Reisterer v. Lee Sum
| Decision Date | 01 March 1899 |
| Docket Number | 105. |
| Citation | 94 F. 343 |
| Parties | REISTERER v. LEE SUM. |
| Court | U.S. Court of Appeals — Second Circuit |
Chas A. Brown, for plaintiff in error.
Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.
This is a writ of error by the defendant in the court below to review a judgment for the plaintiff entered upon a verdict. The action was for malicious prosecution and false imprisonment. The plaintiff was a Chinese laborer employed in September 1897, in a laundry at Tonawanda, and the defendant was an officer of the customs at that place. On September 17, 1897 the defendant arrested the plaintiff, and took him before a United States commissioner within the district; assuming to do so conformably to the provisions of the Chinese exclusion act. That act provides that all Chinese laborers entitled to remain in the United States shall apply to the collector of internal revenue of their respective districts for a certificate of residence, and that, if they shall be found within the United States without such certificate, they shall be deemed to be unlawfully within the United States, and may be arrested by any United States customs official, and taken before a United States commissioner, whose duty it shall be to order that such Chinaman be deported from the United States. The act also provides that the certificate shall contain the name, age, local residence, occupation, and such other description of the Chinaman as may be prescribed by the secretary of the treasury. Act May 5, 1892 (27 Stat. 25). The act further provides that any Chinese person arrested under its provisions shall be adjudged to be unlawfully within the United States, unless he shall establish by affirmative proof to the satisfaction of such commissioner his lawful right to remain in the United States. As amended by the act of November 3, 1893, the act provides that a photograph of the Chinaman shall be attached to the certificate, and that a duplicate be attached to a copy of the certificate, and be filed with it in the office of the collector issuing the certificate.
About a week previous to the arrest the defendant visited the laundry where the plaintiff was at work, and asked him to exhibit his certificate. The plaintiff did so, and the defendant examined it and returned it to the plaintiff. September 17th he again called upon the plaintiff, and, after again examining the certificate, took the plaintiff in custody, and went with him before Mr. Collins, his superior officer, to the custom house in Buffalo. Thereafter, by the direction of Mr. Collins, the defendant took the plaintiff before a United States commissioner in Buffalo, and preferred a complaint against him as a Chinese person unlawfully within the United States, and falsely impersonating one to whom a certificate had been issued. The plaintiff was committed to the custody of a United States marshal pending an examination before the commissioner, and after an examination was discharged by the commissioner.
Error is assigned of the refusals of the trial judge (1) to direct a verdict for the defendant upon the cause of action for malicious prosecution; (2) to instruct the jury that the plaintiff had failed to establish a want of probable cause for commencing the prosecution; and (3) to direct a verdict for the defendant upon the ground that the plaintiff had failed to establish a cause of action either for malicious prosecution or for false imprisonment.
It appeared in evidence upon the trial that the certificate produced to the defendant by the plaintiff was issued by the collector of the Third internal revenue district, at New York City, March 31, 1894, and, among other things, recited that the residence of the applicant was at 138 Mott street, New York, that his height was five feet two inches, and that he was without physical marks or peculiarities for identification. The photograph was indistinct. The plaintiff had several scars upon his face, but the photograph did not exhibit any.
When the defendant took the plaintiff before Mr. Collins at the custom house, the latter called in the immigration commissioner of the port and a Chinese interpreter; and the two officers questioned the plaintiff, to ascertain whether he was the person named in the certificate. In answer to their questions he made contradictory statements; saying at one time that when he obtained his certificate he lived on Pell street, in New York, and at another that he lived on Mott street, and stating at one time that the scars were upon his face before he obtained the certificate, and at another that they were not. Upon measuring him he was found to be five feet three inches in height, instead of five feet two inches, as stated in the certificate. It was after this examination that Mr. Collins directed the defendant to take the plaintiff before the commissioner and make the charge against him. The commissioner discharged the plaintiff, after the examination before him,...
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