77 F. 168 | 9th Cir. | 1896
By tbis writ of error it is sought to review tbe judgment of tbe district court for tbe Southern district of California ordering tbe deportation of tbe plaintiff in error, upon tbe ground that be is a Chinese laborer unlawfully within tbe United States. It was stipulated between tbe parties upon tbe trial that prior and up to tbe 9th day of November, 1893, tbe plaintiff in error bad for 16 years resided continuously in tbe state of California, but that upon said date be departed for China, and that be returned to tbe United States on tbe 27th of May, 1895; that for a period of 7 years preceding and up to tbe 1st day of August, 1893, be 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 tbe United States Statutes at Large, and that during said period be was not a laborer; that on tbe 1st day of August, 1893, tbe store in which be carried on bis business as a merchant in California was destroyed by fire; that after tbe passage of tbe act of congress of November 3, 1893, there was no-office open within tbe state of California at which be could register, and no such office was open until after tbe 1st day of Janu
Undoubtedly, this view of the intention and scope of the stipulation is correct; but we do not agree with the conclusions of the trial court concerning the legal effect of the other facts proven on the trial, taken in connection with the facts admitted by the stipulation. The stipulation expressly admits that up to August 1, 1893, the plaintiff in error was a merchant, such as is described in the act of November 3, 1893 (28 Stat. 7). In other words, it is stipulated that during that period he was a merchant, “engaged in buying and selling merchandise at a fixed place of business,” which business was “conducted in his name,” and at the same time he was not engaged in any manual labor except such as was necessary in the conduct of his business as such merchant. Lmsmuch as the proof shows clearly that the firm name, both before and after the fire, was Chow Kee & Co., it follows, from this' stipulation, that up to August 1, 1893, the name of the plaintiff in error must have been signed to the articles of co-partnership and to the partnership accounts, since, under our decision in Lee Kan v. U. S., 10 C. C. A. 669, 62 Fed. 914, it was held that, in order that the business of a merchant may be considered as carried on in his name, under the statute, his nam., if not included in the firm name, must at least appear to the articles of co-partnership and to the partnership accounts. Such being admitted to be the status of the plaintiff in error on August 1, 1893, what is there in the record to show that after that date his relation to the partnership business continued to exist as before, and that there was no change therein? It appears, from the evidence, that there were but two partners in the firm of Chow Kee & Co., the plaintiff in error and Chow Kee, and that, immediately