July 19th to reduce overdraft; one on July 31st of $3,750.27; while on July 16th overdraft was $133.71; on August 2d checks amounting to $6,329.70 were returned. Petition in involuntary bankruptcy was filed August 23, 1913.

The evidence showed that between June 11, 1913, when the firm commenced to do business with the bank, and July 31, 1913, the bank honored the checks of the firm and paid out for them $9,683.35, and received and credited gold dust from them amounting to $7,934. On the evening of July 31st a garnishment was levied upon the bank in an action brought by certain creditors against the firm, but these proceedings were all subsequent to the delivery of the gold dust to the bank. Brunning, the cashier, testified that the credit of the proceeds of the dust was made July 31st; that the books were balanced as on that day and that a deposit slip, which was introduced in evidence, showing the advance of $3,734.12 was made that day, but that the entries in the individual ledger carrying the credit and showing the charges were not made by the bookkeeper until August 1st and 2d; that, in accordance with the usual custom of the bank, the notes were treated as a check would be, and were charged up and the overdraft extinguished as far as could be, and that in this way he made the set-off then and there; that all was done before 6 o'clock, and that he did not then know anything of impending suits against the firm, or that its prospects were bad. The cashier explained an entry of $19.13 on August 2d as the difference between what the dust brought at $16.40 and what it realized after the assay; the purchase having been made at the rate of $16.40 an ounce, with the understanding that if it "went better" the firm would get the credit, but that if it did not go $16.40 the bank would sustain the loss.