Opinion of the Court.

domiciled in a country other than their own, acquire rights and must discharge duties in many respects the same as possessed by and imposed upon the citizens of that country, and no restriction on the footing upon which such persons stand by reason of their domicil of choice, or commercial domicil, is to be presumed; while by our treaty with China, Chinese merchants domiciled in the United States, have, and are entitled to exercise, the right of free egress and ingress, and all other rights, privileges and immunities enjoyed in this country by the citizens or subjects of the "most favored nation."

There can be no doubt, as was said by Mr. Justice Harlan, speaking for the court in Chew Heong v. United States, 112 U. S. 536, 549, that "since the purpose avowed in the act was to faithfully execute the treaty, any interpretation of its provisions would be rejected which imputed to Congress an intention to disregard the plighted faith of the government, and, consequently, the court ought, if possible, to adopt that construction which recognized and saved rights secured by the treaty."

Tested by this rule it is impossible to hold that this section was intended to prohibit or prevent Chinese merchants, having a commercial domicil here, from leaving the country for temporary purposes and then returning to and reëntering it, and yet such would be its effect, if construed as contended for on behalf of appellee.

In the case of Ah Ping, 23 Fed. Rep. 329, 330, it was held that the section did not apply to Chinese subjects, residents of the United States, departing for temporary purposes of business or pleasure; and the late Judge Sawyer delivering the opinion of the court said: "As to those domiciled in foreign countries, there is no ready means in this country for their identification. In the countries whence they propose to come, the means of ascertaining the facts are at hand; hence the provision. As to those resident or domiciled in this country, we have ourselves the best means of identification; while as to many of them, even in their native country, and much less when they are temporarily in other foreign countries, there is no practicable means of either identification, or for procuring

Opinion of the Court.

the certificate prescribed. The United States statutes do not now, nor have they ever, required or provided for the issue of any certificate in this country to resident Chinese, other than laborers, who are about to depart temporarily, for business or pleasure, either to China or other foreign countries. There are many Chinese merchants in California who have been domiciled in the State from 20 to 35 years. Our own means of identification of such persons are greatly superior to those of any other country, even that of their nativity. To require such parties, every time they go to another country, to perform the required acts abroad, would be utterly impracticable, and practically tantamount to an absolute refusal to permit their return."

The question has been ruled in the same way by the Treasury Department on many occasions; by Secretary Folger, March 14, 1884, Syn. T. D. 1884, 128; by Secretary Gresham, September 25, 1884, Id. 400; by Secretary McCulloch, January 14, 1885, Id. 1885, 26; by Assistant Secretary French, December 2, 1884; by Assistant Secretary Maynard, November 7, 1888; and by Acting. Secretary Batcheller, in the instructions of July 3, 1890, already given.

No other rule in this respect was laid down by Congress in the act of September 13, 1888, 25 Stat. 476, c. 1015, nor in that of October 1, 1888, 25 Stat. 504, c. 1064, when the absolute exclusion of Chinese laborers was prescribed. Chinese Exclusion Case, 130 U. S. 581.

We are of opinion that it was not intended that commercial domicil should be forfeited by temporary absence at the domicil of origin, nor that resident merchants should be subjected to loss of rights guaranteed by treaty, if they failed to produce from the domicil of origin that evidence which residence in the domicil of choice may have rendered it difficult if not impossible to obtain; and as we said in considering the application of this petitioner for the writ of certiorari, 141 U. S. 583, 588, we do not think that the decision of this court in Wan Shing v. United States, 140 U. S. 424, ruled anything to the contrary of the conclusions herein expressed. As there pointed out, Wan Shing was not a merchant, but a laborer; he had

Syllabus.

acquired no commercial domicil in this country: and whatever domicil he had acquired, if any, he had forfeited by departure and absence for seven years with no apparent intention of returning. All the circumstances rendered it possible for him to procure and produce the specified certificate and required him to do so. We have no doubt of the correctness of the judgment then rendered and the reasons given in its support. As Lau Ow Bew is, in our opinion, unlawfully restrained of his liberty, we reverse the judgment of the Circuit Court of Appeals for the Ninth Circuit, and, as required by § 10 of the act of March 3, 1891, remand the cause to the Circuit Court of the United States for the Northern District of California, with directions to reverse its judgment and discharge the petitioner.

BUTLER v. NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS.

This action was brought by the defendant in error as plaintiff below against the plaintiff in error, defendant below, to recover a balance alleged to be due from him to the plaintiff below as its treasurer. The defendant below denied that any sum was due, and set up an accord and satisfaction. At the trial, after the plaintiff rested, the defendant opened his case at length setting forth the grounds of his defence. After some evidence had been introduced, including the books of account and the evidence of a witness who kept those books, a conversation took place between the court and the defendant respecting the introduction of evidence alleged by the court to be outside of the statements made in the opening. The defendant insisted that the evidence offered was within those statements. A further conversation resulted in the defendant's offering to show that all the moneys ever received by him as treasurer were duly accounted for and paid over. The court held this to be a mixed proposition of law and fact, and therefore not to be proved by witnesses or other evidence;

Opinion of the Court..

and, having excluded it, charged the jury that the question at issue was a book-keeper's puzzle or problem, which must be solved in favor of the plaintiff, although nothing had occurred in the testimony which reflected in the slightest degree upon the integrity or honesty or upright conduct of anybody who was concerned or had at any time been concerned in the transaction. Held,

(1) That under the rule laid down in Oscanyan v. Arms Co., 103 U. S. 261, it was competent for the court, if, assuming all the statements and claims made in the defendant's opening with all explanations and qualifications to be true, he had no case, to direct a verdict for the plaintiff; but

(2) That he should have been allowed, especially in view of the statement that there was no imputation upon his integrity or honesty, to offer proof to show that he had accounted for and paid over the money for which he was sued; and that if the proof, when offered, did not tend in law to establish those facts, it could have been excluded.

THE case is stated in the opinion.

Mr. E. M. Johnson and Mr. Benjamin F. Butler in person for plaintiff in error.

Mr. Assistant Attorney General Maury for defendant in

error.

MR. JUSTICE HARLAN delivered the opinion of the court:

The National Home for Disabled Volunteer Soldiers, a corporation existing under the laws of the United States, brought this action against the plaintiff in error in the Supreme Judicial Court of Massachusetts to recover the sum of $15,000 with interest from November 20, 1879.

The defendant denied each allegation in the declaration contained, and, also, averred that he had paid the plaintiff in full all sums he ever owed it, due accord and satisfaction having been made. He filed, in addition, a declaration in set-off, stating that he was directed by the Board of Managers and Directors of the Home to act as its treasurer, which it was not his official duty to do; that he continued to act in that capacity until the expiration of his term of office as a Manager; that

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his service as such treasurer was very onerous and responsible, he having collected, invested, reinvested, taken charge of and paid out, very large sums of money, in the aggregate more than ten millions of dollars, and kept the records and accounts and examined the vouchers thereof; and that he was relieved from that duty and service at his own request after ceasing to be a member of the Board. He claimed just and proper compensation for his services in that behalf.

Upon the petition of the defendant the case was removed for trial into the Circuit Court of the United States upon the ground that the plaintiff was a corporation created by an act of Congress, and the suit was, therefore, one arising under the laws of the United States. 18 Stat. 471, c. 137; Pacific Railroad Removal Cases, 115 U. S. 1.

After the removal of the cause the plaintiff filed an answer to the declaration in set-off, denying that the defendant had any legal claim for services as acting treasurer or otherwise, and averring that there never was any agreement or understanding between the Board of Managers and the defendant that the latter should receive compensation for services rendered or to be rendered, or duties performed or to be performed, by him in connection with the Home; that no salary or other compensation therefor was ever determined or fixed by the Board; and that the defendant never made any claim or demand upon the plaintiff for compensation for such services prior to the filing of his declaration in set-off.

The evidence on behalf of the plaintiff tended to show the following facts: The defendant, as acting treasurer of the Home, paid, May 7, 1879, to William S. Tilton, Manager of the Eastern Branch Home, the sum of $15,000 to be used for the purchase of leather for the manufacture of boots and shoes at the Eastern Branch, and charged the same as so paid out in his accounts. In payment of that advance Tilton, October 13, 1879, sent to Butler a sight draft for $9838, drawn by the latter on his financial agent and book-keeper, George J. Carney, payable to the order of Pitkin & Thomas, and sent by the defendant, as acting treasurer, to that firm in payment for clothing furnished by it to the Home. Pitkin & Thomas en