The contention of the plaintiff was that pursuant to agreement it had secured a purchaser and introduced such purchaser to the defendant, but that the latter had thereafter ignored the plaintiff and sold the land to such purchaser. The contention of the defendant was that, while the plaintiff had found and introduced the customer, the parties could not agree on a price; that the whole transaction fell through and the relations between the plaintiff and the defendant came to an end. Its further contention was that some years later new negotiations were had by the introduced customer and the defendant, but on an entirely new basis, to wit, that the customer required the defendant to buy a large adjoining tract so as to make, with the original acreage, sufficient timber to justify such customer in making the purchase. It alleged that it had so bought and conveyed such large adjoining tract, and had thereby sold the original land and that the

plaintiff had nothing to do with the sale which, in fact, was made by itself. The court, in its charge, to which no exception was taken, submitted the case to the jury which found for the defendant.

[1] Thereupon this writ was sued out. Under the Pennsylvania decisions (Earp v. Cummins, 54 Pa. 394, 93 Am. Dec. 718; Speer v. Benedum-Trees Oil Co., 239 Pa. 180, 86 A. 695; Groskin v. Moore, 249 Pa. 242, 94 A. 1057; Sowney v. Bair, 269 Pa. 448, 112 A. 530), a real estate agent is not entitled to recover commissions merely by finding the purchaser, but he must be the direct and proximate cause of the sale. If the negotiations started by him fall through,

and are in good faith abandoned by the parties, he cannot recover commissions if the person so introduced is later induced by some other person and by other means or considerations to buy the property. The evidence in this case brought the case within these principles and was therefore pertinent. [2] Was such evidence properly received under rule 1, § 3, of the court below, which provides, "No evidence shall be heard upon the trial of the cause as to any facts not alleged or referred to as a ground of action or matter of defense in the statement and affidavits then on file in the case"? The affidavit of defense, in addition to denying the alleged contract to pay commissions, averred "that the plaintiff had no part whatsoever in any of the negotiations which led up to the sale consummated on September 12, 1925, covering the combined property of the defendant, and the United States Lumber Company and Edwin B. Jones, trustee." We think the testimony as to the sale, how it was brought about, the fact that additional property had to be bought to effect a sale, and who really brought the sale about, was properly received under the pleadings. No contention is made by the plaintiff that it was surprised by the admitted testimony, or that an opportunity was denied it of controverting or explaining the same. The question whether the plaintiff had or had not brought about the sale was clearly defined by the pleadings, and the defendant's testimony met that issue by showing that others and other means had, and therefore the plaintiff had not, brought about the sale.

So regarding, the judgment is affirmed.

Appeal from the District Court of the United States for the Eastern Division of the Northern District of Ohio; Paul Jones, Judge.

Petition by the United States, on the relation of Harry Gellman and George Hurley, against George A. Stauffer, United States Marshal, for writ of habeas corpus. From an order denying the writ, petitioners appeal. Affirmed.

Otto Christensen, of Los Angeles, Cal. (David D. Stansbury, of Chicago, Ill., on the brief), for appellants.

Leo Klein, Asst. U. S. Atty., of Chicago, Ill. (A. E. Bernsteen, U. S. Atty., of Cleveland, Ohio, and George E. Q. Johnson, U. S. Atty., of Chicago, Ill., on the brief), for appellee.

Before DENISON and MOORMAN, Circuit Judges, and RAYMOND, District Judge.

PER CURIAM. Appellants were indicted in the Northern District of Ohio, Eastern Division, charged with conspiring to violate the National Prohibition Act (27 USCA). Proceedings were instituted in the Northern district of Illinois to remove them to Ohio to answer the indictment. While those proceedings were pending, an indictment was returned against them in the Illinois court, charging them with another conspiracy. They appeared in the Illinois court and offered to surrender on the indictment. The court ordered them removed to Ohio, and after their release on bond in that court they were rearrested under a proceeding to return them to Illinois. They applied for writs of habeas corpus, which the District Court denied.

The removal proceedings in both jurisdictions were instituted under section 1014 of

the Revised Statutes (18 USCA § 591). The right of the Illinois court to yield its jurisdiction under that statute, and order the removal of appellants without their consent, whether under bond or arrest, is too well settled for argument. United States v. Marrin (D. C.) 227 F. 314; In re Andrews (D. C.) 236 F. 300; Rumely v. McCarthy, Marshal (D. C.) 256 F. 565. In doing so the court did not so relinquish its claim that the other court, in the exercise of a like comity, could not yield its jurisdiction and order appellants returned. It is said, however, that, having offered to submit to "trial" in Illinois, and being forcibly removed therefrom to Ohio, appellants cannot, after giving bail in Ohio, be returned to Illinois; and an analogy is sought to be drawn between section 1014 and section 5278 of the Revised Statutes (18 USCA § 662), in so far as the latter is controlled by the character of the offender's absence from the state where the offense was committed. Section 5278 relates to the extradition of fugitives from justice, and is a

rule of conduct for state executives. Whether it operates only upon offenders who are voluntarily absent from the state where the offense was committed we do not decide. It is certain that section 1014 is not controlled by any such consideration.

If the indictment in Ohio were dismissed, or if upon conviction thereon the penalty were paid, it could not be contended, we think, that appellants would not be subject to removal to Illinois to answer the indict

ment there. The fact that the Ohio indictment is undisposed of does not make improper what would otherwise be proper, if the Ohio court is willing, as evidenced by its order, to yield its jurisdiction. Nor is it material that its order of removal may be a second link in what could conceivably become a chain of removals that would work a hardship upon the accused. The answer to that is that there is time enough to correct such an abuse of discretion after it has been committed, and it has not yet been done. If the removal should prevent appellants from appearing for trial in Ohio, the sureties on their bail bonds would be released. Beavers v. Haubert, 198 U. S. 77, 25 S. Ct. 573, 49 L. Ed. 950, and Haas v. Henkel, 216 U. S. 462, 30 S. Ct. 249, 54 L. Ed. 569, 17 Ann. Cas. 112. The proceeding in Ohio involved no constitutional right. Morse v. United States, 267 U. S. 80, 45 S. Ct. 209, 69 L. Ed. 522. It was addressed to the discretion of the court, of which there was no abuse. The judgments are affirmed.

HEAD v. TEXAS RAWHIDE PAVING CO.

Circuit Court of Appeals, Fifth Circuit. November 22, 1927.

No. 4941.

1. Appeal and error 263(3)-Rulings refusing instructions, where not excepted to, are not reviewable.

Rulings of court in refusing instructions to jury are not subject to review, where not excepted to.

2. Trial 91-Overruling of motion to strike out oral evidence admitted without objection held not error.

Overruling of motion to strike out oral evidence admitted without objection, some of which was properly admissible, held not reversible

error.

In Error to the District Court of the United States for the Northern District of Texas; James Clifton Wilson, Judge.

Action by the Texas Rawhide Paving Company against J. W. Head. Judgment for plaintiff, and defendant brings error. Affirmed.

Mark McMahon, of Fort Worth, Tex. (Cantey, Hanger & McMahon, of Fort Worth, Tex., on the brief), for plaintiff in

error.

Hugh B. Smith, of Fort Worth, Tex. (Slay, Simon & Smith and Ogden K. Shannon, Jr., all of Fort Worth, Tex., on the brief), for defendant in error.

Ex parte HING.

District Court, W. D. Washington, N. D. January 19, 1927.

No. 11160.

1. Aliens 42-Where members of Board of Special Inquiry were properly appointed and took oath, it was legal for board to determine applicant's right to admission to United States (Immigration Act [8 USCA §§ 201226]; 8 USCA § 153).

Members of Board of Special Inquiry having been properly appointed, and having duly quali fied by taking oath prescribed by Immigration Act (8 USCA §§ 201-226), pursuant to section 17 of Act Cong. Feb. 5, 1917 (8 USCA § 153), there was legal Board of Special Inquiry, which could determine rights of applicant for admission to United States.

2. Citizens 3-Congress is without authority to restrict effect of birth in United States as making one citizen (Const. Amend. 14).

persons born in United States are citizens thereUnder Const. Amend. 14, providing that all of, Congress is without authority to restrict effect of birth as making one a citizen.

3. Citizens 7-Congress may provide that marriage to alien shall expatriate (Const. Amend. 14; 8 USCA § 9).

Under Const. Amend. 14, Congress may provide that marriage to an alien shall effect expatriation, as was provided by Act Sept. 22, 1922, § 3 (8 USCA § 9).

4. Aliens 61-Applicant, whose father was Chinaman and whose mother belonged to English race, was of race ineligible to United States citizenship (Immigration Act 1924, § 13 [c], being 8 USCA § 213).

Under Immigration Act 1924, § 13(c), being 8 USCA § 213, applicant, who was born in Ver

PER CURIAM. [1,2] A reversal is sought in this case because of the overruling of a motion of the plaintiff in error, the defendant below, "to strike out all of the oral evidence," and because of the action of the court in giving and refusing instructions to the jury. The last-mentioned rulings are not subject to be reviewed, because none of them was excepted to. The above-mentioned motion was made after the admission, without objection, so far as the record shows, of much oral evidence, some at least of which was plainly admissible. Manifestly the overruling of that motion was not reversible error. No reversible error being shown by the record, the judgment is affirmed.

alien since her departure from United States, and whose father was a Chinaman, and whose mother was white and belonged to English race, was of race ineligible to United States citizenship.

5. Evidence 21, 37-Court cannot take ju

dicial notice of foreign laws or customs, and must apply local laws and customs to controverted fact, in absence of proof.

Court cannot take judicial notice of foreign laws or customs, and must apply local laws and customs to any controverted fact, in absence of proof.

6. Citizens 10-Native-born citizen should not be deprived of privilege of citizenship without substantial testimony to sustain fact of marriage to alien (8 USCA § 9).

Native-born citizen should not be deprived of privilege of United States citizenship, under substantial testimony to sustain fact of her Act Sept. 22, 1922, § 3 (8 USCA § 9), without marriage to an alien.

7. Citizens 10-That some ceremony was performed in foreign country, and that appli

cant for admission to United States believed she was married, did not establish marriage of applicant to alien.

Fact that some ceremony was performed in foreign country, and belief of applicant for admission to United States and her alleged husband of marriage status did not of itself establish marriage of applicant, who had been United States citizen, to alien.

8. Citizens 10-That applicant for admission to United States sought divorce and obtained interlocutory decree did not establish marriage of applicant to alien.

That applicant for admission to United States, who had been United States citizen by reason of birth, had sought divorce and obtained interlocutory decree, did not establish marriage to alien, if in fact such relation had not been consummated.

On Further Hearing.

9. Citizens 10-Evidence did not show marriage of applicant for admission to United States, formerly United States citizen, to alien in China (8 USCA § 9).

In hearing before Board of Special Inquiry for admission to United States of applicant, who had been citizen of United States by reason of birth, evidence showing that Chinese customs were not observed, and that ceremony was performed by a Mohammedan priest, evidence did not show marriage of applicant to an alien, who was person of half Chinese and half East Indian blood, so as to effect expatriation, under Act Sept. 22, 1922, § 3 (8 USCA § 9).

Habeas Corpus. Application of Sara Lydia Hing, also known as Sara Lydia Rumjahn, for a writ to secure release from custody. Writ issued.

The petitioner, born at East Barnard, Vt., United States, married to an alien since her departure, seeks admission to the United States. Her father is a Chinaman and her mother, born in England, is white and belongs to the English race. Petitioner was educated in the schools of the United States, having three years of high school education, and speaks very little Chinese-"just what I picked up when I went over there." She was preinvestigated and given a return certificate (form 430), and departed for China May 2, 1923. She went through a marriage ceremony, and believed she was married to Rumjahn, a medical student in Hong Kong, a person of half Chinese and half East Indian blood. She returned to the United States May 5, 1925, and presented her return certificate, and disclosed the fact of her marriage. She was denied admission under section 13 (c) of the Immigration Act of 1924 (8 USCA § 213) being married to an alien ineligible to citizenship. On appeal the Sec

retary of Labor sustained exclusion, but authorized her parole for six months, which was afterwards extended for two additional periods of six months each. Thereafter deportation was directed November 23, 1926. She surrendered herself December 3, 1926, and applied for a writ of habeas corpus.

She alleges that she was denied a fair trial, in that she did not have counsel; that she was told by the board it was unnecessary, and that she was therefore not advised as to her legal status; that the true facts with relation to the marriage ceremony were not established; that there is no testimony sustaining a valid marriage under the laws of China; and that the ceremony performed is void, and does not constitute the petitioner the wife of Arthur J. Rumjahn. It is also claimed that the Board of Special Inquiry was not legally organized, and the members therefore incompetent to constitute a valid board, and, so constituted, could not determine the rights of the applicant.

The only evidence in the record as to the marriage is the testimony of the petitioner: "Q. Have you been married? A. Yes. "Q. How many times have you been married? A. Once.

"Q. Where were you married? A. In Canton, China.

"Q. Where was your husband born? A. Hong Kong.

Indian. I mean Mohammedan, but he has "Q. Of what race of people is he? A. never been out of Hong Kong. I think his ancestors were from India.

"Q. Is he a full-blooded Indian? A. No; he is half Chinese.

Q. Were you married in accordance with the Chinese custom? A. No; Mohammedan."

There is also attached to the return, and a part of the record, a letter from the husband, of subsequent date, but, being introduced, shows that the marriage was a secret marriage, in that the participants went to Canton, and were married without the knowledge of their friends, in a Mohammedan mosque. "Only a scrap of paper was given as proof of marriage. written in Sanskrit. gave us that when we asked for proof. The reason for the secret marriage is because the parents of the husband did not want him to get married until he had graduated from the medical college, in which he was a student.

It was The priest

Fred H. Lysons, of Seattle, Wash., for petitioner.