to the amount of evidence that ought to be produced in behalf of a person of Chinese descent, in one of these deportation cases, in order that the requirement of the statute that the court should be satisfied might be had, and I see no reason to depart from the views there announced. The burden, I believe, is placed by the statute upon the defendant, and he must by the evidence adduced in his behalf 'satisfy' the court-i. e., produce moral certainty or conviction (C. C. P. § 1835)-of the truthfulness of his claim (186 U. S. 193 [22 Sup. Ct. 891, 46 L. Ed. 1121])."

The previous opinion of the learned judge thus referred to by him is printed in the brief of the attorney for the government, where he says, among other things:

"In this connection I am perfectly free to admit that with me there is always a good deal of dubiousness about the testimony of Chinamen in any case. Experience has shown that many of them have little, if any, regard for an oath administered to them in a court of justice in our country; and experience has shown that Chinese, in their relations among themselves and for the purpose of protecting one another in various ways and exigencies, think it is not at all beyond their province to color, if not actually to manufacture, their testimony, in that a given end may be accomplished thereby, and the mere fact that a Chinaman testifies to a thing does not, in my mind, because of my experience in such matters, prove to me that the fact is as testified to. It needs to be measured with the probabilities and improbabilities; it needs to be considered in relation to the interest of the Chinaman thus to testify and the reasons why it might be to his interest to testify one way as opposed to another-all of the time taking into consideration the fact, which I believe to exist, as it is commonly known and understood among those whose duty it is to administer and construe the laws, and who have to do with courts of justice, that the Chinese, as a race, when called upon in a matter in which Chinese are vitally interested, are disposed to be very free in their statements upon the witness stand."

[2] We are unable to approve the views thus expressed. To the contrary, this court said in the case of Woey Ho v. United States, 109 Fed. 888, 48 C. C. A. 705:

"A court is not at liberty to arbitrarily and without reason reject or discredit the testimony of a witness upon the ground that he is a Chinaman, an Indian, a negro, or a white man. All people, without regard to their race, color, creed, or country, whether rich or poor, stand equal before the law. It is the duty of the courts to exercise their best judgment, not their will, whim, or caprice, in passing upon the credibility of every witness. The question whether a witness is credible must ordinarily be determined by the tribunal before whom the witness appears, and in the decision of which that tribunal must necessarily be vested with a very wide discretion, In weighing the scales, the conduct, manner, and appearance of the witness, as seen by that tribunal, often forms an important factor in enabling courts, as well as juries, to determine whether or not the witness is entitled to credit."

We see but little, if any, force in the circumstances or inconsistencies. in the evidence referred to in the opinion of the court below. One of those circumstances is that, when the appellant was examined before the commissioner of the court, he was shown a photograph, and was asked whether he recognized it as a picture of any one he knew, to which his answer was, "No." On a subsequent examination before the court, the same photograph was shown the witness, when he said:

"This looks more like my father, a resemblance to my father's picture, but it is not in the other one. Q. You say this is a different picture, then, than was shown to you in the hearing before Mr. Williams, the commissioner? A. It don't appear to me to be the same. Q. That picture didn't look like your

father looked when you saw him in Boston after you went down from Burlington, Vt.-the picture that was shown to you before the commissioner? A. No. Q. And this picture does look like your father looked at that time? A. There was some resemblance of my father, but not exactly. Q. This? A. Yes. Q. Ask him how his father differed from that in appearance. A. He was not so fleshy at that time."

Another of the inconsistencies referred to by the trial court is that, when the appellant arrived at Vancouver, in December, 1897, his name was asked by the Chinese interpreter, and later he stated that it was not; that his ticket was purchased at Hong Kong through to Boston, which ticket he showed at Vancouver, and afterwards that the ticket. was purchased only to Montreal, and that his ticket from Montreal to Boston was furnished him by his father.

When it is remembered that all of those matters occurred nearly 20 years ago, we think that such inconsistencies are of but little moment. So, too, as respects the appellant's recollection of the personal appearance of the commissioner before whom he claims to have been examined and discharged in Vermont in 1898. The further circumstances, referred to by the court below, that when the appellant was arrested in Los Angeles he claimed to have a "native paper," may, we think, in view of the record in the case, be well taken to mean the order for his discharge made by the commissioner in Vermont. The only other circumstance referred to in the opinion of the court as being against the appellant grows out of the testimony of the witness Jolliffe, whose testimony was of such a character as to throw no light respecting the truth of the appellant's claim. Looking at the entire record, we are of the opinion that it is sufficient to show that the appellant is a nativeborn citizen of the United States, as claimed by him.

Accordingly, the judgment is reversed, and the cause remanded, with directions to the court below to direct his discharge.

GLEN MARY COAL & COKE CO. v. WOLFE et al.

(Circuit Court of Appeals, Sixth Circuit. June 5, 1917.)

No. 2969.

1. ADVERSE POSSESSION 103-CONFLICTING POSSESSION BY ADJOINING OWN

ERS.

Where defendant, owning a tract of land known as tract 1931, had possession for over 30 years of a strip which theoretically was a part of tract 1935, adjoining tract 1931 on the south, the claimed constructive possession of the owners of tract 1935 did not create a conflicting possession, defeating defendant's title, under Shannon's Code Tenn. § 4456, under which adverse possession under a deed for more than 7 years gives an indefeasible title.

[Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 500-594.]

2. EJECTMENT 165 JUDGMENT CONSTRUCTION-MATTERS EXCLUDED FROM DETI MINATION.

In a combined ejectment suit and bill to remove a cloud, in which it was sought to establish the title to coal underlying the land, plaintiff For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

claimed title to the whole of a tract known as tract 1935. The G. Company, owning tract 1931, adjoining tract 1935 on the north, filed an answer alleging that it was the owner of certain specified tracts, one of which was described merely as "entry 1931." The decree found in favor of the G. Company as to four parcels, and then awarded to plaintiff all other land within his boundaries, but then expressly provided that, as to other lands claimed by the G. Company within such boundaries, it was not intended to make any adjudication whatever. The G. Company was in possession of a strip, on the boundary of the two tracts, which was theoretically a part of tract 1935. Held that, while there was testimony that the exception in the decree as to lands claimed by the G. Company was intended to reach parcels actually claimed, but not described and claimed in the answer, it was not necessary to resort to such testimony 'to exclude the strip on the boundary, as the reference to tract 1931 had no possible pertinence, unless it referred to this strip.

[Ed. Note.-For other cases, see Ejectment, Cent. Dig. § 547.]

3. EJECTMENT 165-EQUITABLE EJECTMENT-DECREE-INCONSISTENT PRO

VISIONS.

The inconsistency between the broad terms of the decree in favor of plaintiff and the specific provisions excluding lands claimed by the G. Company did not deprive such specific provisions of full effect, as the inference was that the draftsman of the decree by mistake had made it too inclusive and later corrected it, especially where this inference was confirmed by testimony that by agreement all parcels except four were withdrawn from the case, that in the lower courts plaintiffs made no claim of title to them, that such claim or title was first urged in the Supreme Court by new counsel not familiar with the agreement, that the Supreme Court, in ignorance of the agreement, approved this claim, and that as soon as this came to the attention of the former counsel it was corrected by inserting in the decree the provision excepting from its operation the tracts claimed by the G. Company other than those specifically adjudicated.

[Ed. Note. For other cases, see Ejectment, Cent. Dig. § 547.]

Appeal from the District Court of the United States for the Eastern District of Tennessee; John E. McCall, Judge.

Suit by Edith McBurney Wolfe and others against the Glen Mary Coal & Coke Company. From a decree for plaintiffs, defendant appeals. Reversed and remanded, with instructions.

This case involves the location, in fact or by estoppel, of the boundary line between adjacent tracts of mountain land in Eastern Tennessee. In 1836 Eastland and Lane caused a survey to be made covering a large territory which, by this survey, they divided into rectangular tracts, each 1,000 poles east and west by 894 poles north and south, and each containing between 5,000 and 6,000 acres. Thereupon each tract was separately entered. To understand the present controversy, we need to observe the position only of tracts 1930, 1931, 1934, and 1935. They were adjacent to each other, and were, respectively, northwest, northeast, southwest, and southeast of their common center, which common center is recited as the starting point of entry 1935. By the method adopted, the surveyors actually ran and marked on the ground two north and south lines 2,000 poles apart. These lines formed the western boundary of 1930 and 1934 and the eastern boundary of 1931 and 1935. Upon these lines, at intervals of 894 poles, monuments were actually fixed, usually consisting of marked trees. The intervening north and south line, forming the boundary between 1930 and 1934 on the west and 1931 and 1935 on the east, and the east and west lines, one of which formed the boundary between 1931 on the north and 1935 on the south, were not actually surveyed, but each entry corner thereon was called for on the survey as "a stake and pointers."

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

As early

For present purposes, it is sufficient to state that the land in controversy 1 is a strip 1,000 poles long east and west and 99 poles wide north and south, and constitutes the northerly 99 poles of entry 1935, if the line between 1931 and 1935 is located as it theoretically should be according to the starting point of 1935, as fixed by its entry recitals; while, if in any sufficient way this dividing line was or has become fixed and established 99 poles south of such theoretical location, this strip of land is a part of 1931. So far as affects this parcel, Samuel McBurney, in his lifetime, had the paper title to 1935, and the Glen Mary Company, since 1881, has had the paper title to 1931. as 1870 (probably much earlier) the more southerly of these two lines had been run and marked, by some one, and had become known as the "Gall Line." In 1913 this line had been recognized by the community for 40 years as the dividing line between 1931 and 1935; no other line between those entries had been marked or run prior to this controversy; many deeds, including two by McBurney, which intended to call for this dividing line, and approaching it from both sides, had called in terms for the Gall line; and the Glen Mary Company's deed, in 1881, clearly fixed the Gall line as its southern boundary. Continuously, after 1881, the Glen Mary Company was in possession of this strip, by buildings and improvements thereon, and during a great part of the time had been actually mining coal therefrom. For the reasons to be stated, it is immaterial how this Gall line came into existence, although its probable origin may be inferred. 1931, like 1935, had its starting point and its west boundary in an ideal location upon an ideal line. 2 Neither its northwest nor its southwest corner was in fact marked and located. Its east boundary, however, was upon a line which was surveyed, and its southeast corner, like the northeast corner of 1935, consisted of "a hickory in a hollow." Obviously, if the fixed and marked monuments called for along the east boundaries of these entries conflict with the ideal monuments upon the west boundaries, the former must prevail. The testimony tends to show that the Gall line was run from or to the "hickory in the hollow," since its east end is in a hollow and the east end of the line 99 poles north is on a hill. Under these conditions, it cannot be certain that the Gall line may not be the one which ought to prevail, regardless of all matters of recognition and possession.

In 1903 McBurney commenced, in the proper state court of Tennessee, a suit which, under the Tennessee practice, was treated as a proceeding in equity, but was a combined ejectment suit and bill to remove cloud, save that it sought only the establishment of title to and the recovery of possession of the coal underlying the land, and not of the surface. By his initial pleading he claimed title to the entire section 1935, describing it in the words of the entry, but "excluding the coal or mineral under the lands of this boundary known as the Elisha Chaney lands and owned by the defendant the Glen Mary Coal & Coke Company." He made defendants the Glen Mary Company, Carson and Foster, Diden, Young, and the Bartholomews. The Glen Mary Company filed an answer, denying McBurney's title, and alleging that "defendant is the owner and in the possession of the following tracts of land." Here followed descriptions, by metes and bounds, of 10 tracts, each of them under a heading "First Tract," "Second Tract," etc., and which 10 tracts covered a total of about 1,740 acres. The answer then proceeds: "Eleventh Tract: Being entry No. 1931. Twelfth Tract: Being entry No. 1934." Here the answer abruptly stops, without signature or further allegation. The chancery court dismissed McBurney's bill entirely. He appealed to the Court of Chancery Appeals, which affirmed; he then appealed to the Supreme Court of Tennessee,

The bill claims the entire of 1935, with certain exceptions. The answer claims title in the Glen Mary Company to many parcels within 1935, and in addition to the 99-pole strip, and the decree might seem to cover some of the other parcels so claimed by defendant; but this 99-pole parcel is the only one to which the testimony is directed. A journal entry recites that the parties in open court agreed that it was the only matter in controversy, and the briefs in this court treat the case in the same way.

We use the word "ideal" in the sense that seems to be common in litigation regarding boundaries of grants in Kentucky and Tennessee, viz., in contradistinction to actual, and as referring to lines or points existing only in the surveyor's notes, and not located by him upon the ground.

which discussed the case in an opinion reported in 121 Tenn. 304, 118 S. W. 694. This opinion shows that the Supreme Court thought McBurney should have had a decree for all lands within his boundary which the Glen Mary Company did not, by its answer, claim, and so directed a decree accordingly, but added, in substance, that, since McBurney had not brought any such claim to the attention of the court below, costs would be awarded against him. The parties were represented in the Supreme Court by other counsel than those who had appeared below, but after a decree, awarding to McBurney all lands within 1935 with specified exceptions, had been prepared, it came to the attention of counsel who had represented the Glen Mary Company below. He testified in this, the instant case, and it is not disputed, that at the taking of the testimony in the chancery court he gave notice that he intended to amend the answer by adding other tracts than the 12 within the boundary sued for, to which other tracts the Glen Mary Company then claimed title, and it was then agreed between all counsel that the litigation between McBurney and the Glen Mary Company should be confined to a certain number (perhaps 4) out of the 12 tracts specified in the answer, and that, as to the remainder, no testimony should be taken and no adjudication would be sought. He further testified that, when the case was heard before the chancellor, he furnished to the court a written memorandum showing these 4 (?) tracts, followed by the statement, "While the Glen Mary Coal & Coke Company owns other tracts inside of the boundary sued for, the tracts above referred to are the only ones in litigation," and he says that this statement was, in open court assented to by opposing counsel. He further says that, when he noticed the form of the decree of the Supreme Court, as prepared, he observed that, while it awarded to the Glen Mary Company all of the four tracts which had actually been in controversy, it seemed. by general terms, to award to McBurney all the remaining tracts within the boundary, which tracts were owned or claimed by the Glen Mary Company, and which this agreement had excluded from the litigation. Thereupon, at his request and by the consent of McBurney's counsel, the following paragraph was inserted in the decree and became a part of it as entered: "And it is further ordered, adjudged, and decreed that, as to all other lands claimed by the Glen Mary Coal & Coke Company within the boundaries sued for, no recovery is sought, and the relative rights of the complainant and said Glen Mary Coal & Coke Company are not adjudicated."

This decree was in 1907. Defendant continued in the undisturbed and unquestioned use and possession of the premises until, in December, 1913, McBurney's widow and heir filed, upon the equity side of the court below, a bill of complaint against the Glen Mary Company, in which they prayed that their title be confirmed, and that defendant's title be removed as a cloud, and that plaintiffs be put in possession of the property, and that the defendant account for coal removed. There was, eventually, a final decree accordingly, and after an accounting before a master, an award of damages; and the Glen Mary Company brings this appeal.

W. R. Turner, of Knoxville, Tenn., for appellant.
S. B. Smith, of Chattanooga, Tenn., for appellees.

Before WARRINGTON, MACK, and DENISON, Circuit Judges.

DENISON, Circuit Judge (after stating the facts as above). 1. We pass, without deciding, the question whether the court below, as a court of equity, had jurisdiction of this case in spite of the fact that defendant was in the actual adverse possession. Butterfield v. Miller (C. C. A. 6) 195 Fed. 200, 202, 115 C. C. A. 152. The parties have not raised this question. The recent statute (section 274a, Judicial Code [Act March 3, 1915, c. 90, 38 Stat. 956 (Comp. St. 1916, § 1251a)]) has made it unimportant in matters arising since the statute was passed, and we prefer to dispose of the case upon the merits.