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:

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. Defendant was a member of the firm, and put into the business $800. After the fire, and until bis departure for China, defendant devoted himself to said business, which, so far as the evidence shows, was conducted wholly in the ñame of Duey Lee

The defendant’s right to he 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 be 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, Justice Field delivering the opinion, says:

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:

*285 An analysis of this provision show's 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, lie musí, 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 tiie 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 uot 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 tiie 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 liis name. The evidence is uncontradicled 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, flier*'fore, to hold in this case that the defendant is a merchant, wit fiout 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 Ms 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 ease, 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.

*286 My conclusion is that the defendant, Wong Hong, is a Chinese laborer, and unlawfully within the jurisdiction of the United States, and the judgment of the court will be that said defendant, Wong Hong, he removed from the United States to China, and that the deportation of the said Wong Hong he made from the port of San Francisco, Cal., and that said Wong Hong be, and is hereby, committed to the United States marshal for the Southern district of California for the purpose aforesaid.