BARNEY V. CHAPMAN.

(Circuit Court, N. D. Illinois. October, 1884.)

PRACTICE-CA. SA.-EMBEZZLEMENT-ILL. REV. ST. CH. 77, §§ 5, 62-ACTION EX CONTRACTU.

Where a plaintiff waives the tort and sues by action in form ex contractu to recover money wrongfully converted to his own use by defendant, and the record shows that a tort has been actually committed, he is entitled, under the Illinois statute, to a ca. sa. or execution against the body of defendant, notwithstanding the form of action adopted.

Motion to Quash ca. sa.

E. F. Bull, for plaintiff.
C. Bentley, for defendant.

BLODGETT, J. This is a motion to quash a ca. sa, issued against the defendant, and by which he is now under arrest, in custody of the marshal of this district. This ca. sa. is issued on a judgment rendered March 27, 1880, for $14,000 and costs. The motion is predicated upon the ground that no execution was issued upon this judgment against the property of the defendant prior to the issue of the ca. sa., and no demand was made that he surrender his property in satisfaction of the judgment, and also that no affidavit of the issuing of the execution and the demand for the surrender of property under it, and charging defendant with fraud in withholding or concealing his property, was made prior to the issue of the ca. sa. The plaintiff, in answer to the motion, says the record shows this was not such a case as required the preliminary issue of an execution or the filing of an affidavit before a ca. sa. could issue, and that, therefore, the affidavit, which was in fact filed before the issue of the ca. sa., but did not show the issue of an execution and demand for surrender of property under it, was entirely unnecessary, and that the plaintiff had a right to the ca. sa. in the first instance. Section 5, c. 77, Rev. St., reads as follows:

"No execution shall issue against the body of a defendant except when a judgment shall have been obtained for a tort committed by such defendant, or unless the defendant shall have been held to bail upon a writ of capias ad satisfaciendum, as provided by law, or he shall refuse to deliver up his estate for the benefit of his creditors."

The fair construction of this section, I think, is this: There are three cases made in which a ca. sa. or execution against the body may issue: First, where the judgment is rendered for a tort committed by the defendant; second, where the defendant shall have been held to bail on a capias ad respondendum; and, third, where he shall have refused to deliver up his estate for the benefit of his creditors. And section 62 of the same chapter provides specifically for the last case, where an execution shall have been issued on a judgment and demand made for the surrender of the property of the defendant on execution, and a refusal when an affidavit shall be filed

setting forth these facts, and also that the defendant has property with which to satisfy the execution which he unjustly refuses to surrender, or has conveyed or concealed the same with intent to defraud his creditors, etc. Then a ca. sa. may issue upon an order of the judge of the court in which the judgment was rendered; that is, facts showing fraud must be set out in the affidavit to the satisfaction of the judge or other officer whose duty it is to order a ca. sa. in a proper case made out. The cause of action shown by the record in this case is, briefly, that defendant was an agent of the United States Express Company at La Salle, in this state, and that, as such agent, a package containing $14,000 came into his hands to be delivered to the Mathesen & Ziegler Zinc Company, at that place, and that instead of so delivering said money to the consignes, defendant converted the same to his own use. The declaration contains two counts somewhat varying the allegations, but the substance of the declaration was as I have stated.

The action is in form ex contractu. The plea was the general issue, upon which issue was joined, and upon trial before a jury a verdict was found in favor of the plaintiff. We may therefore say that the defendant stands upon the records of the case as convicted of the charge of having converted plaintiff's money to his own use. The issue so made has been tried by a jury, defendant found guilty, and judgment rendered. While the action is in form ex contractu, the gravamen and gist of the action is a tort clearly set out by the averments in the declaration, and the only question is whether the plaintiff has waived the right of proceeding in the first instance against the body of the defendant by having brought this action in form ex contractu. In a case such as is made by this declaration, the right to sue in form ex contractu arises from the principle that the law will presume a promise by the defendant to pay to the plaintiff any money he may have, belonging to the plaintiff, which he ought not in conscience to retain; but the allegation of a promise to pay by the defendant is a pure fiction; the right of action arises from the tort stated, and not from the promise averred. The language of the statute is: "No execution shall issue against the body of the defendant except when the judgment shall have been obtained for a tort committed by such defendant." It does not say the plaintiff must necessarily pursue the form of an ex delicto action in order to entitle him to an execution against the body of the defendant, if it appears. on the record, and has been adjudged against him, that the real right of action was for a tort committed by the defendant.

It seems to me that the record in this case shows the judgment to have been rendered for a tort committed by the defendant, and that no issue of execution and demand of property thereon, and affidavit showing fraud, were necessary as conditions precedent to the issue of the ca. sa. The court can see, from an inspection of the record, that a wrong has been committed, that an embezzlement has been perpe

trated, that entitled the plaintiff to the remedies in case of tort. It seems to me, therefore, that plaintiff having brought his suit in form ex contractu, does not deprive him of the process on his judgment which the law says he is cntitled to for a tort committed by the defendant.

The motion to quash is overruled.

THE CITIZENSHIP OF A PERSON BORN IN THE UNITED STATES OF CHINESE PARENTS.

In re LOOK TIN SING, on Habeas Corpus.

(Circuit Court, D. California. September 29, 1884.)

1. CITIZENSHIP OF PERSONS BORN IN THE UNITED STATES OF CHINESE PARENTS. A person born within the United States, of Chinese parents residing therein, and not engaged in any diplomatic or official capacity under the emperor of China, is a citizen of the United States.

2. CONSTRUCTION OF WORDS "SUBJECT TO JURISDICTION THEREOF, " IN FIRST CLAUSE OF SECTION 1 OF THE FOURTEENTH AMENDMENT TO THE CONSTITUTION.

Persons are subject to the jurisdiction of the United States who are within their dominions and under the protection of their laws, with the consequent obligation to obey them when obedience can be rendered; but only those who are thus subject by their birth or naturalization are within the terms of the amendment. The jurisdiction over these latter must, at the time, be both actual and exclusive. Persons excepted from citizenship, notwithstanding their birth or naturalization in the United States.

3. ORIGIN OF THE CLAUSE IN THE AMENDMENT DECLARING WHO ARE CITIZENS OF THE UNITED STATES.

Previous to this amendment the general doctrine, except as applied to Africans brought here and sold as slaves, and their descendants, was that birth within the dominions and jurisdiction of the United States of itself created citizenship. The amendment was adopted as an authoritative declaration of this doctrine as to the white race, and also to do away with the exception as to Africans and their descendants.

4. THE RESTRICTION ACTS NOT APPLICABLE TO CITIZENS.

The acts of congress of 1882 and 1884, restricting the immigration of Chinese laborers to the United States, are not applicable to citizens of the United States, though of Chinese parentage. No citizen can be excluded from the United States except in punishment for crime.

On Habeas Corpus.

T. D. Riordan and William M. Stewart, for petitioner.

S. G. Hilborn, U. S. Atty., Carroll Cook, Asst. U. S. Atty., and John N. Pomeroy, for the United States.

Before FIELD, Justice, and SAWYER and SABIN, JJ.1

FIELD, Justice. The petitioner belongs to the Chinese race, but he was born in Mendocino, in the state of California, in 1870. In 1879

1Judge HOFFMAN did not sit on the hearing of this case, but he was on the bench when the opinion was delivered, and concurred in the views expressed.

he went to China, and returned to the port of San Francisco during the present month, (September, 1884,) and now seeks to land, claiming the right to do so as a natural-born citizen of the United States. It is admitted by an agreed statement of facts that his parents are now residing in Mendocino, in California, and have resided there for the last 20 years; that they are of the Chinese race, and have always been subjects of the emperor of China; that his father sent the petitioner to China, but with the intention that he should return to this country; that the father is a merchant at Mendocino, and is not here in any diplomatic or other official capacity under the emperor of China. The petitioner is without any certificate under the act of 1882 or of 1884, and the district attorney of the United States, intervening for the government, objects to his landing for the want of such certificate.

The first section of the fourteenth amendment to the constitution declares that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside." This language would seem to be sufficiently broad to cover the case of the petitioner. He is a person born in the United States. Any doubt on the subject, if there can be any, must arise out of the words “subject to the jurisdiction thereof." They alone are subject to the jurisdiction of the United States who are within their dominions and under the protection of their laws, and with the consequent obligation to obey them when obedience can be rendered; and only those thus subject by their birth or naturalization are within the terms of the amendment. The jurisdiction over these latter must, at the time, be both actual and exclusive. The words mentioned except from citizenship children born in the United States of persons engaged in the diplomatic service of foreign governments, such as ministers and ambassadors, whose residence, by a fiction of public law, is regarded as part of their own country. This ex-territoriality of their residence secures to their children born here all the rights and privileges which would inure to them had they been born in the country of their parents. Persons born on a public vessel of a foreign country, while within the waters of the United States, and consequently within their territorial jurisdiction, are also excepted. They are considered as born in the country to which the vessel belongs. In the sense of public law, they are not born within the jurisdiction of the United States. The language used has also a more extended purpose. It was designed to except from citizenship persons who, though born or naturalized in the United States, have renounced their allegiance to our government, and thus dissolved their political connection with the country. The United States recognize the right of every one to expatriate himself and choose another country. This right would seem to follow from the greater right proclaimed to the world in the memorable document in which the American colonies declared their independence

and separation from the British crown, as belonging to every human being, God-given and inalienable,-the right to pursue his own happiness. The English doctrine of perpetual and unchangeable allegiance to the government of one's birth, attending the subject wherever he goes, has never taken root in this country, although there are judicial dicta that a citizen cannot renounce his allegiance to the United States without the permission of the government under regulations prescribed by law; and this would seem to have been the opinion of Chancellor KENT when he published his Commentaries. But a different doctrine prevails now. The naturalization laws have always proceeded upon the theory that any one can change his home and allegiance without the consent of his government; and we adopt as citizens those belonging to our race who, coming from other lands, manifest attachment to our institutions, and desire to be incorporated with us. So profoundly convinced are we of the right of these immigrants from other countries to change their residence and allegiance, that, as soon as they are naturalized, they are deemed entitled with the native-born to all the protection which the government can extend to them, wherever they may be, at home or abroad. And the same right which we accord to them to become citizens here, is accorded to them as well as to the native-born, to transfer their allegiance from our government to that of other states.

In an opinion of Atty. Gen. Black, in the case of a native Bavarian, who came to this country, and, after being naturalized, returned to Bavaria, and desired to resume his status as a Bavarian, this doctrine is maintained. "There is," he says, "no statute or other law of the United States which prevents either a native or naturalized citizen from severing his political connection with this government, if he sees proper to do so in time of peace, and for a purpose not directly injurious to the interests of the country. There is no mode of renunciation prescribed. In my opinion, if he emigrates, carries his family and effects with him, manifests a plain intention not to return, takes up his permanent residence abroad, and assumes the obligation of a subject to a foreign government, this would imply a dissolution of his previous relations with the United States, and I do not think we could or would afterwards claim from him any of the duties of a citizen." 9 Op. Attys. Gen. 62. The doctrine thus stated has long been received in the United States as a settled rule of public law; and in the treaty of 1868, between China and this country, the right of man to change his home and allegiance is recognized as "inherent and inalienable." 16 St. p. 740, art. 5. And in the recital of an act of congress, passed nearly at the same time with the signing of the treaty, this right is assumed to be "a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness;" and in the body of the act, "any declaration, instruction, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or ques