1875.] Opinion of the Court-Deady, J. a local provision, it is expressly reserved from the operation of the repealing clause of section 5596 of said statutes. Assuming, then, that Oregon is Indian country, so far as the charge in this indictment is concerned, it becomes material to inquire whether this clause, "except an Indian in the Indian country"-should have been negatived in the indictment. The general rule is, that when there is an exception in the enacting clause, the indictment must show that the defendant is not within it. (1 Bish. C. P., sec. 375 et seq.; 1 Whar. C. L., sec. 379; 1 Chitty's C. L., 284; U. S. v. Pond, 2 Curtis, 268; Dawson v. The People, 25 N. Y. 399; Rex v. Stone, 1 East. 639; Rex v. Earnshaw, 15 East. 456.) Is this exception within the enacting clause of section 2139 supra? It is hardly contended that it is not, and I think there can be no doubt but that it is. It is a part of the clause which defines the offense, or the person who may commit it. By reason of it, the description of the offense is so limited, that as to "an Indian in the Indian country," the act of disposing of spirituous liquor to an Indian is not a crime. In other words, such act is not a crime unless done by a person other than " an Indian in an Indian country;" and so it must appear from the indictment that the defendant is a person other than such an Indian. The familiar case under the statutes making it a crime to sell spirituous liquor without license or special tax therefor is in point. The qualifying clause in regard to the license or tax is considered an essential part of the description of the offense, and an indictment under the statute which should fail to show that the selling was done by a person without a license or who had not paid the special tax, would be insufficient. It has also been suggested that the exception in section 2139, supra, extends to the offense as well as to the offender --to the act of disposing of the liquor as well as to the person disposing of it. This construction would divide the exception into two separate and independent clauses, the first one, "an Indian," qualifying the word "person" in the phrase "Every person;" and the second one, "in the Indian country," qualifying the following part of the sen May, Opinion of the Court-Deady, J. tence or the verbs "sells, exchanges," etc., or the word "Indian" following them. Upon this theory of the purpose of the act the sentence is very awkwardly and ungrammatically constructed. If the second clause was inserted in the sentence for the purpose of limiting its operation to cases where the liquor is sold to an Indian "in the Indian country," it should have been placed after the word "Indian" in the third line of the sentence, so that it would read: "Every person, except an Indian, who sells, exchanges, gives, barters or disposes of any spirituous liquors or wine to any Indian, in the Indian country * shall be punishable," etc. But according to what I consider the proper construction of the sentence, these qualifying clauses are now naturally and properly placed therein. The first one, "except an Indian," as has been said, qualifies the word "person" in the preceding phrase "Every person." The universality of this phrase is thus limited, so that it shall not include "an Indian," and so far an Indian cannot commit a crime by disposing of liquor to another Indian. The same result, so far as Indians are concerned, might have been accomplished by enacting-"Every white person who sells," etc. As this provision stood in section 20 of the act of June 30, 1834, as amended by act of March 15, 1864 (13 Stat. 29), this exception concerning Indians was not in it. The phrase "Every person" was used without qualification. Accordingly, this Court in United States v. Shaw Mux, 2 Sawyer, 364, held that the word "person," as therein used, included an Indian, and therefore he could be punished for disposing of liquor to another Indian in charge of an Indian agent. It may be that this clause was inserted in the sentence by the revisers on account of that decision. The second clause of the exception, "in the Indian country," was evidently added for the purpose of qualifying and restraining the first one, so that "an Indian" simply is not excepted from the phrase "every person," but only "an Indian in the Indian country.' Neither of these clauses has any relation to the offense but only to the persons who may commit it. The general policy of the law being as shown by 1875.] Opinion of the Court-Deady, J. section 2146 R. S., to leave the conduct of Indians in the Indian country as between themselves, to the tribal law, the second exception which limits the first one so that only Indians in the Indian country are excluded from the operation of section 2139, supra, is in harmony with such policy. But as to Indians not "in the Indian country," the effect is to leave them within the purview of the section and punishable for any violation of it. Besides, the qualifying clause as to the offense-that the Indian to whom the liquor is disposed must be "under the charge of an Indian superintendent or agent," shows plainly that the intent of the law-maker was to make the act of disposing of liquor to an Indian a crime, without reference to the fact of the place of disposal, provided the Indian was at the time under the charge of an Indian agent. This qualifying clause was first introduced into section 20 of the act of 1834, supra, by the act of 1862. (12 Stat. 339.) The effect of it was to limit the operation of the section, so far as the disposition of liquor to Indians is concerned, to the Indians under the charge of a superintendent or agent, whether within or without the Indian country. (United States v. Shaw Mux, supra.) In this condition of the section it was held by the Supreme Court in United States v. Holliday, 3 Wall. 416, that it was a crime to sell liquor "to Indians under charge of a superintendent or agent, whereever they might be." The compilers of the revised statutes have preserved this radical change, which made the criminality of the act of giving liquor to an Indian depend upon his being under charge of an agent, and not the character of the country where it took place, but added the qualification, "except an Indian in the Indian country," which excludes such Indians, and only such, from the category of persons who may commit the crime. In effect, this exception restores the qualification made to section 20, supra, by section 3 of the act of March 27, 1854 (10 Stat. 270), which provided that nothing contained in said section should "extend to any Indians committing said offenses in the Indian country." (United States v. Shaw Mux, supra.) The demurrer in this respect is well taken. It is also well taken upon the second ground. Every indictment must allege a day and a year certain on which the offense was committed. (1 Bish. C. L., Sec. 239.) This is the common law rule. The Code of Criminal Procedure of this State, which has been adopted by this Court as a rule of practice, does not change the law. On the contrary, the form of an indictment given in section 70, indicates an absolute averment as to the time of committing the offense. An allegation that a crime was committed "on or about." a certain day, does not show but that the action is barred by lapse of time. The demurrer must be sustained. IN RE S. Mendelsohn. DISTRICT COURT, DISTRICT OF CALIFORNIA. JUNE 8, 1875. 1. RIGHT OF ATTACHING CREDITORS TO OPPOSE ADJUDICATION.-An attaching creditor may intervene and oppose an adjudication in involuntary bankruptcy on the ground of fraud and collusion between the petitioner and debtor. 2. ASSIGNMENT AS AN ACT OF BANKRUPTCY.-Even a fair general assignment for the benefit of creditors is an act of bankruptcy, because it necessarily defeats the operation of the Bankrupt Act. 3. IDEM. Within the meaning of the law defining acts of bankruptcy an assignment, invalid under the laws of the State where made, but used as a means for giving a preference, is an act of bankruptcy. Before HILLYER, District Judge. D. Mendelsohn filed his petition praying an adjudication of bankruptcy against his brother, S. Mendelsohn. On the return day of the order to show cause, the alleged bankrupt, S. Mendelsohn, did not appear and on motion a default was entered, and thereupon an adjudication was asked for. At this stage in the proceedings certain creditors appeared and asked leave to intervene and contest the facts in the petition. They allege in their petition that they are 1875.] Opinion of the Court-Hillyer, J. creditors and have a lien, by attachment, on the goods of the debtor; that the proceedings for adjudication is collusive and fraudulent, and the alleged debt of, the petitioning creditor a sham. The petitioning creditor objected to their being allowed to contest his petition, upon the ground that until an adjudication the case is solely between himself and the debtor. This question was reserved, and testimony was taken upon the petition of intervention and the whole case submitted. One of the acts of bankruptcy charged in the petition for adjudication was that the debtor made an assignment of his property to Messrs. Davis & Co. with intent to give a preference to one or more of his creditors and to defeat or delay the operation of the act. An assignment was in fact executed by the debtor to Davis & Co. purporting to be in trust for all his creditors. The circumstances attending this assignment were that one Stone, the agent of Davis & Co., was pressing the debtor for payment of their claim, and procured the execution of the assignment with the understanding, as he says, that Mendelsohn should remain in possession of the goods, and carry on the business as before its execution; that on Monday of each week the debtor should pay $75, to be applied to the payment of creditors whose claims exceeded $100, and that Mendelsohn should provide for the payment of the small creditors himself. The arrangement was so far acted on that some $150 were paid to Stone, which is now on deposit for the benefit of the creditors who are entitled to it. Marcus Rosenthal, for petitioning creditor. F. G. Newlands, for intervening creditors. HILLYER, J. The first question is as to the right of these creditors having attachments to intervene and oppose the adjudication at this time. That the creditors now asking to intervene have a direct interest in opposing the adjudication is plain. They have attached the debtor's property, and if proceedings in bankruptcy do not go forward, will have a lien thereon for their |