ceedings in the state court introduced in evidence at the hearing below shows that, upon plaintiff's request to take a voluntary nonsuit, a judgment of dismissal and an award of execution in favor of the defendants for all their costs was entered; the order of the state court in that behalf being that "plaintiff's petition be dismissed, and that he take nothing by this writ herein, and that defendants have and recover of and from said plaintiff all their costs and charges in this behalf expended, and have execution therefor." Nothing, in our opinion, could more plainly show that the cause in the state court had been finally determined, and was not then pending, than this final judgment.

It is argued that the state court erred in permitting the plaintiff to take a voluntary nonsuit, and in rendering its judgment of dismissal in that cause; this, on two grounds: (1) Because the parties had agreed that the cause should be tried in the state court at its then May term, 1914; and (2) because in that action at law the defendants had interposed some equitable defense in the nature of a cross-bill in equity. Whatever may be the merits or demerits of these contentions, the judgment of the state court cannot be questioned in this action. It was the final judgment of a court of competent jurisdiction and cannot be attacked collaterally.

In view of the conclusion so reached, it is unnecessary to consider or pass upon the question of practice raised by plaintiff's counsel, that the court below erred in overruling his demand for a jury to try the special plea, together with the other issues in the case.

The judgment must be reversed, and the cause remanded to the District Court, with directions to proceed with its trial on the merits.

(235 Fed. 510)

LO PONG v. DUNN, Immigration Inspector.*

(Circuit Court of Appeals, Eighth Circuit. July 10, 1916.)

No. 4569.

1. ALIENS 31, 32(13)-DEPORTATION OF CHINESE CHINESE OTHER THAN LABORERS-FRAUDULENT PROCUREMENT OF CERTIFICATE.

The certificate on which a Chinese person was admitted as a student under Act May 6, 1882, c. 126, § 6, 22 Stat. 60, as amended by Act July 5, 1884, c. 220, 23 Stat. 116 (Comp. St. 1913, § 4293), is prima facie evidence only of the facts therein stated, and neither such certificate nor the decision of the immigration officers admitting the alien preclude a subsequent inquiry as to his right to remain in the United States; and where fraud in procuring the certificate is charged, the alien is subject to the action of the Secretary of Labor and his action is conclusive, if the proceedings and hearing were fair.

[Ed. Note. For other cases, see Aliens, Cent. Dig. § 95; Dec. Dig. 31, 32(13).]

2. ALIENS 29-DEPORTATION OF CHINESE-CHINESE OTHER THAN LABORERS.

The prima facie case made by such certificate as to the status of the alien as a student may be overcome by the other facts in the case. [Ed. Note. For other cases, see Aliens, Cent. Dig. § 91; Dec. Dig. 29.]

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes *Rehearing denied October 9, 1916.

Appeal from the District Court of the United States for the Eastern District of Missouri.

Habeas corpus by Lo Pong, alias Lo Bong, against James R. Dunn, Inspector in Charge, Immigration Service, Department of Labor. From a judgment dismissing the writ, petitioner appeals. Affirmed.

Byron F. Babbitt, Charles P. Johnson, and Eustace C. Wheeler, all of St. Louis, Mo., for appellant.

Benjamin L. White, Asst. U. S. Atty. (Arthur L. Oliver, U. S. Atty., of St. Louis, Mo., on the brief), for appellee.

Before HOOK and CARLAND, Circuit Judges, and MUNGER, District Judge.

MUNGER, District Judge. [1] The appellant, Lo Pong, a Chinese person, was arrested by the respondent, an immigration inspector, under a warrant issued by the Secretary of Labor, charging him with being found in the United States in violation of section 6 of the Chinese Exclusion Act, as amended by Act July 5, 1884, c. 220, 23 Stat. 116, having secured admission on a fraudulently procured certificate. He was accorded a hearing and a transcript of the proceedings at the hearing was submitted to the Secretary of Labor, who ordered his deportation. Appellant then obtained a writ of habeas corpus, but, on final hearing, the writ was dismissed, and he prosecutes this appeal.

Before leaving China, appellant obtained a certificate of admission from the viceroy at Canton, viséed by the United States consul, certifying that he was a student, and therefore authorized to come within the United States under the provisions of section 6 of the Chinese Exclusion Act as amended by Act of July 5, 1884. He was admitted by the immigration officer at Vancouver, B. C., after an examination, and proceeded to San Francisco. At this examination, he stated his age as 18 years, that he had attended school in his native village and at a nearby city for 8 years, and that he intended to attend the Oriental public school at San Francisco, first studying English and then taking a course in mining engineering. He exhibited a bank draft for $500 and had $7 in gold. He remained in San Francisco for two months, but attended no school. He claimed to have received lessons at his dwelling room during this period, two or three times a week, from some woman whose name he had forgotten, who did not speak Chinese, and who taught him only as to the English alphabet. Appellant then proceeded to St. Louis, Mo., where he resided for about 2 years and 10 months before the institution of this action. During this time he has attended no school, and claims that he has had no occupation or employment, has earned no money, and has expended that which he brought with him. He claims that he has suffered from a cough and pain in the back for the last two years, and that this disables him from attending school. His examination discloses a number of contradictory statements as to facts within his knowledge, such as his age, his receiving money from China, and his mother's name.

By section 1 of the Act of Congress of April 29, 1902, c. 641, 32 Stat. 176, as amended by section 5 of the Act of April 27, 1904, c. 1630, 33 Stat. 428 (Comp. St. 1913, § 4337), all laws in force on April 29, 1902, regulating, suspending, or prohibiting the coming of Chinese persons into the United States, and the residence of such persons therein, were re-enacted without modification. By section 6 of the Act of Congress of May 6, 1882, c. 126 (22 Stat. 60), as amended by Act July 5, 1884, c. 220 (23 Stat. 116), every Chinese person, other than a laborer, entitled to come to the United States, must obtain the permission of the Chinese government and be identified as so entitled, evidenced by a certificate, viséed by the proper diplomatic or consular representative of the United States. Such certificate is prima facie evidence of the facts set forth therein, but may be controverted and the facts therein stated disproved by the United States authorities. Under this statute, the decision of the appropriate immigration officers admitting the alien did not conclude an inquiry as to his right to remain within the United States. Li Sing v. United States, 180 U. S. 486, 490, 21 Sup. Ct. 449, 45 L. Ed. 634; United States v. Pin Kwan, 100 Fed. 609, 611, 40 C. C. A. 618; United States v. Lau Sun Ho (D. C.) 85 Fed. 422, 423.

By section 20 of the Immigration Act of February 20, 1907, c. 1134, 34 Stat. 904 (Comp. St. 1913, § 4269), as amended by the Act of March 4, 1913, c. 141, 37 Stat. 736, "any alien who shall enter the United States in violation of law, and such as become public charges from causes existing prior to landing, shall, upon the warrant of the Secretary of Labor, be taken into custody and deported to the country whence he came at any time within three years after the date of his entry to the United States." The warrant and order of deportation charged appellant with being found in the United States. in violation of section 6 of the Chinese Exclusion Act, as amended by Act July 5, 1884, having secured admission on a fraudulently procured certificate. The gravamen of this charge was a fraudulent entry into the United States, and hence appellant, though a Chinese person, was subject to the action of the Secretary of Labor. United States v. Wong You, 223 U. S. 67, 69, 32 Sup. Ct. 195, 56 L. Ed. 354; Williams v. United States, 186 Fed. 479, 480, 108 C. C. A. 457; Ex parte Greaves (D. C.) 222 Fed. 157, 158.

[2] It is not disputed that the action of the Secretary was conclusive if the proceedings were fair (Zakonaite v. Wolf, 226 U. S. 272, 274, 33 Sup. Ct. 31, 57 L. Ed. 218; Low Wah Suey v. Backus, 225 U. S. 460, 468, 32 Sup. Ct. 734, 56 L. Ed. 1165; Tang Tun v. Edsell, 223 U. S. 673, 675, 32 Sup. Ct. 359, 56 L. Ed. 606; Chin Yow v. United States, 208 U. S. 8, 11, 28 Sup. Ct. 201, 52 L. Ed. 369; United States v. Ju Toy, 198 U. S. 253, 261, 25 Sup. Ct. 644, 49 L. Ed. 1040; United States ex rel. Haum Pon v. Sisson, 230 Fed. 974, 975, 145 C. C. A. 168); but appellant contends that the order of deportation is not supported by any substantial evidence and therefore he is entitled to be discharged. As the evidence shows that appellant has been in the United States for three years, has not attempted other work as a student than his efforts to master the English alpha

bet during the first two months of his residence here, and the reasons for abstention from further study seem vague and unsatisfactory, and his credibility is weakened by the contradictions in his testimony, the Secretary of Labor might well draw the inference that he procured his certificate of admission fraudulently and not intending to be a student. The prima facie evidence of his certificate as a student may be overcome by the other facts in the case. United States v. Yong Yew (D. C.) 83 Fed. 832; United States v. Ng Park Tan (D. C.) 86 Fed. 605; United States v. Foo Duck, 172 Fed. 856, 858, 97 C. C. A. 204.

The judgment of the District Court is affirmed.

(235 Fed. 513)

EWERT v. BECK.*

(Circuit Court of Appeals, Eighth Circuit. July 5, 1916.)

No. 4546.

1. TRIAL143-DIRECTION OF VERDICT-POWer of Court.

It is the duty of the court to direct a verdict even though the evidence may be conflicting if the evidence on behalf of one party is of so conclusive a character that the court in the exercise of a sound discretion, would set aside a verdict for the adverse party.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. 143.]

2. VENDOR AND PURCHASER 231(14)-CONSTRUCTIVE NOTICE-EFFECT OF MISTAKE IN INSTRUMENT.

That an instrument affecting title to land through mistake was dated on Sunday, which under the state law would render it void, did not change the effect of the record as constructive notice, where it was in fact executed on a week day.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 538, 539; Dec. Dig. 231(14).]

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

Action at law by Paul A. Ewert against G. W. Beck. Judgment for defendant, and plaintiff brings error. Affirmed.

Paul A. Ewert, of Joplin, Mo., in pro. per.

W. H. Kornegay, of Vinita, Okl. (Judson, Green & Henry, of St. Louis, Mo., on the brief), for defendant in error.

Before HOOK and CARLAND, Circuit Judges, and MUNGER, District Judge.

MUNGER, District Judge. The plaintiff in error, hereafter called plaintiff, brought an action in ejectment against defendant in error, hereafter called defendant, claiming right of possession under an instrument called a mining lease, executed to him by an Indian allottee of the land. The defendant's claim of title was based on a similar instrument executed to him by the same grantor.

Plaintiff's lease was executed on July 26, 1913, while the lease to

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes *Rehearing denied December 11, 1916.

defendant bore date of August 18, 1912, and was filed for record on the following day. The plaintiff's lease contained a clause that certain covenants of plaintiff should not be binding upon the plaintiff "until the expiration of all prior lawful leases that may be found to exist upon said land." At the trial there was evidence that defendant's lease was signed and delivered in Kansas, but plaintiff contended that its validity depended upon the laws of Oklahoma, as it referred to land in Oklahoma and its covenants were to be performed there, and under the laws of that state it was void because it was executed on Sunday.

A verdict was directed for the defendant, and the propriety of that action is challenged, and it is claimed there was such evidence as to the execution of the lease on Sunday as to present an issue of fact for the jury. The defendant, the notary who took the acknowledgment of the lease, the attesting witness thereon, and defendant's brother, each testified to having been present at the time of the execution of the lease, and each clearly and circumstantially stated that it was executed and delivered by the lessee to the lessor at Baxter Springs, Kan., on Saturday, the day preceding the purported date. The defendant produced the bank check which he gave to the lessor in payment of the consideration and verified its date, which was on this Saturday. A clerk in a bank at Baxter Springs also verified the fact that the check was presented at the bank by the lessor on this Saturday and was then paid, and that it was forwarded to its correspondent bank for collection on the same day and so entered on the remittance register.

In addition to this testimony, the lessor testified that the transaction occurred on Saturday; but on cross-examination, and in response to leading questions as to whether defendant did not get the lease from him in Oklahoma, and on Sunday, replied in the affirmative. He also admitted that he had made similar admissions to plaintiff, and a written statement, which had been dictated by plaintiff to his stenographer, read over to the grantor, and signed by him, by mark, was introduced. The stenographer testified that the lessor had sworn to the truth of that statement. It also recited that the lease was executed and delivered on Sunday and in the state of Oklahoma. It is quite apparent, from the record of the examination of this Indian lessor, that he was ignorant, dull, and confused, and the trial court's remark at the close of his testimony, that there was not much certainty to be secured from that witness' testimony, and that he doubted very seriously whether he understood the questions put to him, was amply justified.

[1] In this condition of the evidence, the trial court properly withdrew this issue from the jury. It is its duty to direct a verdict, even in cases in which the evidence may be conflicting, if the evidence on behalf of one party is of so conclusive a character that the court, in the exercise of a sound judicial discretion, would set aside a verdict for the opposing party. Patton v. Texas & Pacific Railway Co., 179 U. S. 658, 659, 21 Sup. Ct. 275, 45 L. Ed. 361; Canadian Northern Ry. Co. v. Senske, 201 Fed. 637, 644, 120 C. C. A. 65; Haskell v.