in the price, the vendors should pay the commissions of the brokers employed by the vendees, the sale never would have gone through. It is too late now to change the terms of the agreement which made the sale possible.

The judgment is affirmed with costs.

(243 Fed. 555)

SPENCER v. PATEY.

(Circuit Court of Appeals, Second Circuit. May 8, 1917.)

No. 254.

1. APPEAL AND ERROR ~840(2)—REVIEW-JURISDICTION.

On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first of the appellate court, and then of the lower court, which must be disposed of, though not raised by the parties.

Jurisdiction cannot be conferred by consent or the failure of the parties to raise the question in the trial court.

3. CITIZENS 2-JOINT-STOCK COMPANIES.

A joint-stock association is not a citizen, and its status in the federal courts must be judged by the citizenship of its members.

4. COURTS 322(3)—FEDERAL COURTS JURISDICTION.

As a joint-stock association is not a citizen, and its status in the federal courts must be judged by the citizenship of its members, a complaint alleging that plaintiff was a citizen and resident of New Jersey, and that defendant was a joint-stock association with its principal place of business in New York, does not allege facts requisite to give the federal courts jurisdiction for the ground of diversity of citizenship.

In Error to the District Court of the United States for the Southern District of New York.

Action by Edward Patey against Caleb S. Spencer, as treasurer, etc. There was a judgment for plaintiff, and defendant brings error. Reversed and remanded, with directions to dismiss the complaint.

This case comes here on writ of error to review a judgment entered upon the verdict of a jury in favor of the plaintiff, Edward Patey, in the sum of $2,100 for injuries sustained by him by reason of the alleged negligence of the defendant. The parties will be hereafter designated as they appeared in the court below, as plaintiff and defend

ant.

Edward V. Conwell and George W. Smyth, both of New York City, for plaintiff in error.

R. Frank Thompson and Leonard F. Fish, both of New York City, for defendant in error.

Before COXE, WARD, and ROGERS, Circuit Judges.

COXE, Circuit Judge. [1] It is unnecessary to discuss the merits of this controversy for the reason that we are convinced that the District Court for the Southern District of New York, where the case was

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tried, had no jurisdiction. In Railway Co. v. Swan, 111 U. S. 379, at page 382, 4 Sup. Ct. 510, at page 511, 28 L. Ed. 462, Mr. Justice Matthews says:

"On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it."

[2] Jurisdiction cannot be conferred by consent or the failure of the parties to raise the question in the trial court. Minnesota v. Northern Sec. Co., 194 U. S. 48, 24 Sup. Ct. 598, 48 L. Ed. 870; Great Southern Hotel Co. v. Jones, 177 U. S. 449, 20 Sup. Ct. 690, 44 L. Ed. 842.

[3, 4] In short, if the court has no jurisdiction it cannot proceed, and when this appears, whether in the trial court or the appellate court, there is no alternative but to decline to entertain the cause. This being the law, we turn to the record and find a controversy of which the District Court has no jurisdiction upon the allegations or the proofs. The complaint alleges upon information and belief that the defendant is "a joint stock association, with its principal business in the borough of Manhattan, city of New York, and that the said Caleb S. Spencer is the treasurer thereof." It alleges further that "the plaintiff was and still is a resident of the city of Jersey City, state of New Jersey." Manifestly the complaint contains no allegation of adverse citizenship and fails to state facts which confer jurisdiction upon the District Court for the Southern District of New York. There is no proof as to the citizenship of the defendant other than an allegation that it is "a joint-stock association with its principal office and place of business in the borough of Manhattan, city of New York, and that the said Caleb S. Spencer is the treasurer thereof." In short, we think it must be assumed that there is no proof whatever of facts giving this court jurisdiction.

As the record now stands, the action is brought by a resident of New Jersey against a joint-stock company having its principal office in the city of New York. A joint-stock association is not a citizen and its status in the federal courts must be judged by the citizenship of its members. There is no allegation or proof in the record as to the citizenship of the members of the defendant association. Taylor v. Weir, 171 Fed. 636, 96 C. C. A. 438. The complaint and the proofs fail to state a cause of action of which the District Court had jurisdiction. Chapman v. Barney, 129 U. S. 677, 9 Sup. Ct. 426, 32 L. Ed. 800; Thomas v. Ohio University, 195 U. S. 207, 25 Sup. Ct. 24, 49 L. Ed. 160.

We think the judgment should be reversed with costs and the cause remanded to the District Court with instructions to dismiss the complaint without prejudice.

(243 Fed. 557)

SINGH v. UNITED STATES.

(Circuit of Appeals, Ninth Circuit. July 16, 1917.)

No. 2861.

1. ALIENS 53-DEPORTATION-GROUNDS OF DEPORTATION.

Where aliens entered the United States surreptitiously and without inspection, they may be deported irrespective of other grounds of deportation.

2. ALIENS

54-DEPORTATION-PLACE OF DEPORTATION.

Under Immigration Law Feb. 20, 1907. c. 1134, §§ 20, 21, 34 Stat. 904, 905 (Comp. St. 1916, §§ 4269, 4270), declaring that on deportation the alien be deported to the country whence he came, together with section 35 (Comp. St. 1916, § 4284), declaring that the deportation of aliens arrested within the United States after entry and found to be illegally therein shall be to the trans-Atlantic or trans-Pacific ports from which said aliens embarked for the United States, an alien, a native of India, who unlawfully entered the United States from Canada, should be deported to India, where it did not appear that he had acquired a domicile in Canada. 3. ALIENS 54-DEPORTATION-DOMICILE.

That an alien was in British Columbia for 11 months, and for 8 months of that time worked at a lumber mill, living in the company house, does not show that he acquired a domicile in Canada, so as to warrant his deportation to Canada from the United States instead of to the country from whence he came.

That an alien purchased land in Canada does not show that he had a domicile there, so as to warrant his deportation from the United States to Canada instead of to the country from whence he came.

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

Petition by Dhanna Singh against the United States of America for a writ of habeas corpus. Writ denied, and petitioner appeals. Affirmed.

Joseph P. Fallon, of San Francisco, Cal., for appellant.

John W. Preston, U. S. Atty., and Casper A. Örnbaun, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District Judge.

GILBERT, Circuit Judge. The appellant, an East Indian, and a British subject, entered the United States at San Francisco in 1908. He worked as a laborer at various places in California and Oregon. In 1912 he visited Canada, where he remained two weeks. Thereafter he returned to the United States and resumed his occupation of laborer until April, 1914, when he went to British Columbia. There he remained until March 1, 1915, when he surreptitiously re-entered the United States. He was arrested on a warrant which charged him with having entered the United States from Canada without inspection. Upon a hearing thereafter had before the immigration officials, he was ordered deported to India. A petition for a writ of habeas

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corpus was filed in his behalf, and in connection therewith the record of the Bureau of Immigration in the deportation proceedings was considered by the court below. The court denied the writ. There is no showing that the hearing was unfair.

[1] The fact, which is not denied, that the appellant re-entered the United States surreptitiously and without inspection, is sufficient in itself, irrespective of other considerations, to justify the order of deportation. Ex parte Li Dick (C. C.) 176 Fed. 998; Ex parte Hamaguchi (C. C.) 161 Fed. 185; Williams v. United States, 186 Fed. 479, 108 C. C. A. 457; Ex parte Greaves (D. C.) 222 Fed. 157.

[2] But it is contended that the writ should have been issued for the reason that the warrant of deportation directs that the appellant be returned to India instead of to Canada, the country from which he last entered the United States. The provisions of sections 20 and 21 of the Immigration Laws (34 Stat. 898), containing the expressions that the alien "be deported to the country whence he came," and that he be "returned to the country whence he came," must be construed together with section 35, which provides:

"That the deportation of aliens arrested within the United States after entry and found to be illegally therein, provided for in this act, shall be to the trans-Atlantic or trans-Pacific ports from which said aliens embarked for the United States; or, if such embarkation was for foreign contiguous territory, to the foreign port at which said aliens embarked for such territory."

The order of deportation, therefore, properly required that the alien be returned to the trans-Pacific port from which he embarked for the United States unless the evidence showed that he acquired a domicile in Canada.

[3, 4] He testified that during the 11 months while he was last in British Columbia he worked 8 months at a lumber mill, living in the company house at the mill, and that thereafter he wandered around, looking for a job. These facts are not sufficient to show that he acquired a domicile in Canada, or that he is entitled to be returned there on his deportation. The fact that he owned real estate in British Columbia is relied upon as evidence that he was domiciled there. It appears that in the years 1911 and 1912, he, together with other Hindus, purchased an interest in certain lots in British Columbia. But the acquisition of this interest in real estate some two years before he went to Canada is not enough to show that he was domiciled there, and no other fact is presented or relied upon. There was no error, therefore, in the warrant of deportation. Lewis v. Frick, 233 U. S. 291, 34 Sup. Ct. 488, 58 L. Ed. 967; United States v. Sisson (D. C.) 220 Fed. 538; United States v. Sisson (D. C.) 220 Fed. 541; Ex parte Chin Him (D. C.) 227 Fed. 131; Ung Bak Foon v. Prentis, 227 Fed. 406, 142 C. C. A. 102; Wallis v. United States, 230 Fed. 71, 144 C. C. A. 369; Bun Chew v. Connell, 233 Fed. 220, 147 C. C. A. 226. The judgment is affirmed.

(243 Fed. 559)

SINGH et al. v. UNITED STATES.

(Circuit Court of Appeals, Ninth Circuit. July 16, 1917.)

No. 2860.

1. ALIENS 53-DEPORTATION-GROUNDS of DEPORTATION.

Where aliens entered the United States surreptitiously and without inspection, they may be deported irrespective of other grounds of deportation.

2. ALIENS 54-DEPORTATION-PLACE OF DEPORTATION.

Where aliens, natives of India, were discovered surreptitiously entering the United States from Canada, they were properly ordered deported to India, where they denied having been in Canada, and there was no evidence that they had acquired any domicile there or had remained there any length of time.

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

Petition by Gujar Singh and Inder Singh for a writ of habeas corpus. Demurrer by the United States being sustained and writ denied, petitioners appeal. Affirmed.

Joseph P. Fallon, of San Francisco, Cal., for appellants.

John W. Preston, U. S. Atty., and Casper A. Örnbaun, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District Judge.

GILBERT, Circuit Judge. The appellants, who are natives of India and British subjects, entered the United States at San Francisco in the years 1907 and 1909, respectively. In April, 1915, they were arrested on a warrant charging them with having entered the United States from Canada without inspection. Thereafter, and after a hearing before the immigration officials, they were ordered deported. A petition for a writ of habeas corpus was filed on their behalf, to which the United States demurred, and, on the hearing of the demurrer, the record of the Bureau of Immigration in the deportation proceedings was introduced and considered, whereupon the court sustained the demurrer and denied the writ. On the appeal two questions are presented: First, whether there was evidence that the appellants entered the United States from the Dominion of Canada, a short time prior to their arrest; and, secondly, whether they could be deported to India. We find in the record substantial evidence on which the immigration officials could find that the appellants entered the United States from Canada, and that Gujar Singh entered the United States on April 16, 1915. There was evidence that he was taken from a box car of the Great Northern Railway, at Sand Point, Idaho, on the morning of April 22, 1915; that he was wearing shoes made in Ontario, and a cap with a London trade-mark, and had Canadian bills in his possession; that Inder Singh entered the United States by walking across the border near Gateway, Mont., having $2 in his possession. There was evidence that both of the appellants at first admitted that they had entered the United States from Canada, but on the hearing they

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