2. SAME-CLASSIFICATION OF RISKS-ACTS OF GENERAL AGENT.

A classification of the applicant's occupation by a general agent of the company, who has been fully informed as to the facts, is binding on the company. Insurance Co. v. Snowden, 58 Fed. 342, and Insurance Co. v. Robison, Id. 723, followed.

In Error to the Circuit Court of the United States for the Western District of Missouri. Reversed.

William H. Dowe, Grant R. Bennett, William D. Rusk, and J. M. Johnson, for plaintiff in error.

H. K. White, S. P. Huston, and T. H. Parrish, for defendant in

error.

Before CALDWELL and SANBORN, Circuit Judges.

SANBORN, Circuit Judge. George W. Clayton, the defendant in error, brought an action upon a policy of accident insurance issued by the New York Accident Insurance Company of the City of New York, the plaintiff in error, to recover $2,500 for the loss of his right foot by the accidental discharge of a shotgun. The case was tried to a jury, and a judgment rendered against the company.

One of the defenses to the action was that the policy contained a stipulation that "this policy does not cover injuries, fatal or otherwise, caused wholly or in part, directly or indirectly, by any of the following causes: Violating the law;" and that when the accident happened the insured was hunting game on Sunday, in violation of section 3852 of the Revised Statutes of Missouri, 1889, which provides that:

"Every person who shall either labor himself, or compel or permit his apprentice or servant or any other person under his charge or control to labor or perform any work other than the household offices of daily necessity, or other works of necessity or charity, or who shall be guilty of hunting game or shooting on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and fined not exceeding fifty dollars."

There was evidence in support of this defense. The court charged the jury that, in order to avail itself of this defense, the company must prove it beyond a reasonable doubt. This was clearly erro neous. Where a criminal act is alleged in a civil suit, proof beyond a reasonable doubt is not required to warrant a verdict and decision in support of the allegation. A preponderance of the evidence is sufficient. This is so well settled by the authorities in this country that it does not permit discussion. U. S. v. Shapleigh, 4 C. C. A. 237, 54 Fed. 126, 134; 1 Greenl. Ev. § 13a, note; Kane v. Insurance Co., 17 Amer. Law Reg. (N. S.) 293, 297; Insurance Co. v. Wilson, 7 Wis. 169; Blaeser v. Insurance Co., 37 Wis. 31; Knowles v. Scribner, 57 Me. 495; Hoffman v. Insurance Co., 1 La. Ann. 216; Schmidt v. Insurance Co., 1 Gray, 529; Young v. Edwards, 72 Pa. St. 257, 267; Insurance Co. v. Johnson, 11 Bush, 587; Rothschild v. Insurance Co., 62 Mo. 356; Bradish v. Bliss, 35 Vt. 326; Ellis v. Buzzell, 60 Me. 209; Folsom v. Brawn, 5 Fost. (N. H.) 114; Matthews v. Huntley, 9 N. H. 146; Welch v. Jugenheimer, 56 Iowa, 11, 8 N. W. 673.

Another defense pleaded in the answer was that in his application for insurance the insured had warranted that he was a merchant,

when in fact he was a junk dealer; that a junk dealer belonged to a more hazardous class than a merchant, and could obtain from this company but $300 insurance against death, and but $100 against the loss of a foot, while a merchant could obtain, and this defendant in error did obtain, if he was properly insured as a merchant, $5,000 insurance against death and $2,500 against the loss of a foot. There was, however, evidence tending to show that the agent of the company who solicited the application was fully informed of, and well knew the character of, the business and of the occupation in which the insured was engaged when he took his application; that he desired the general agent to classify this risk; that he took the application from the insured, signed in blank, so far as the occupation was concerned, for this purpose; that he stated to the general agent of the company the character of the business and occupation of the insured, and the general agent then classified him, and wrote the word "merchant" into the application, to describe his occupation. On this application the policy was issued and the premium paid. Some portions of the charge of the court upon this state of facts are assigned as error. We shall not pause to state or review them, as the case must be retried in any event. We content ourselves with citing Insurance Co. v. Snowden, 58 Fed. 342, and Insurance Co. v. Robison, Id. 723, where the rule we deem applicable to this class of cases, and the reasons for it, are stated. The judgment below is reversed, and the cause remanded, with directions to grant a new trial.

In re AH YOW.

(District Court, D. Washington, N. D. January 16, 1894.) CHINESE-EXCLUSION ACTS-LABORERS.

A restaurant proprietor, who keeps a place for serving meals, and provides, prepares, and cooks raw materials to suit the tastes of his patrons, is a laborer, and is not privileged to enter the United States as a merchant.

At Law. Petition for habeas corpus in behalf of Ah Yow, a Chinese passenger detained by reason of the refusal of the collector of customs to permit him to land in the United States. Denied.

Frank Hartley Jones, for petitioner.

W. H. Brinker, U. S. Atty.

HANFORD, District Judge. The petition for a writ of habeas corpus in this case is filed in behalf of a Chinese passenger on board the steamship Tacoma, and sets forth that said Chinese person is proprietor of a restaurant in Seattle, to which place he is now returning from a visit to China, and that he is unlawfully detained on said vessel by the master thereof, for the reason that the collector of customs has refused to permit him to land in the United States; and, in the argument, counsel for the petitioner insists that a restaurant keeper is not a "laborer," in the sense in which that v.59F.no.5-36

word is used in the exclusion acts, and that a Chinese person in that business is privileged to enter the United States the same as a merchant. A restaurant keeper is a caterer, who keeps a place for serving meals, and provides, prepares, and cooks raw materials to suit the tastes of his patrons. A person in that business is not a merchant, nor does he come within the definition of any of the terms used in the statutes to describe the class of Chinese who are privileged to enter the United States; and I hold that, to the word "laborer" in these statutes, meaning must be given broad enough to include master mechanics and tradesmen, such as blacksmiths, cabinet makers, tailors, and shoemakers, who receive orders, and cut and make up materials in such forms and of such dimensions as their customers require. Those who, in following such callings, employ journeymen, and perform no manual labor themselves, still represent themselves to be, and they are, in popular estimation, blacksmiths, cabinet makers, tailors, and shoemakers, that is to say, skilled workmen. All Chinese persons who follow such callings are barred from coming to the United States. I hold that a restaurant keeper belongs to the same class, and is likewise barred. The application for a writ of habeas corpus is therefore denied.

UNITED STATES v. CAMFIELD et al.
(Circuit Court, D. Colorado. January 25, 1894.)
No. 2,972.

1. PUBLIC LANDS UNLAWFUL INCLOSURES.

The inclosure of public lands by a private corporation is unlawful, under the act of February 25, 1885, without regard to the intent with which it is done.

2. SAME.

An inclosure by one owning odd sections is unlawful, even though the fence is so constructed as to be entirely on his own lands, if the result is to inclose therewith the even sections belonging to the government.

Proceeding against Daniel A. Camfield and William Drury for unlawfully inclosing public lands. Heard on exceptions to the an

swer. Sustained.

All the odd-numbered sections in townships 7 and 8 N., range 63 W. of the sixth principal meridian, were purchased by the defendants from the Union Pacific Railway Company. The lands were incapable of successful cultivation without irrigation, as also were the adjoining lands, belonging to the United States. The defendants have undertaken to build reservoirs, to be supplied from the neighboring stream, for the irrigation of their own lands and the adjacent even-numbered sections belonging to the government. The method which the defendants pursued to inclose the lands was to place a fence on their own-the odd-numbered-sections, along the lower line thereof, and dropping down about six inches, and continuing the line of fence on the odd-numbered sections in the tier of sections next below on the upper line thereof, making a continuous fence except at intervals where the break of six inches occurs.

H. V. Johnson, U. S. Dist. Atty.

H. E. Churchill, A. C. Patton, and James W. McCreery, for defendants.

HALLETT, District Judge. The act of congress of February 25, 1885, (23 Stat. 321,) declares that any inclosure of public lands made without claim or color of title shall be unlawful, and confers jurisdiction on federal courts to abate and remove, in a summary way, all fences erected contrary to the provisions of the act. In this bill the government seeks to enforce the act with respect to certain fences erected by respondents, inclosing government lands in townships 7 and 8 N., of range 63 W. of the sixth principal meridian, covering an area of 20,000 acres. It is charged in the bill that respondents, owning odd-numbered sections in these townships and other townships adjacent, have erected a fence on their own lands in such manner as to inclose the even-numbered sections in townships 7 and 8, belonging to the government. Respondents confess the fact to be as alleged, and say that the inclosure was made with a view to bring the lands under cultivation by building canals and reservoirs, from which they may be irrigated. As to respondents' intent we cannot inquire, for that is not, under this statute, a judicial question. If the fence is forbidden by statute, we are not at liberty to inquire with what intent it was built; and obviously the case is within the statute, which declares "that all inclosures of public lands" shall be unlawful, without reference to whether the fence constituting the inclosure shall be on public or private lands. The circumstance that respondents have put their fence on their own lands is of no weight against the fact that the fence makes an inclosure of public lands. Often, in this circuit, the statute has been declared to have this effect, and some of the cases are found in the reports. U. S. v. Brighton Ranch Co., 25 Fed. 465, 26 Fed. 218; U. S. v. Cleveland & Colo. Cattle Co., 33 Fed. 323. Respondents rely on two cases which seem to support the answer, but they cannot be accepted in this court: U. S. v. Douglas-Willan Sartoris Co., 3 Wyo. 288, 22 Pac. 92; U. S. v. Brandestein, 32 Fed. 738. The exceptions to the answer will be sustained.

UNITED STATES v. McDONALD et al.

(District Court, N. D. Illinois. August 22, 1893.)

POST OFFICE-NONMAILABLE MATTER-LOTTERIES BOND INVESTMENT SCHEMES. A bond investment scheme, according to which only a limited few, who are determined by the order in which their applications are received, are certain to receive a return, and the rest are dependent for any return, and for the time thereof, upon the probability that the great majority will permit their bonds to lapse, is a scheme in which the prize is dependent on chance, and constitutes a "lottery," which it is criminal to advertise through the mails.

At Law. Indictment of George M. McDonald and others, officers of the Guarantee Investment Company, for violation of the lottery act of September 19, 1890, (26 Stat. 465.)

Thos. E. Milchrist, U. S. Dist. Atty.

Collins, Goodrich, Darrow & Vincent, and L. S. Metcalf, for defendants.

GROSSCUP, District Judge, (charging jury orally.) The statutes of the United States, gentlemen of the jury, provide that any person who shall knowingly deposit or cause to be deposited, send or cause to be sent, through the mails, any letter, postal card, or circular concerning any lottery, so-called gift concert, or other similar enterprise, offering prizes dependent upon lot or chance, shall be guilty of a misdemeanor.

The indictment, in the first and second counts, charges these defendants with having deposited, or caused to be deposited, sent, or caused to be sent, through the United States mails, certain letters or envelopes concerning a lottery, and in the third count it charges the defendants with having sent, or caused to be sent, through the United States mails, certain papers, pamphlets, or circulars concerning a lottery.

The proof shows that two letters were sent through the department to the defendant George M. McDonald, president of the Guarantee Investment Company, asking him, in substance, for such printed matter as he might wish to send the writer concerning the business and purposes of his company; and, in response thereto, envelopes and printed matter were deposited in the mails, directed to the individuals by whom the information was asked. The proof also shows the responses were put in the mails by defendants, or by clerks under the direction of the defendant in the case, and in furtherance of a practice under which like circulars and literature were habitually sent through the mails by this company in response to inquiries.

If you are satisfied of these facts upon the proofs beyond a reasonable doubt, (and no contradiction of them is attempted by the defendants now on trial,) it will be your duty to find a verdict of guilty, provided the papers inclosed in these envelopes concerned a lottery, or enterprise similar to a lottery, or gift concert, offering prizes dependent upon lot or chance. What, then, is the scheme or enterprise which this printed matter is calculated to promote?

The Guarantee Investment Company is an incorporated organization under the laws of the state of Missouri, which empower it to issue bonds and securities, hold real estate, and make investments thereon. The whole purpose of the company, however, seems to be to issue so-called bonds. For this purpose it maintains an office in St. Louis, and has agents throughout the country to induce people to buy these bonds. To the applicants are issued bonds of the company, being issued in consecutive numbers from one upwards, in the exact order of the imprint chronologically, said to have been made by an electrical contrivance attached to a clock.

For these bonds the applicant has already paid $10, a portion of which goes to the agent as his commission, the remainder to the company for its maintenance, and he has agreed to pay each succeeding month, for each bond purchased, $1.25 more, the 25 cents to be retained by the company for its maintenance, and the $1 going into the treasury, or so-called trust fund, for the redemption of the bonds. The trust fund is also increased by certain fines imposed for deferred payments and other delinquencies. For this the ap plicants receive the promise of the company, embodied in the bond,