officers or tribunals under and pursuant to exclusion acts of congress. This contention does not seem to me to be well founded. While it is true that the exclusion of foreigners is an exercise of political sovereignty, yet, where a general law has been passed for that purpose, the application of such law to individual cases is essentially a judicial function, and I can see no reason why the principle of res judicata should not be applied. Indeed, that the principle does apply to such cases is the sole question decided in the Day Case, supra. There the court dismissed a writ of habeas corpus on the ground that the decision of the commissioners refusing to allow certain foreigners to come into the country was final, and that the matter could not be made the subject of any subsequent inquiry. By reference to the decision in that case, it will be seen that a large number of authorities are cited in its support.

The further argument of the government that the Oregon judgment does not cover the issues involved in this proceeding seems to me equally untenable. Whatever may have been the reasoning of Judge Bellinger in his opinion, the judgment of the court upon the petition for the writ of habeas corpus, as found in the transcript of the record in evidence, was as follows:

"This cause was heard upon the petition and the testimony, the petitioner appearing by Mr. B. B. Beekman and Mr. G. W. P. Joseph, of counsel, and the United States, intervening herein, by Mr. Daniel R. Murphy, United States attorney; and, the court being now fully advised in the premises, it is ordered and adjudged that the prayer of said petition be granted, and that said petitioner be, and she is hereby, discharged from the detention and restraint complained of in said petition."

The precise question passed upon by Judge Bellinger was the right of the defendant to enter and remain in the United States, and he unquestionably had jurisdiction to hear and determine the matter. This point has been expressly decided by the supreme court of the United States. Judge Blatchford, delivering the opinion, says:

"It is contended for the United States that there was no jurisdiction in the district court to issue the writ in the first instance, because the party was not restrained of his liberty, within the meaning of the habeas corpus statute. It is urged that the only restraint of the party was that he was not permitted to enter the United States. But we are of opinion that the case was a proper one for the issuing of the writ. The party was in the custody. The return of the master was that he held him in custody by direction of the custom authorities of the port, under the provisions of the Chinese restriction act. That was an act of congress. He was, therefore, in custody under or by color of the authority of the United States, within the meaning of section 753 of the Revised Statutes. He was so held in custody on board of a vessel within the city and county of San Francisco. The case was one falling within the provisions of chapter 13 of title 13 of the Revised Statutes. It is also urged that if the right to issue the writ existed otherwise under the general provisions of the Revised Statutes, that right was taken away by the Chinese restriction act, which regulated the entire subject-matter, and was necessarily exclusive. We see nothing in these acts which in any manner affects the jurisdiction of the courts of the United States to issue a writ of habeas corpus. On the contrary, the implication of section 12 is strongly in favor of the view that the jurisdiction of the courts of the United States in the premises was not intended to be interfered with. That section provides that 'any Chinese person found unlawfully within the United States shall be caused to be removed therefrom to the country from whence he came after be

ing brought before some justice, judge, or commissioner of the United States and found to be one not lawfully entitled to be or remain in the United States.' So that, if it were to be claimed by the United States that Jung Ah Lung, if at any time he should be found here, was found unlawfully here, he could not be removed to the country from whence he came, unless he were brought before some justice, judge, or commissioner of a court of the United States, and were judicially found to be a person not lawfully entitled to be or remain here. This being so, the question of his title to be here can certainly be adjudicated by the proper court of the United States, upon the question of his being allowed to land." U. S. v. Jung Ah Lung, 124 U. S. 621, 8 Sup. Ct. 663.

Just such an adjudication as that here described was had in the case of the defendant at Portland, Or., upon the writ of habeas corpus already mentioned. Defendant's "title to be here" was then "adjudicated by the proper court of the United States," and "upon the question of her being allowed to land." The government, however, insists that the Oregon judgment was obtained through fraud, and is, therefore, open to collateral attack, and cites to this point, among other cases, U. S. v. Throckmorton, 98 U. S. 61–67. I cannot so find

or hold. If fraud was practiced upon the court, it consisted wholly in the introduction of false testimony, and it is well settled that this is no ground for vacating a judgment. Such was the express holding of the court in U. S. v. Throckmorton, supra. Mr. Justice Miller, delivering the opinion of the court, says:

"Where the unsuccessful party has been prevented from exhibiting fully his case by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party, and connives at his defeat; or where the attorney regularly employed corruptly sells out his client's interest to the other side, these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing. See, Wells, Res Adj. § 499; Pearce v. Olney, 20 Conn. 544; Wierich v. De Zoya, 2 Gilman, 385; Kent v. Ricards, 3 Md. Ch. 396; Smith v. Lowry, 1 Johns. Ch. 320; De Louis v. Meek, 2 G. Greene, 55. In all these cases, and many others which have been examined, relief has been granted on the ground that, by some fraud practiced directly upon the party seeking relief against the judgment or decree, that party has been prevented from presenting all of his case to the court. On the other hand, the doctrine is equally well settled that the court will not set aside a judgment because it was founded on a fraudulent instrument, or perjured evidence, or for any matter which was actually presented and considered in the judgment assailed. Mr. Wells, in his very useful work on Res Adjudicata, says (section 499): Fraud vitiates everything, and a judgment equally with a contract, that is, a judgment obtained directly by fraud, and not merely a judgment founded on a fraudulent instrument; for, in general, the court will not go again into the merits of an action for the purpose of detecting and annulling the fraud. The maxim that fraud vitiates every proceeding must be taken, like other general maxims, to apply to cases where proof of fraud is admissible. But where the same matter has been actually tried, or so in issue that it might have been tried, it is not again admissible. The party is estopped to set up such fraud, because the judgment is the highest evidence, and cannot be contradicted. * * * We think these decisions establish the doctrine on which we decide the present case, namely: That the acts for which a court of equity will, on account of fraud, set aside or annul a judgment or decree between the same parties, rendered by a court of competent jurisdiction,

*

have relation to frauds, extrinsic or collateral, to the matter tried by the first court, and not to a fraud in the matter on which the decree was rendered. That the mischief of retrying every case in which the judgment or decree, rendered on false testimony given by perjured witnesses, or on contracts or documents whose genuineness or validity was in issue, and which are afterwards ascertained to be forged or fraudulent, would be greater by reason of the endless nature of the strife than any compensation arising from doing justice in individual cases."

Recognizing and applying the principle enunciated in the foregoing extracts from U. S. v. Throckmorton, supra, I cannot do otherwise than hold that no such fraud has been shown in the present case as invalidates the judgment of the Oregon court. Whether that court was misled by false testimony, or erred in its conclusions of law, are questions not here open to inquiry. It is to be presumed, in favor of its judgment, that the evidence required by law as to the right of the defendant to come into the United States was adduced upon the hearing. That judgment cannot be collaterally as sailed in this proceeding, and must be held to establish the lawfulness of the defendant's residence in the United States. This ruling renders it unnecessary to decide the other points submitted in defendant's brief.

The judgment and order of the commissioner will be reversed, and the defendant discharged.

UNITED STATES v. WONG HONG.

(District Court, S. D. California. December 2, 1895.)

1. CHINESE EXCLUSION ACT.

Under Act Oct. 1, 1888, a Chinaman who left the United States in 1893, being at the time a laborer, cannot return.

2. CONSTRUCTION OF STIPULATION-CHINESE MERCHANT.

A stipulation in a proceeding for the deportation of a Chinaman, that "up to the 1st of August, 1893, the defendant was a merchant," does not by implication admit that he was a merchant after that date.

George J. Denis, U. S. Atty.

Marble & Phibbs, for defendant.

WELLBORN, District Judge. The defendant is charged with being a Chinese laborer, unlawfully within the United States. Upon the trial, the following stipulation was entered into by the parties:

"That prior to and up to the 9th day of November, 1893, the defendant had resided continuously in the state of California, for a period of not less than 16 years, and did reside in the state of California on said 9th day of November, 1893, on which day he departed for China, from the port of San Francisco, in this state, and that he did not return to the United States until the 27th day of May, 1895, on which day he arrived at the port of San Francisco, coming from China. That for a period of 7 years preceding, and up to the 1st of August, 1893, said defendant was a merchant, as defined by the act of congress of the United States, passed November 3, 1893, being chapter 14 of volume 28 of the United States Statutes at Large, which act is amendatory of the act of congress, passed May 5, 1892, and that during said period of time he was not a laborer. That on said 1st day of Au

gust, 1893, the store, which was situated in the city of Riverside, Riverside county, Cal., and at which defendant carried on his said business as a merchant, was destroyed by fire. That at the time of his said departure for China the defendant did have, and ever since has had, and now does have, property in the state of California, to the amount of not less than $5,000, and that the defendant has never been charged with or convicted of a crime or felony. That after the passage of the act of congress of November 3, 1893, there was no office open within the state of California wherein or at which this defendant could register, and no such office was open until after the 1st day of January, 1894, subsequent to the time the defendant departed for China, and which said registration offices were closed May 6, 1894.”

From the evidence adduced, I find the following facts: About six weeks or two months after the fire, referred to in said stipulation, another house was built on the lot where the original store stood. The firm of Duey Lee & Co., who occupied said store at the time of the fire, opened business, in the new store, two weeks or more before the defendant left San Francisco for China. De fendant was a member of the firm, and put into the business $800. After the fire, and until his departure for China, defendant devoted himself to said business, which, so far as the evidence shows, was conducted wholly in the name of Duey Lee & Co. Defendant has, all along, up to the present time, retained his interest in said firm. After the defendant's return from China and to Riverside, and up to the time of his arrest, he stayed in the store, and aided in the transaction of its business. While there is some conflict as to whether or not the defendant, after his return from China, was engaged in manual labor, disconnected with said mercantile business, the preponderance of evidence is to the effect that he was at times employed in manual labor not connected with said business. However, this circumstance, in my view of the case, is not controlling, and perhaps immaterial.

The defendant's right to be in the United States must depend upon his having been a merchant at the time of his departure therefrom, November 9, 1893. If at that time he was a laborer, his return to the United States was in contravention of the act of October 1, 1888 (1 Supp. Rev. St. p. 625), and unlawful. Construing this section, the supreme court of the United States, Jus tice Field delivering the opinion, says:

"The result of the legislation respecting the Chinese would seem to be this, that no laborers of that race shall hereafter be permitted to enter the United States, or even to return after having departed from the country, though they may have previously resided therein and have left with a view of returning." Wan Shing v. U. S., 140 U. S. 424, 11 Sup. Ct. 729.

The defendant, having departed from the country in 1893, cannot now be lawfully here, unless the facts sustain his contention that he was a merchant at the time of such departure. The act of November 3, 1893, provides as follows:

"The term 'merchant,' as employed herein and in the acts of which this is amendatory, shall have the following meaning and none other: A merchant is a person engaged in buying and selling merchandise, at a fixed place of business, which business is conducted in his name, and who during the time he claims to be engaged as a merchant, does not engage in the performance of any manual labor, except such as is necessary in the conduct of his business as such merchant." 2 Supp. Rev. St. p. 154.

An analysis of this provision shows that, in order to constitute a person a merchant, four things are necessary: First, such person must be engaged in buying and selling merchandise; second, he must be so engaged at a fixed place of business; third, said business must be conducted in his name; fourth, he must not, during the time he claims to be engaged as a merchant, engage in the performance of any manual labor, except such as is necessary in the conduct of his business as such merchant. With reference to these constituents, it is only necessary to say, that the defendant has not only failed to establish the third constituent, but the evidence shows its nonexistence. While it is true that the stipulation, already mentioned, necessarily admits that the mercantile business therein referred to was conducted in the defendant's name, yet it will be observed that the period covered by this stipulation extended only to the 1st of August, 1893, and in no way affects defendant's business subsequent thereto. The claim of the defendant, that his status of merchant, as fixed by this stipulation, continues, presumptively, beyond August 1, 1893, I do not think is tenable, for two reasons: First. The language of the stipulation excludes the idea that it was intended thereby impliedly to admit that the defendant was a merchant subsequent to the date fixed, August 1, 1893, the language of the stipulation being "that up to the 1st of August, 1893, the defendant was a merchant." From this language the fair inference, I think, is that the parties to the stipulation intended that the defendant's status subsequent to the date named, should be determined, not by the stipulation, but by the evidence adduced on the trial. Second. The stipulation itself shows that the business to which it refers was destroyed by fire on said date. If, however, the defendant's mercantile status, as fixed by said stipulation, ought to be presumed to continue until the contrary is established by affirmative proof, I think that result has been accomplished, for the uncontradicted evidence shows that, subsequent to the 1st of August, 1893, the defendant's mercantile business was not conducted in his name. The evidence is uncontradicted and positive to the effect that the firm name was Duey Lee & Co., and there is not a particle of evidence that the defendant's name appeared in any way in the conduct of said business. It is impossible, therefore, to hold in this case that the defendant is a merchant, without an utter disregard of the act of congress above mentioned. The circuit court of appeals of this circuit has decided that, in order to constitute a person a merchant within the meaning of said act, it is not necessary that his name appear in the firm designation, but it is sufficient if his interest be real and appear in the business and partnership articles in his own name. Lee Kan v. U. S., 10 C. C. A. 669, 62 Fed. 914. In the present case, there is no proof that the defendant's name appeared in the partnership articles or elsewhere in the business, while the proof is positive that the business, subsequent to August 1, 1893, was not conducted in the defendant's name.