Appeal from the District Court of the United States for the Northern District of California.

This was au application by Lai Moy, a Chinese person, for a. writ of habeas corpus. The district court remanded petitioner, who now appeals.

This is an appeal from a judgment of the district court, Northern district of California, rendered against appellant on habeas corpus proceedings. lie claimed the right to land in the United States as a merchant, but the right was denied by the, collector of the port of San Francisco. In his petition, lie says, after stating lie was imprisoned and detained by the master, of the steamship City of Pekin, claiming to act under the Chinese exclusion act, that he “does not come within the restrictions of said acts, but, on the contrary, your petitioner alleges that said passenger was a resident of the United Stales, and departed therefrom on the steamship Belgic, on or about the 6th day of October, 1892; fhat said passenger is not a laborer, but, oil the contrary, is a merchant and a member of the firm of hum Chong Bro. & Co., dealers in dry goods and clolliing; that lie conducted said business under said name for more than one year prior to Ms said departure; that during such time he was not engaged in the performance of any manual labor-, except such as was necessary-in the conduct of his business as such merchant.” The referee to whom the matter was referred reported adversely to appellant, and recommended ids remand, and this report was affirmed by the district court. The testimony shows that he departed from the United States on the steamer Belgic on October 6, 1892, and that he was at such time and for some years before a member of the firm of I aun Chong, 740 Commercial street, which did a clothing and dry goods business, — sold, to quote from appellant’s testimony, “Chinese clothing, silks,” etc., and also manufactured “pants and coats,” etc. To the question, “What did you do in carrying on the business of the firm?” lie answered, “I used to sell goods and cut out clothes.” The following testimony was then given: “Q. Are ydu a clothes cutter? A. Yes, sir; I understand it. Q. Was not that your principal business? A. That and selling goods. Q. Did you make clothing other than to cut them? A. Sometimes. Q. Now, when you say sometimes, what do you mean by that? A. Well, if we were in a rush, any one of us would take a hand on the sewing machine. Q. What proportion of your time were you employed in cutting and making clothing during the last year before you went to China? A. I suppose nearly equally divided.” This testimony was corroborated by another witness.

Section 2 of the McCreary act is as follows: “The words ‘laborer’ or ‘laborers,’ wherever used in this act, or in the act to which this is an amendment, shall be construed to mean both skilled and unskilled manual laborers, including Chinese employed in mining, fishing, huckstering, peddling, lauu-drymen, or those engaged in taking, drying, or otherwise preserving shell or other fish for home consumption or exportation. 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. When an application is made by a Chinaman for entrance into the United States on the ground that he was formerly engaged in this country as a merchant, he shall establish by the testimony of two credible witnesses other than Chinese the fact that he conducted such business as hereinbefore defined for at least one year before his departure from the United States, and that during such year he was not engaged in the performance of any manual labor, except such as was necessary in the conduct of his business as such merchant, and in default of such proof shall be refused landing. * * *”

The assignments of error are as follows: First, that said district court erred in deciding that said Lai Moy was not a domiciled Chinese merchant, and not' entitled to enter and remain in the United States; second, that said court erred in deciding that it was necessary for the petitioner to prove by two witnesses other than Chinese that, for more than one year prior to his departure for China, he had not been engaged in the performance of any manual labor other than such as was necessary in the conduct of his business as a merchant; third, that the court erred in holding and deciding that petitioner was not a merchant, because within one year of his departure for China he had performed certain manual labor in connection with his business as a partner in the firm of Lum Chong, clothing and dry-goods merchants; fourth, that the court erred in holding and deciding that petitioner, Lai Moy, was and is a Chinese laborer, and therefore not entitled to return to and remain in the United States.