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This book is DUE on last date stamped Ijelow

'JAN 5 1932

EXTRATERRITORIAL CASES

Volume I

INCLUDING

THE DECISIONS OF THE UNITED STATES COURT FOR CHINA

FROM ITS BEGINNING, THOSE REVIEWING THE SAME

BY THE COURT OF APPEALS AND THE

LEADING CASES DECIDED BY OTHER

COURTS ON QUESTIONS OF

EXTRATERRITORIALITY

COMPILED AND EDITED BY

CHARLES SUMNER LOBINGIER, D.C.L., Ph.D.,

Judge of the United States Court for China

47939

MANILA
BUREAU OF PRINTING
1920
14008— O. W.

Dr. JOHN BASSETT MOORE

PUBLICIST. AUTHOR. TEACHER,

THIS VOLUME IS APPRECIATIVELY DEDICATED
IN RECOGNITION OF HIS CON-
TRIBUTIONS TO THE SUB-
JECT OF WHICH IT
TREATS.

EDITOR'S PREFACE.

The need of rendering accessible the decisions of the
United States Court for China, accumulating now for nearly
fourteen years, has long been recognized by the Bar and
others dealing directly with the Court ; but it was not until
1919 that an appropriation was provided for that purpose
and then only $1,000. In 1920 an item of $2,000 was added
to the Court's current expense fund with the understanding
that it should be used for such publication.

There being no one else to assume the task of preparing
the copy and seeing the work thru the press the Editor
undertook it and, as against the deficiencies of the enter-
prise, the reader is asked to bear in mind that the work
was done without expert assistance and in addition to the
heavy demands of growing dockets in what is territorially
the largest district of our Federal Court system.

In selecting cases for publication it has been the aim to
include only those in which a question of law has been
decided or discussed. Opinions of the Court of Appeals,
reviewing on the merits those of the United States Court for
China, have been included while, both for the convenience
of the practitioner and to illustrate, as no other method
can, the evolution of extraterritoriality, the leading, judicial
and other, authorities from elsewhere are reproduced. It
is hoped that the work may be found useful, even by those
not practicing before the United States Court for China, as
a case book on extraterritorial jurisdiction.

The Editor's thanks are due to the Executive OfRce in
Manila for expediting the work in the Philippine Bureau
of Printing and to Mrs. F. H. Stevens of the Philippine
Supreme Court staff for much practical assistance in dif-
ferent stages of the enterprise.

C. S. L.
American Compound,

Shanghai, China,

September 7, 1920.

AMERICAN DIPLOMATIC REPRESENTATIVES EXERCISING
JUDICIAL FUNCTIONS IN CHINA.^

COMMISSIONERS, ETC.

(At Macao.)
Caleb- Gushing Feb. 27, 1844-Aug. 27, 1844.

(At Canton.)

James Biddle, U. S. N Aug. 8, 1845-Apr. 15, 1846.

Peter Parker (Charge) Apr. 15, 1846-Oct. 10, 1846.

A. H. Everett Oct. 10, 1846 (Died) June 28, 1847.

Peter Parker (Charge) June 28, 1847-Aug. 24, 1848.

Com. John W. Davis, U. S. N Aug. 24, 1848-May 25, 1850.

Peter Parker (Charge) May 25, 1850-Jan. 31, 1853-

Humphrey Marshall Jan. 31, 1853-Jan. 27, 1854.

Peter Parker (Charge) Jan. 27, 1854-Apr. 15, 1854.

Robert M. McLane Apr. 15, 1854-Dec. 12, 1854.

Peter Parker (Charge) Dec. 12, 1854-May 10, 1855.

Com. J. Abbott, U. S. N. (Charge) May 10, 1855-Nov. 9, 1855.

S. Wells Williams (Charge) Nov. 9, 1855-Dec. 31, 1855.

Peter Parker Dec. 31, 1855-Aug. 25, 1857.

S. Wells Williams (Charge) Aug. 25, 1857-Nov. 25, 1857.

Thomas B. Reed Nov. 25, 1857-Dec. 8, 1858.

S. Wells Williams (Charge) Dec. 8, 1858-May 18, 1859.

John E. Ward May 18, 1859-Dec. 15, 1860.

Com. C. K. Stribling, U. S. N.

(Charge) Dec. 15, 1860-Oct. 14, 1861.

S. Wells Williams (Charge) Oct. 14, 1861-Oct. 24, 1861.

MINISTERS, ETC.

Anson Burlingame Oct. 24, 1861-Nov. 21, 1867.

(At Peking from July 20, 1862.)

S. Wells Williams (Charge) May 5, 186o-Sept. 19, 1866.

S. Wells Williams (Charge) Nov. 21, 1867-Sept. 29, 1868.

J. R. Browne Sept. 29, 1868-July 5, 1869.

S. Wells Williams (Charge) July 5, 1869-Apr. 20, 1870.

Frederick F. Low Apr. 20, 1870-July 24, 1873.

^ Furnished by the courtesy of Willys R. Peck, Chinese Secretary, American
Legation, Peking.

VI I EXTRATERRITORIAL CASES.

S. Wells Williams (Charge) July 24, 1873-Oct. 28, 1874.

Benj. P. Avery „ Oct. 28, 1874-Nov. 8, 1875.

Chester Holcombe (Charge) Nov. 8, 1875-Jan. 1, 1876.

George F. Seward Jan. 1, 1876-Aug. 16, 1880.

Chester Holcombe (Charge) June 8, 1878-June 19, 1879.

James B. Angell Aug. 16, 1880-Oct. 13, 1881.

Chester Holcombe (Charge) Oct. 13, 1881-Aug. 17, 1882.

John Russel Young Aug. 17, 1882-Apr. 8, 1885.

Enoch J. Smithers (Charge) Apr. 8, 1885-Oct. 1, 1885.

Charles Denby, Sr Oct. 1, 1885-July 10, 1898.

Charles Denby, Jr. (Charge) Mar. 17, 1894-Oct. 27, 1894.

Charles Denby, Jr. (Charge) May 14, 1896-Aug. 1, 1896.

Edwin H. Conger July 10, 1898-Jan. 14, 1905.

H. G. Squiers (Charge) Mar. 11, 1901-Aug. 17, 1901.

John G. Coolidge (Charge) Jan. 14, 1905-June 1, 1905.

W. W. Rockhill June 1, 1905-June 30, 1906.'

^ After this date the Minister ceased to exercise judicial functions.

OFFICERS OF THE UNITED STATES COURT FOR CHINA.

JUDGES.

Lebbeus R. Wilfley, of Missouri 1906-1908.

Rufus H. Thayer, of District of Columbia 1909-1913.

Charles Sumner Lobingier, of Nebraska 1914-

DISTRICT ATTORNEYS.

Arthur Bassett, of Missouri 1906-1910.

Frank E. Hinckley, of California 1910-1915.

Chauncey P. Holcomb, of Delaware 1915-

UNITED STATES COMMISSIONERS.

Nelson E. Lurton, of Missouri 1918-1920 (Aug. 7).

Ferno J. Schuhl, of California Aug. 7, 1920-

CLERKS.

Frank E. Hinckley, of California 1906-1910.

James B. Davies, of Michigan 1911-1913.

Earl B. Rose, of Wisconsin 1914—1918.

William A. Chapman, of Ohio, Acting 1918-1919.

Appointed 1921.

UNITED STATES MARSHALS.

Orvice R. Leonard, of Michigan 1906-1907.

Hubert M. O'Brien, of Michigan 1907-1909.

Daniel A. Wilson, of Michigan 1909-1915.

Paul McRae, of Virginia 1915-1918.

Nelson E. Lurton, of Missouri 1918-

vii

ROLL OF ATTORNEYS.

{Admitted to the Bar of the Court since its organization.)

^ame Date of admission.

Adams, Walter A Jan. 6, 1915.

Allan, A. S April 25, 1913.

Allen, Edgar Pierce * April 2, 1907.

Andrews, Lorrin Jan. 10, 1907.

Austin, Warren Robinson June 22, 1917.

Bassett, Arthur Dec. 17, 1906.

Bible, Frank E Jan. 2, 1920.

Bishop, Crawford M March 5, 1912.

Blume, William W Sept. 29, 1920.

Brooks, Francis M April 20, 1909.

Brown, A. H Jan. 27, 1911.

Browne, James R Oct. 18, 1920.

Bryan, Robert T., Jr May 7, 1917.

Concepcion, Gregorio C April 15, 1920.

Crane, Judson A March 5, 1912.

Curtis, George F July 28, 1909.

Davies, James B Nov. 8, 1912.

Douthitt, E. A Dec. 3, 1907.

Evans, Richard T Oct. 14, 1912.

Faison, Paul F Jan. 12, 1920.

Fessenden, Stirling Jan. 2, 1907.

Fleming, William S April 20, 1907.

Frost, Ralph A : Dec. 3, 1907.

Gibbs, Allison D Oct. 3, 1918.

Gott, Oswald W. Jr * May 27, 1918.

Gullas, Paulino April 15, 1920.

Hadley, Frank W Dec. 15, 1915.

Hartigan, Leonard W Dec. 22, 1920.

Haskell, Roland S Jan. 8, 1918.

Keen, M. L June 23, 1913.

Keen, W. H June 10, 1907.

Hinckley, Frank E Dec. 3, 1907.

Holcomb, C. R * April 20, 1909.

Holcomb, Chauncey P June 3, 1915.

Jernigan, T. R * Jan. 2, 1907.

* Deceased.

X I EXTRATERRITORIAL CASES.

Name. Date of admission.

Kitchin, Edgar M - Feb. 10, 1920.

Krisel, Alexander April 18, 1914.

Linebarger, Paul Myron July 10, 1919.

Lucker, Harry A ^ Aug. 4, 1910.

Lurton, Nelson E „ Dec. 2, 1918.

McCauley, Helen L. L Dec. 11, 1920.

McDonough, Charles A May 15, 1919.

McRae, Paul * June 3, 1915.

Mel, Hua-Chuen _ Feb. 24, 1916.

Paredes, Quintin Feb. 24, 1921.

Perkins, Eugene A Dec. 2, 1918.

Rankin, Charles W Jan. 22, 1915.

Relova, Jose April 15, 1920.

Rice, Joseph W July 14, 1908.

Rodger, H. D Dec. 27, 1912.

Rodgers, W. L Oct. 11, 1910.

Romualdez, Miguel April 15, 1920.

Rose, Earl B April 18, 1914.

Ross, James April 11, 1921.

Rowe, J. Edward, Jr March 23, 1921.

Schoenfeld, John W June 13, 1921.

Schuhl, F. J Dec. 18, 1919.

Schwartzkopf, Sidney C June 22, 1920.

Seavey, Warren A January 31, 1910.

Sharfman, J. L April 4, 1911.

Shoop, Max June 1, 1921.

Simmang, Ernest T „ „ Dec. 8, 1920.

Suntay, Apolonio April 15, 1920.

Sycip, Albino Z Oct. 17, 1916.

Taylor, A. C April 11, 1911.

Thompson, George J June 22, 1916.

Walker, Merle R Feb. 24, 1921.

Weeks, William S „ Nov. 7, 1916.

Williams, F. Henry March 21, 1917.

Yamzon, Victoriano Oct. 16, 1918.

Zankl, M. N March 3, 1917.

* Deceased.

TABLE OF CASES REPORTED.

Page.

Abdul Co. V. Hughes 290

Alford's Adoption, In re 441

Allen V. Allen 499, 533

Allen, United States v 308, 326, 621

Allen, Young John, In re Will of 92

American Food Manufacturing Company, Ltd., In re Petition

for Bankruptcy of 896

American Food Manufacturing Co., King Ping Kee v 735

American Food Mfg. Co., Yao Sui Dong v 869

American Machinery & Export Co., J. Spunt & Co. v 778

American Sales Corporation, Ezra v 954

American Trading Co., Shanghai Tannery Co., Ltd., v 576

American Trading Co., Siao King Kee v 940

American Trading Co., Steele v 964

Anderson, Macdonald v 77

Andrews & George, Nee Chang Mow v 243

Andrews & George, Ying Niang Tze v 725

Antonio, United States v 733

Arkell & Douglas, Kung Che et al. v 884

Arkell & Douglas, Inc., Loo Wei Chong v 884

Arkell & Douglas, Meier & Kaltzoff v 904

Armstrong, United States v ; 349, 485

Arnold, Raigorodetzkaia v 589

Augustin V. Augustin 933

Bahlke v. Brown 340

Barchet, In re Estate of 235

Barkley Company, Inc., Heiman & Co. v 768

Barkley Company, Inc., v Maloney 926

Barkovitch, Katz et al. v 205

Basch, Newman v 469

Bascom, In re Jurisdiction of 378

Bascom, United States v 382

Bassity, In re Estate of 595

Beeks, United States v 520

Bell V. Sauer 240

Bell, In re Will of 893

Bennett V. Brooks 220

xii I EXTRATERRITORIAL CASES.

Papre.

Biddle, In re Will of .'. 887

Biddle, Umted States v 84, 522 n.

Biddle v. United States 120

Blomberg, John Layton Company v 762, 818

Bonnell, In re Will of 647

Boulon, Tarn Wa v 527

Brooks, Bennett v 220

Brooks, Cathay Trust v 256

Brooks V. Irvine, Mead and International Banking Corporation.. 107

Brooks, Shekury v 225

Brown, Bahlke v 340

Brown, Duquesne v 280

Brown v. Sexton 211

Butland, Woosung-Hankow Pilot Association v 270

Cameron v. Williams 509

Canton Christian College, Paget v '. 457

Caravel & Co., Inc., Mercantile Bank of India, Ltd., v 100?

Carver et al, United States v 959

Casdagli v. Casdagli 104

Cathay Trust v. Brooks 256

Cavanagh v. Worden 317, 365

Chang Quai Ching et al. v. Dodge & Seymour 840

Charlesworth, Pilling Co. et al., Secretary of State for Foreign

Affairs v 66

Chiang Zung Match Factory Corporation v. Yek Tong Lin F.

& M. Ins. Co., Limited 200

China Press, Weigel v 354

Chinese-American Co. v. Tenney 756

Connell Brothers Company, Diederichsen & Co. v 297, 33-3

Corrigan, In re Estate of 717

Cunningham, Mather et al. v 136

Cunningham v. Rodgers , : 109

1>.

Dadisman, /?? re Will of 650

Dainese v. Hale 32

Davis, In re Will of 844

Davis v. Tsu Eu Sung 919

Derby, In re Will of 912

Diaz, United States v 784,787,788

Diederichsen & Co., Connell Bros. Co. v 297,333

Dodge & Seymour, Chang Quai Ching et al. v 840

Dodge & Seymour, Sung Kya Yi v 889

Dommer, United States v 914

Donohoe, United States v 347

Duquesne v. Brown 280

CASES REPORTED. xiii

Page.

Edwards v. Graves 167

Endicott, Wong Tsung Wai v 436

Engelbracht, United States v 169

Everett v. Swayne & Hoyt 600, 867

Ezra v. American Sales Corporation 954

Ezra V. Merriman 809 890

Faulkner, United States v I95

Fearon, Daniel & Co., Inc., v. Hall 999 n.

Fernandez, United States v 247

Fernandez, Zee Foh Sung v 956

Fitch, In re Estate of 869

Fobes, In re Assignment of „ 950

Ford V. Macdonell-Chow Corporation 801

Frazar & Company, Steiner v 249

Garland Steamship Company, Schnabel, Gaumer & Co. v 636

George, In re Estate of 935

Ginsburg et al. v. Zimmerman 133

Gouldner, United States v 372

Graves, Edwards v 167

Grimes, United States v 305,451,477

Grimsinger, United States v 282, 286

Gunn V. Gunn .• 836

Hadley, United States v 207

Hager, Rodger v 444

Hale, Dainese v 32

Hall, Fearon, Daniel & Co. v 999 n.

Hankow Consul General's Report, In re 291

Heiman & Co. v. Barkley Company, Inc 768

Hillebrandt v. Zimmerman & Co 88

Honigsberg & Co. v. Jones 991

Honigsberg & Co., Star Garage Co. v 556

Howard, In re Will of 1000

Hsieh Po-hsiang v. Shippers' Commercial Corporation 1010 n.

Huang Mien Chow v. Machinery & Metals Sales Company 808

Hughes, Abdul Co. v 290

Hunter, United States v 629

In re Alford's Adoption 44I

In re Allen's Will 92

In re Assignment of Fobes..... 950

Xiv I EXTRATERRITORIAL CASES.

Page,

In re Barchet's Estate - 235

In re Bassity's Estate 595

In re Bell's Will 893

In re Biddle's Will 887

In re Bonnell's Will 647

In re Coi-rigan's Estate 717

In re Dadisman's Will 650

In re Davis' Will 844

In re Derby's Will 912

In re Fitch's Estate 869

In re George's Estate 935

In re Hankow Consul General's Report 291

In re Howard's Will 1000

In re Jaeger's Estate 722

In re Jurisdiction of Bascom 378

In re Kavanaugh's Will 842

In re Krisel 831, 835 n., 846

In re Landers' Estate 540 n.

In re Lee's Will 699

In re Lucker'^ Will 626

In re Martin's Will 771

In re McGhee's Estate 418

In re Narodezky's Petition 815

In re Noyes' Estate 538

In re Petition for Bankruptcy of American Food Manufactur-
ing Company ., 896

In re Robins' Will 654

In re Ross 40

In re San Juan's Will 937

In re Shanstrom's Will 938

In re Sweet's Will 713

In re Thacher's Will 524

In re Trinidad's Will 894

In re Turner's Will 631

In re Wade's Will 693

In re Werlich's Will 668

In re Wu's Adoption 753

Irvine, Mead and International Banking Corporation, Brooks v.. 107

Israel, Ross v 245

J. Spunt & Co. V. American Machinery & Export Co 778

Jaeger, In re Estate of 722

Japan, Re Consular Jurisdiction in 27

John Layton Company v. Bloraberg 762, 818

Jones, Honigsberg & Co. v 991

CASES REPORTED. XV

Page.

Jones, United States v 154

Jordan, United States v 259

Juvenile Offender, United States v 687

Kaltzoff V. Arkell & Douglas 904

Katz et al. v. Barkovitch 205

Kavanaugh, In re Will of 842

Kilgore, United States v...„ 395

King Ping v. American Food Manufacturing Co.— 735

Krausch (alias Nelson), United States v 786

Krisel, In re 831, 835 n., 846

Kung Che et al. v. Arkell & Douglas 884

Landers, In re Estate of 540 n.

LeClair, United States v 414, 477, 479

Leddy, United States v 547

Lee, In re Will of - 699

Lee Ki-lung, Rex v 351 n.

Leonhardt and Terry, United States v 790

Ling Ah Choy et al. v. Standard Oil Co 561

Loo Wei Chong et al. v. Arkell & Douglas, Inc 884

Low Ping Leung, U. S. v 349 n.

Lucker, In re Will of 626

Lung Chu V. Sino-Americo Trading Corporation 1006

Lunt, United States v 279

Macdonald v. Anderson 77

MacDonell, United States v 680

Macdonell-Chow Corporation, Ford v 801

Machinery & Metals Sales Company, Huang Mien Chow v 808

Maloney, Barkley Company, Inc. v 926

Martin, In re Will of 771

Martin, United States v 549

Mather et al. v. Cunningham 136

McGhee's Estate, In re 418

McRae, U. S. ex rel. Raven et al. v 655

Meier et al. v. Arkell & Douglas 904

Mencarini & Co. v. Thane & Co 980

Mercantile Bank of India, Ltd., v. Caravel & Co., Inc 10.02

Merriman, Ezra v 809, 890

Mitchell V. Mitchell 690

Morse, Wong Vun Kung v 641

14008 O. W. ^ii

XVi I EXTRATERRITORIAL CASES.

Page.

Narodezky, In re Petition of — 815

Nee Chang Mow v. Andrews & George 243

Newman v. Basch 469

Newman's Geselschaft v. Zimmerman 500

Noblston V. Vacuum Oil Company 214

Noyes' Estate, In re 538

Oriental Press v. Robert Dollar Co 989

Osete, United States v 782

Osman, United States v 540

Paget V. Canton Christian College 457

Papayanni et al. v. Russian Steam Navigation & Trading Co.... 12

Price, Sexton v 424

Price V. United States 129

Raigorodetzkaia v. Arnold 589

Rath V. Rath 545

Raven et al., U. S. ex rel. v. McRae 655

Re Consular Jurisdiction in Japan 27

Reid, United States v 666

Rex v. Lee Ki-lung 351 n.

Richards v. Richards 480

Rincon, United States v 619

Robert Dollar Co., Oriental Press v 989

Robert Dollar Company, Sung Ping Sung v 743

Roberts v. Roberts 916

Robins, In re Will of 654

Rodger v. Hager 444

Rodgers, Cunningham v 109

Rohrer, United States v 515

Ross, hi re 40

Ross V. Israel 245

Ross V. Ross 924

Russian Steam Navigation & Trading Co., Papayanni et al. v.... 12

Salsino, United States v 573, 576n.

Sandage, United States v 634

San Juan, In re Will of 937

Sauer, Bell v 240

Schnabel, Gaumer & Co. v. Garland Steamship Company 636

Scogin, United States v 376

Secretary of State for Foreign Affairs v. Charlesworth, Pilling

Co. et al 66

CASES REPORTED. XVii

Page.

Sexton, Brown v 211

Sexton V. Price 424

Sexton V. United States 180

Shanghai Tannery Co., Ltd., v. American Trading Co 576

Shanstrom, In re Will of 938

Shekury v. Brooks 225

Shippers Commercial Corporation, Hsieh Po-hsiang v 1010 n.

Siao King Kee v. American Trading Co 940

Sin Wan Pao Company, United States v 983

Sino-Americo Trading Corporation, Lung Chu v 1006

Spunt & Co., J., V. American Machinery & Export Co... 778

Standard Oil Co., Ling Ah Choy et ah, v 561

Star Garage Co., Ltd., v. Honigsberg & Co 556

Steele v. American Trading Company 964

Steiner v. Frazar & Company 249

Sonico, United States v 671

Suffert, Toeg & Read v 112

Sun Ming-shan v. Viloudaki 263

Sung Kya Yi v. Dodge & Seymour 889

Sung Ping Sung v. Robert Dollar Company 743

Swayne & Hoyt, Everett v 600,867

Tarn Wa v. Boulon 527

Tenney, Chinese-American Co. v 756

Thacher, In re Will of 524

Thane & Co., Mencarini & Co. v 980

Thompson, United States v 261

Toeg & Read v. Suffert 112

Trinidad, hi re Will of .' 894

Tsu Eu Sung, Davis v 919

Turner, In re Will of 631

.United States v. Allen 308,326,621

United States v. Antonio 733

United States v. Armstrong 349, 485

United States v. Bascom 382

United States v. Beeks 520

United States, Biddle v 120

United States v. Biddle 84, 522 n.

United States v. Carver et al 959

United States v. Diaz 784, 787, 788

United States v. Dommer 914

United States v. Donohoe 347

United States v. Engelbracht 169

xviii I EXTRATERRITORIAL CASES.

Page.

United States v. Faulkner 195

United States v. Fernandez 247

United States v, Gouldner 372

United States v. Grimes 305, 451, 477

United States v. Grimsinger , 282, 286

United States v. Hadley 207

United States v. Hunter 629

United States v. Jones 154

United States v. Jordan « 259

United States v. Juvenile Offender 687

United States v. Kilgore - - - 395

United States v. Krausch (alias Nelson) 786

United States v. LeClair „ _ 414, 477, 479

United States v. Leddy „ 547

United States v. Leonhardt and Terry.— 790

United States v. Low Ping Leung 349 n.

United States v. Lunt 279

United States v. MacDonell 680

United States v. Martin - _ 549

United States v. Osete 782

United States v. Osman 540

United States, Price v 129

United States v. Reid 666

United States v. Rincon 619

United States v. Rohrer 515

United States v. Salsino 573, 576 n.

United States v. Sandage 634

United States v. Scogin 376

United States, Sexton v 180

United States v. Sin Wan Pao Company 983

United States v. Sonico 671

United States v. Thompson 261

United States v. Walker 372

United States v. Wallace „ 900

United States v. Williams 518

United States v. Woodward 523 n.

U. S. ex rel. Raven et al. v. McRae 655

Vacuum Oil Company, Noblston v 214

Viloudaki, Sun Ming-shan v 263

Wade, In re Will of 693

Walker, United States v 372

Wallace, United States v 900

Werlich, In re Will of 668

CASES REPORTED. XIX

Page.

Weigel V. China Press 354

Williams, Cameron v 509

Williams, United States v 518

Woodward, U. S. v 523 n.

Wong Tsung Wai v. Endicott 436

Wong Vun Kung v. Morse 641

Woosung-Hankow Pilot Association v. Butland 270

Worden, Cavanagh v 317, 365

Wu, In re Adoption of 753

Yao Sui Dong v. American Food Mfg. Co 869

Yek Tong Lin F. & M. Ins. Co. Limited, Chiang Zung Match

Factory Corporation v 200

Ying Niang Tze v. Andrews & George 725

Zee Foh Sung v. Fernandez 956

Zimmerman, Ginsburg et al. v 133

Zimmerman & Co., Hillebrandt v 88

Zimmerman, Newman's Geselschaft v 500

Zumbrum, Cameron v 509

TABLE OF REFERENCES.

I. CASES.

Page.

A. M. Gilman & Co. v. Cosgrove, 22 Cal., 356 336

Abraham v. Cunningham, 3 Keb. 725, 2 Mod., 146 913

Abd-ul-Messih v. Farra, 13 App. Cases, 431 99, 105

Acton V. Lloyd, 37 N. J. Eq. 5 697

Adams v. Field, 21 Vt., 256 648

Adriano v. De Jesus, 23 Phil., 350 700

Advocate-General of Bengal v. Ranee Surnomoye Dossee, 2

Moore, P. C. Cas. N. S., 60 23

Aeneas MacDonald's Case, Foster's Crown Law, 59 Scott's

Cases on International Law, 370 705

African Association, Ltd., v. Allen, L. J. Rep. (1910), N. S.

LXXIX, 259 (K. B. Div.) 463

Alaska etc. Co. v. Chase, 128 Fed. 886 976

Alaska Gold Mining Co. v. Ebner, 2 Alaska..611, 656, 662, 689, 813, 816

Alder v. Keighly, 15 M. & W., 117 976

Alexander v. Dunn, 5 Ind., 122 751

Alexandra, The, 104 Fed., 904 812

Allen V. Bennett, 3 Taunt. 169 242

Alston V. Davis, 118 N. C, 202, 24 S. E., 15 714

Alston V. Wilson, 44 la. 130 , 972

American China Development Co. v. Boyd, 148 Fed. 258 977

American Dramatic Fund Assoc, v. Lett, 42 N. J. Eq., 43, 6

Atl., 280 697

American Security etc. Co. v. District of Columbia Comrs., 224

U. S., 491, 56 L. ed., 856, 32 Sup. Ct. 553 660

American Security etc. Co. v. Rudolph, 38 App. Cas. (D.

C), 32 660

Ames v. Kansas, 111 U. S., 449, 28 L. ed., 482 880

Anchor Electric Co. v. Hawkes, 171 Mass., 101, 105 N. E., 509,

41 L. R. A., 189, 46 Am. St. Rep., 403 766

Anderson v. State, 104 Ind., 467, 4 N. E., 63 678

Andrews v. Johnston, 7 Col. App., 551, 44 Pac, 73 849

Anonymous, 12 Mod. 559 (1701) 984

Appeal of Knox, 131 Pa., 220, 18 Atl., 1021, 6 L. R. A., 353, 17

Am. St. Rep., 798 715,716

Apperson v. Lazro, 44 Ind. App. 186, 88 N. E., 99 593

xxi

XXil I EXTRATERRITORIAL CASES.

Page.

Argo, The, 2 Wheat, 287, 4 L. ed., 241 812

Armory v. Delamirie, 1 Strange, 505 552

Armour & Co. v. Renaker, 191 Fed. 58, 202 Fed. 901, 904 945

Armstrong v. American Exchange Nat, Bank, 133 U. S., 433,

33 L. ed., 747, 10 Sup. Ct. Rep., 450 643, 646

Armstrong v. Armstrong, 29 Ala., 538 648

Armstrong v. Stokes, L. R. 7 Q. B., 598, 41 L. J. Q. B. 253,

2 Eng. Rul. Cas., 471 602

Armstrong v. Toler, 11 Wheat. (U. S.) 258, 6 L. ed. 468 646

Arrington v. Roper, 3 Tenn. Ch., 572, 574 896

Arthur v. Dodge, 101 U. S. 36, 25 L. ed., 949 404

Ashland etc. Co. v. Shores, 105 Wis., 122, 81 N. W., 136 921

Atlanta Stove Works v. Hamilton, 83 Miss. 704, 35 So. 763 968

Atkyns v. Pearce, 2 C. B. N. S., 763 935

Avakian v. Avakian, 60 Atl. 521 324

Ayer v. Western Union Telegraph Co., 79 Me., 493, 10 Atl., 495.. 588

Bailey V. Holland, 7 App. Cas. (D. C), 189 486

Bailey v. Wayman, 201 Pa., 249, 50 Atl., 767 747,748

Baker v. Baker, 195 Pa., 407, 46 Atl., 96 837

Baker v. Brown, 83 Miss., 793, 36 So., 539 843, 939

Baker v. Chisholm, 3 Tex., 157 879

Baker v. Dobyns, 4 Dana, (Ky.) 220 627

Baker v. Hedgecock, 39 Ch. Div., 520 828

Bancroft v. Union Embossing Co., 72 N. H., 402, 57 Atl., 97,

64 L. R. A., 298 767

Banner Pub. Co. v. State, 16 Lea, (Tenn.) 176, 57 Am. Rep.,

214 987

Barbour v. Shebor, 107 Ala., 304, 58 So., 276 ^ 593

Barclay v. Plant, 50 Ala., 509 880

Barnard v. Backhaus, 52 Wis. 593, 6 N. W. 252, 9 N. W. 595.... 117

Barnes v. Smith, 159 Mass. 244, 34 N. E. 403 231

Barney v. Hays, 11 Mont. 99, 571, 27 Pac, 384, 29 Pac, 282.. 715, 894

Barrameda v. Moir, 25 Philippine, 44 871, 872

Barrow Steamship Company v. Kane, 170 U. S., 100, 42 L.

ed., 964 602,639

Earth v. Makeever, 4 Biss., 206, Fed. Cas., No. 1069 472

Bartle v. Coleman, 4 Pet., (U. S.) 184 644

Basket v. Hassell, 107 U. S., 602, 27 L. ed., 500 108

Baxter v. Card, 59 Fed. 165 946

Beach v. Hancock, 27 N. H. 223, 59 Am. Dec. 373 132

Beard v. Dennis, 6 Ind., 200 829

Beaumont v. Fell, 2 P. Wms., 140 695

Beck V. School District, 54 Colo., 546, 131 Pac, 398 944

Beck etc. Co. v. Houppert, 104 Ala., 503, 16 So., 522 908

REFERENCES. XXlll

_j Page.

Beckner v. Commonwealth, 126 Ky., 318, 31 Ky. L. Reporter

708, 103 S. W. 378 836

Beecher v. Hicks, 7 Lea, (Tenn.) 207 896

Beetham v. Fraser, 21 T. K. R., 8 828

Belgium Decisions of May 12 and Dec. 31, 1877, Jurisprudence,

V, 513 483

Bendet v. Ellis, 120 Tenn., 277, 111 S. W. 795, 18 L. R. A.

(N. S.), 114, 127 Am. St. Rep., 1000 645

Benjamin v. Hillard, 23 How. (U. S.) 149, 16 L. ed., 518.... 976

Benoit v. Miller, (R. I.), 67 Atl. 87 592

Benson v. Henkel, 198 U. S. 1, 49 L. ed., 919 402,404,407

Bettison v. Brompey, 12 East, 250 649

Bird V. Halsey, 87 Fed., 671 812

Birdsong v. Ellis, 62 Miss., 418 805

Bissell V. Gould, 1 Wend. (N. Y.), 210, 19 Am. Dec, 480 361

Bjorklund v. Electric Co., 35 Wash., 439, 77 Pac, 727 908

Blackstock v. N. Y. etc. R. Co., 20 N. Y., 48, 75 Am. Dec, 372.. 607

Blair v. Kingman Implement Co., 82 Neb. 344, 117 N. W. 773.. 945

Blaney v. Blaney, 126 Mass., 205 917

Blizzard v. Applegate, 61 Ind. 368 955

Bluegrass Cordage Co. v. Luthy, 98 Ky. 583, 33 S. W. 835,

17 Ky. L. Rep. 1126 1011

Bly V. Bank, 70 Pa. St., 453 646

Boddie v. Brewing Co. 204 111. 352, 68 N. E., 394 428

Boddington v. Clairat, L. R. 25 Ch. Div., 685 888

Bodeman v. State (Tex. Cr. App.), 40 S. W., 981 623

Bold Buccleugh, The, 7 Moore's P. C. Cases, 267 20

Bongner v. Ziegenheim, 165 Mo. App., 328, 147 S. W., 182.... 593

Booth V. Hodgson, 6 T. R., 405 644

Booth V. Nat. etc Co., 19 R. I., 696, 36 Atl., 714 731

Borderre v. Den, 106 Cal., 594, 39 Pac. 946 346

Bors V. Preston, 111 U. S., 252, 28 L. ed., 419 880

Bort V. McCutcheon, 187 Fed. 798, 109 C. C. A. 558 335

Bowas V. Pioneer Tow Line, 2 Sawy., (U. S.), 21, 3 Fed. Gas.,

1713 741,923

Boyd V. Boyd, 6 G. & J. (Md.), 25 627

Boyd V. N. E. Mut. L. Ins. Co., 34 La. Ann., 845 650, 651, 653

Bradford v. Bank, 13 How. (U. S.), 57, 68, 14 L. ed., 49 585

Bradley v. Fischer, 13 Wall., 335, (U. S.) 20 L. ed., 646 852,867

Bradshaw v. Bradshaw, 2 Y. & Col. (Exch.), 86 694

Bradwin v. Harpur, Amb. 374 695

Brandy v. McCrosson, 5 Redf. Surr., 431 628

Brevcort v. Partridge, 156 Mich. 359, 120 N. W. 803 946

Briggs V. Ewart, 51 Mo., 245, 11 Am. Rep., 445 908

Briggs V. Smith, 4 Daly (N. Y.) 110 513

Britton v. Turner, 6 N. H., 481, 26 Am. Dec, 713 841, 842

XXiv I EXTRATERRITORIAL CASES.

Pajie.

Brodie v. Mitchell, 85 Md., 516, 37 Atl., 169 62S

Brooks V. Hall, 36 Kan. 697, 14 Pac. 236 946

Brooks V. Martin, 2 Wall., (U. S.) 70, 17 L. ed., 732 643,644,646

Eroschart v. Tuttle, 59 Conn. 1, 11 L. R. A., 33 559

Broughton v. Bradley, 34 Ala., 694, 73 Am. Dec, 474 913

Brown v. Cranberry etc. Co., 82 Fed., 351 944, 945, 946

Brown v. U. S., 143 Fed. 60 348

Brown's Ex'r. v. Tilden, 5 H. & J., 371 894

Bryan v. Sundberg, 5 Tex., 418 710

Bullis V. Giddens, 8 Johns. (N. Y.), 82 474

Bullock V. Zilley, 1 N. J. Eq., 489 888

Burkett V. McCarty, 10 Bush (Ky.), 758 .^ 422

Burkhalter v. Jones, 32 Kan., 5, 3 Pac. 559.....'. 580

Burr V. House, 3 Alaska, 641 769

Burrill v. Saving Bank, 92 Pa. St., 134, 37 Am. Rep., 669 907

Burtis V. Burtis, 1 Hopkins Ch. 557, 14 Am. Dec. 563 323, 325

Butler V. Moses, 43 Ohio, St., 166, 1 N. E., 316 581

Butler V. Washburn, 25 N. H., 258 361

Bunch V. Hardy, 3 Lea, (Tenn.) 543 896

Burton v. Burley, 13 Fed. 811 1005

Burvant v. Wolfe, 126 La., 787, 52 So., 1025, 29 L. R. A. (N.

S.), 677 593

Buscher v. N. Y. Transp. Co., 106 App. Div., 493, 94 N. Y.

Suppl. 798 592

Byers v. Hoppe, 61 Md., 207, 48 Am. Rep., 89 627, 628, 714

Calan v. Wilson, 127 U. S., 540, 32 L. ed., 223 903

Caldwell v. State, 5 Tex. 18 624

Campbell v. Gordon, 6 Cranch (U. S.), 357, 3 L. ed., 190 701,702

Campbell v. Haverhill, 155 U. S. 610, 39 L. ed.. 280 178

Cambria Iron Co. v. Ashburn, 118 U. S. 57, 30 L. ed., 61, 6

Sup. Ct. Rep., 929 404

Canning's Case, 19 How. St. Tr. 383 675

Cannon v. Apperson, 14 Lea, (Tenn.) 553 896

Canors-McConnell Co. v. McConnell, 140 Fed., 412 825

Capelli V. Dondero, 123 Cal. 324, 55 Pac. 1057 945

Garden, v. State, 84 Ala., 417, 4 So., 823 678

Cariens v. Cariens, 50 W. Va., 113, 40 S. E., 335, 55 L. R. A.,

930 534,535

Carlisle v. Barker, 57 Ala. 267 946

Carpenter v. Winn, 221 U. S., 533, 55 L. ed., 842 811

Carr. v. Hull, 65 O. St., 394, 58 L. R. A., 641 539

Case V. Fishback, 10 B. Mon. (Ky.) 40 880

Central R. Co. v. Goodwin, 120 Ga., 83, 47 S. E. 641 908

Chapman v. State, 78 Ala. 463, 56 Am. Rep., 42 131

Charlton v. Miller, 27 Ohio St., 298, 22 Am. Rep., 307 888

KEFERENCES. XXV

Page.

Chelsea Nat. Bank v. Smith, 74 N. J. Eq. 275, 69 Atl. 533 945

Chesapeake & Ohio R. Co. v. Francisco, 149 Ky., 307, 148 S.

W., 46 619

Chicago etc. R. Co. v. Belliwith, 83 Fed., 437 907, 909

Chicago etc. R. Co. v. Price, 97 Fed., 423 559

Chicago etc. R. Co. v. Wolcott, 141 Ind., 267, 39 N. E. 451.... 618

Childress v. Cutter, 16 Mo., 24 700

Chinnock v. Marchioness of Ely, 4 D. J. & S. 646 253

Chipman v. Cook, 2 Tyler (Vt.), 456 487

Christensen v. Borax Co., 26 Or., 302, 38 Pac, 127 731

Chute V. Quincy, 156 Mass., 189, 30 N. E., 550 580

City of Pasadena v. Superior Court, 157 Cal., 781, 109 Pac, 620.. 876

Clairmont v. United States, 225 U. S., 551, 56 L. ed., 1201 314

Clark V. State (Okla. Cr. App.), 106 Pac, 804 625

Clarke v. Ransom, 50 Cal., 595 715

Claus V. Northern Steamship Co., 89 Fed., 646, 32 C. C. A., 282.. 558
Cleghorn v. N. Y. Central, etc R. Co., 56 N. Y. 44, 15 Am.

Rep. 375 989

Clemons v. Helehan, 52 Neb., 287, 72 N. W., 270 370

Cleveland Rolling Mill v. Rhodes, 121 U. S. 255. 7 Sup. Ct. 882,

30 L. ed., 920 337

Clinton v. Englebrecht, 13 Wall. (U. S.), 434, 20 L. ed., 659.. 173,929

Clune V. U. S., 159 U. S., 590, 40 L. ed., 269 796,903

Cobb. V. U. S., 172 Fed., 641 835,852,854

Cochran v. Arnold, 58 Pa. St. 399 665, 760

Coffin V. Landis, 46 Pa. St., 426 731

Coffin V. U. S., 156 U. S., 455, 39 L. ed., 491 555

Cohen v. Hoff, 2 Tredway, 661 710

Cohens v. Virginia, 6 Wheat. (U. S.), 264, 5 L. ed., 257 659

Cole V. Babcock, 78 Maine, 41, 2 Atl., 545 814

Cole V. Cole, 142 111., 19, 19 L. R. A., 811 535

Colvin V. Williams, 3 Harris & Johnson (Md.), 38 242

Com. V. Bonner, 9 Mete. (Mass ), 410.... 489,493,494

V. Brigham, 147 Mass., 415, 18 N. E., 167 678

V. Chapman, 13 Mete (Mass.), 75 487

— V. Dougherty, 137 Mass., 245 194

V. Hudson, 11 Gray (Mass.), 64 880,882

V. Knowlton, 2 Mass., 530 85

V. Lavery, 101 Mass., 207 454

V. Leonard, 140 Mass., 473, 4 N. E., 96, 54 Am. Rep., 485.... 864

V. Morihan, 4 Allen (Mass.), 587 454

V. Proprietors, 2 Gray (Mass.), 339 987

-v. Pulaski Agr. Assn., 92 Ky. 197, 17 S. W., 442 984, 986, 987

V. Snelling. 15 Pick. (Mass.), 337 487,489,493

• V. Sullivan, 5 Allen (Mass.), 511 194

■ V. Tay, 170 Mass.. 192, 48 N. E., 1086 194

V. Tolliver, 8 Gray (Mass.), 386 454

xxvi I EXTRATERRITORIAL CASES.

Page.

V. Tuck, 20 Pick. (Mass.), 356 636

V. Turnpike Co., 2 Va. Cas., 362 985

V. Webster, 5 Cush. (Mass.), 295, 52 Am. Dec, 711 679

V. White, 110 Mass., 407 132

Cone V. Russell, 48 N. J., Eq., 208, 21 Atl., 847 730

Conn V. Conn, 23 Or., 452, 30 Pac, 330 513

Connett v. Connett, 81 Neb., 777, 116 N. W., 658 837

Consumers' Oil Co. v. Nunnemaker, 142 Ind., 560, 41 N. E.,

1048 829

Cook V. State, 71 Neb., 243, 98 N. W., 810 127

Cook V. United States, 138 U. S., 157, 181, 34 L. ed., 906 50

Cooper V. Lloyd, 6 C. B. N. S., 519 935

Copp V. Colorado etc. Co., 46 N. Y. Supp., 542, 20 Misc., 702.... 731

Corbett V. Nutt, 18 Gratt. (Va.), 624, 633 670

Courtwright v. Water & Mining Co., 30 Cal., 573 880

Covington Stock Yards Co. v. Keith, 139 U. S., 128, 35 L.

ed., 73 606

Cox V. Ellsworth, 18 Neb., 664, 26 N. W., 460 651

Cox V. Pennsylvania R. Co. (Pa.), 85 Atl., 863 609

Cox V. Royal Tribe, 42 Or., 365, 71 Pac, 73 673

Coxe V. Gulick, 10 N. J. L., 328 381

Craig V. Weitner, 33 Neb., 484, 50 N. W., 442 747

Cream City Co. v. Friedlander, 84 Wis., 53, 54 N. W., 28 921

Cramer v. Higginson, 6 Fed. Cas., 797 266,267

Crow V. State, 41 Tex., 468 624

Crowe V. Lewin, 95 N. Y., 423 585

Cunningham v. Rodgers, Wash. L. Rep. XLVIII, 216 Ill

Curley v. U. S., 130 Fed., 1 903

Cutler V. Dix, 67 Vt., 347, 31 Atl., 780 746, 747

Daggett V. Johnson, 49 Vt., 345 968

Dalpine v. Lume, 145 Mo. App., 549, 122 S. W., 776 943

Dalrymple v Gamble, 66 Md., 298, 7 Atl., 683, 8 Atl., 468 913

Daniels v. Barney, 22 Ind., 207 645

Darst v. Alkali Works, 81 Fed., 284 977

Davie v. Briggs, 97 U. S., 628, 24 L. ed., 1084 651

Davis V. A. Booth & Co., 131 Fed., 31 766

Davis V. Kerr, 3 N. Y. App. Div., 322, 38 N. Y. Supp., 387 888

Davis V. Wells, 104 U. S. 159, 26 L. ed., 686 268

Davis V. U. S., 107 Fed., 753 799

Davis V. Whitlock, 90 S. C. 233, 73 S., E. 174 324

Davis V. Williams, 57 Miss., 843 843

Davis County v. Horn, 4 G. Greene (la.), 94 876

De Briar v. Minturn 1 Cal., 450 731

De Geofroy v. Riggs, 133 U. S., 258, 33 L. ed., 642 61

De Lovio v. Boit, 2 Gall. (U. S.), 398 20

REFERENCES. XXVll

Page.

Delafield v. Illinois, 2 Hill (N. Y.), 159 880

Delesdernier v. Delesdernier, 45 La. Ann., 1364, 14 So., 191 917

Dement v. Adm'r., 13 Ala., 140 880

Deputy V. Kimmell, (W. Va.), 89 S. E., 919, 51 L. R. A. (N. S.),

989 59a

De Ruitter v. De Ruitter, 28 Ind. App. 9, 62 N. E., 100 908

Derfflinger, The, (No. 1), 3 Brit. & Col. Prize Cas., 389 (1916).. 105
Desmond-Dunne Co. v. Friedman-Doscher Co., 162 N. Y,, 486,

56 N. E., 995 747

De Vaux v. Salvador, 4 Ad. & Ell., 420 21

Devonald v. Rosser, L. R. (K. B. Div. 1906), vol 2, p. 728 463

Dewey v. Whitney, 93 Fed., 533 (affirming 85 Fed., 325) 947

Diamond Match Co. v. Roeber, 106 N. Y., 473, 31 N. E., 419, 60

Am. Rep., 464 766

Dickson v. Kittson, 75 Minn., 168, 77 N. W., 820 730

District Township v. City of Dubuque, 7 la. 262 710

Doe V. Barnes, M. & Rob., 389 VOO

Doe dem. Birtwhistle v. Vardell, 5 B & C, 451 81

Doll V. Noble, 116 N. Y., 230, 22 N. E., 406 968

Dorr V. U. S., 195 U. S., 138, 49 L. ed., 128 50,478

Doud V. National Park Bank, 54 Fed., 846 265

Douglass V. Reynolds, 7 Pet. (U. S.), 113, 8 L. ed., 626 266,958

Douville V. Merrick, 25 Wis., 688 -- 644

Downes v. Bidwell, 182 U. S., 244, 45 L. ed., 1088 50, 422

Dr. Munroe's Case, 5 Madd., 379 142

Drake v. Stewart, 76 Fed., 140 794

Drakesboro etc. Co. v. Brashears, 144 Ky., 39, 137 S. W., 765.... 946

Draycott v. Talbot, 3 Brown P. C. (2nd ed.), 564 700

Drew V. Goodhue, 74 Vt., 436, 52 Atl., 971 747

Drummond v. Prestman, 12 Wheat (U. S.), 515, 6 L. ed., 712.. 958

Durant v. Starr, 11 Mass., 527 649

Durfree v. Abbott, 61 Mich., 471, 28 N. W., 521 700

Durkee v. Carr, 38 Or., 189, 63 Pac, 117 346

Dwight V. Simon, 4 La. Ann., 490 913

Eastman v. Plumer, 46 N. H., 464 944

Eaton V. Brown, 193 U. S., 411, 48 L. ed., 730, 9 Prob., 627 627

Eberts v. Fisher, 44 Mich., 551, 7 N. W., 211 895

Eckford v. Knox, 67 Tex., 200, 2 S. W., 372 756

Edwards v. Seaboard R. Co., 121 N. C, 490, 28 S. E., 137 731

Edwards v. State, 38 Tex. App., 386, 39 L. R. A., 262 417

Eliason v. Henshaw, 4 Wheat. (U. S.), 225, 4 L. ed., 556 1009

Ellison V. Martin, 53 Mo., 575 482

Elzoy V. Elzoy, 1 Houston (Del.) 308 324

Embrey v. Jemison, 131 U. S. 336, 33 L. ed., 172 115, 116

Emerine v. Tarault, 219 Fed., 68 900

XXViii I EXTRATERRITORIAL CASES.

Papre.

Erber v. U. S., 234 Fed., 221 796

Estate of Billings, 64 Cal., 427 843

Estate of Healy, 122 Cal., 162 419

Estate of Plumel, 151 Cal., 77, 121 Am. St. Rep., 100 843

Estate of Rand, 61 Cal., 468, 44 Am. Rep., 555 843, 939

Essex V, Day, 52 Conn., 483, 1 Atl., 620 945,946

Eumeaus, The, 1 Brit. & Col. Prize Cas., 615 106

Eureka Laundry Co. v. Long, 146 Wis., 205, 131 N. W., 412... 826

Evans v. R. Co., 24 Mo. App., 114 731

Everson v. Granite Co. 65 Vt., 658, 27 Atl., 320 580

Ex Parte Bell, 1 Mau. & Sel., 752 644

Bollman, 4 Cranch (U. S.), 75, 2 L. ed., 561 879

Bradley, 7 Wall. (U. S.), 364, 19 L. ed., 219 867

Cunningham, In re Mitchell, 13 Q. B. Div. 418 149

Fisk, 113 U. S., 713, 28 L, ed., 1117 811

Grayson, 215 Fed., 449 420

Heath, 3 Hill (N. Y.), 42, 51 876,880

Norvell, 20 D. C, 353 405

Robinson, 19 Wall. (U. S.), 513, 22 L. ed., 205 867

Secombe, 19 How. (U. S.), 9, 15 L. ed., 565 867

Tuftnel, 4 D. & C, 29 390

U. S., 242 U. S., 27, 61 L. ed., 129 689

Wall, 107 U. S., 265, 27 L. ed., 552 835,836,852

Walls, 64 Ind., 461 836

Faikney v. Reynous, 4 Burr., 2069 646

Fairbanks v. Blackington, 9 Pick. (Mass.), 93 644

Farlie v. Fenton, L. R. 5 Exch. Cas., 169 438, 439

Farmer v. Russell, 1 Bos. & Pul., 295 643,646

Farmer v. St. Paul, 65 Minn., 176, 33 L. R. A., 199, 67 N. W.,

990, 992 ^ 542

Farrar v. Churchill, 135 U. S., 609, 34 L. ed., 246, 10 S. Ct., 771.. 908

Farnsworth v. Duffner, 142 U. S., 43, 35 L. ed., 981 946

Fennessey v. Ross, 39 N. Y. Supp., 323 730

Fenwick v. Schmalz, L. R. 3 C. P., 313 303

Ferguson v. Southern R. Co., 91 S. C, 61, 74 S. E., 129 608

Ferlat v. Gojon, 1 Hopkins Chancery, 478, 14 Am. Dec, 554 323

Field V. Eaton, 16 N. C, 283 896

Field V. Munster, 11 Tex. Civ. App., 341, 32 S. W., 417 595

Filley v. Pope, 115 U. S., 213, 29 L. ed., 372 769

Finger v. Brewing Co., 13 Mo. App., 310 731

First National Bank v. Carroll, 80 la., 11, 45 N. W., 304, 8 L.

R. A., 276 - 117

First Nat'l Bank v. Hubbard, 49 Vt., 1, 24 Am. Rep., 97 880

First Nat. Bank v. Whitman, 94 U. S., 343, 24 L. ed., 229 108

Fisheries Co. v. Lennen, 116 Fed., 217 766

REFERENCES. XXIX

Page.

Fitzgerald, In re (1903), 1 Ch., 941 83

Fivaz V. NichoUs, 2 Man. G. & S., 501, 513, 52 Eng. Com. L.,

500 644

Fivey v. R. Co., 67 N. J. L., 627, 52 Atl., 472 907-908

Flagstaff, etc. Co. v. Patrick, 2 Utah, 304 730

Fleener v. State, 58 Ark., 98, 23 S. W., 1 684, 685

Flemister v. United States, 207 U. S., 372, 52 L. ed., 252 330

Flourney v. State, 16 Tex., 31 625

Floyd V. Clayton, 67 Ala., 266 913

Fonner v. Smith, 31 Neb., 107 108

Forbes v. Forbes, Kay, 356, 23 L. J. Ch., 724 150

Forbes v. Scannell, 13 Cal., 242, 285 85

Fowle V. Park, 131 U. S., 88, S3 L. ed., 67 824

Frary v. Rubber Co., 52 Minn., 264, 53 N. W., 1156 968

Freeman v. Venner, 120 Mass., 424 997

Frey-Scheckler Co. v. Iowa Brick Co., 104 la., 494, 73 N. W.,

1051 921

Fuentes v. Gaines, 25 La. Ann., 87 849

Fusselier v. Masse, 4 La., 423 756

G- V. G-, 67 N. J. Eq., 30, 56 Atl. Rep., 736 534

Gage V. Fisher, 5 N. D., 297, 65 N. W., 809 730

Gage V. Phillips, 21 Nev., 150, 26 Pac, 60 907, 908

Gaines v. New Orleans, 6 Wall. (U. S.), 642, 18 L. ed., 962 653

Gallagher v. U. S., 144 Fed., 87 555

Garrett v. People's Ry. Co., (Del.), 64 Atl., 254 559

Garrison v. U. S., 7 Wall., 688, 19 L. ed., 277 302

Gaunt V. State, 50 N. J. L., 490 845

Gavieres v. United States, 220 U. S., 338, 55 L. ed., 489 330

Gelston v. Hoyt, 3 Wheaton 246, 4 L. ed., 381 260

Georgia etc. R. Co. v. Barfield (Ga., 1907), 58 S. E., 236 608

Gerhard v. Ford Motor Co., 155 Mich., 618, 119 N. W., 904, 20

L. R. A. (N. S.), 2.33 593

Germain Fruit Co. v. Western Union Tel. Co., 137 Cal., 598, 70

Pac, 658 588

Germania Ins. Co. v. Ross-Lewin, 24 Col., 43, 51 Pac, 488 673

Gibbs V. Gibbs, 26 Utah, 382, 73 Pac, 641 482

Gibbs V. Linabury, 22 Mich., 479, 7 Am. Rep., 675 908

Gibson v. Gibson, 28 Gratt. (Va.), 44 843

Gilbank v. Stephenson, 31 Wis., 592 928

Gill V. Clagett, 4 Md. Ch., 470 944

Gillespie v. Battle, 15 Ala., 276 730

Gilliam v. Brown, 43 Miss., 641 646

Gilman v. Gilman, 52 Me., 165, 83 Am. Dec, 502 95, 138

Gilmer v. Stone, 120 U. S., 586, 30 L. ed., 734 697

Godfrey v. Roessle, 5 Appeal Cases (D. C), 299 766

XXX I EXTRATERRITORIAL CASES.

Goodtitle v. Welfred, Douglass, 139 649

Goodwin v. Baltimore etc. Co., 50 N. Y,, 154 90

Gordon v. People, 33 N. Y., 501 902

Gould V. Dodge, 30 Wis., 621 880, 883

Gould V. Hayes, 19 Ala., 438 880

Goundie v. Northampton Water Co., 7 Pa. St., 233 760

Governor v. Whithers, 5 Gratt. (Va.), 24, 50 Am. Dec, 95 569

Govier v. Hancock, 7 T. R., 603 935

Grafton v. United States, 206 U. S., 333, 51 L. ed., 1084 406

Graham v. Guinn, 43 S. W. (Tenn.), 749 945

Grand Lodge v. Wieting, 168 111., 408, 48 N. E., 59 673

Grant v. Todd, L. R., 9 Appeal Cases, 470 303

Gravelle v. Minneapolis, etc., R. Co., 10 Fed., 711, 3 McCrary,

352 558

Graysbrook v. Fox, 1 Plowd., 275 913

Greathouse v. Heed, 1 Idaho, 494 883

Greene v. Bateman, 2 Woodb. & M., 359, 10 Fed Gas., 1126.... 584

Greer v. Arlington etc. Co., 1 Penne. (Del.), 581, 43 Atl., 609.... 731

Gregory v. Slaughter, 124 Ky., 358, 99 S. W., 248 559

Griefswald, The, Swab. Adm. Rep., 430 20

Grier v. Samuel, 27 Del. 106, 86 Atl., 209 591

Griffin v. Griffin, 47 N. Y., 134 369

Griffin v. Lumber Co., 140 N. C, 514, 53 S. E., 307 908

Griffin v. O'Neil, 48 Kan., 117, 29 Pac, 143 580

Grignon's Lessees v. Astor, 2 How. (U. S.), 319, 11 L. ed., 283.. 639

Grymes v. Sanders, 93 U. S. 55, 23 L. ed., 798 946

Gsell V. Insular Collector, 239 U. S., 93, 60 L. ed., 163; affirm-
ing 24 Phil., 369 659

Guernsey v. Cook, 120 Mass., 501, 117 Mass., 548 730

Gulf etc. R. Co. V. Jackson, 29 Tex. Civ. App., 342, 69 S. W.
89 _ 977,978

Habberfield v. Browning 627

Hadley v. Baxendale, 2 C. L. R., 517, 9 Exch., 341, 18 Jur., 358,
23 L. J. Exch., 179, 2 Wkly. Rep., 302, 26 Eng. L. & Eq., 398,

5 Eng. Ruling Cases, 504 740,922,976

Hahn v. Kelly, 34 Cal., 391, 94 Am. Dec, 742 476

Hall V. Stephens, 65 Mo., 670, 27 Am. Rep., 302 896

Hall & Holtz, Ltd. v. Tozer, North China Herald, LXXX, 94.... 821, 823

Hall Mfg. Co. v. Western Steel & Iron Works, 227 Fed., 588.. 829

Hallowell v. Hallowell, 88 Ind., 251 648

Hallowell v. United States, 221 U. S., 317,' 55 L. ed., 750 313

Hanauer v. Doane, 12 Wall. (U. S.), 342, 20 L. ed., 439 428

Haney v. Caldwell, 35 Ark., 156 731

Hannigan v. Wright, 5 Pennewell (Del.), 537, 63 Atl., 234 592,593

Hanson v. Hanson, 78 Neb., 584, 111 N. W., 368 928

REFERENCES. XXXI

Page.

Hanson v. Watson, North China Herald, Oct. 8, 1899 80, 389

Harman v. Maddy, 57 W. Va., 66 946

Harper v. Hassard, 113 Mass., 187 731

Harran v. Foley, 62 Wis., 584, 22 N. W., 837 581

Harris v. Columbiana Co., 18 Ohio, 116, 51 Am. Dec, 448 945

Harris v. Pepperell, L, R., 5 Eq. Cas., 1 582

Harris v. Runnels, 12 How. (U. S.), 79, 13 L. ed., 901 760

Harris v. Scott, 67 N. H., 437, 32 Atl., 770 730

Harrison v. Glucose Sugar Refining Co., 116 Fed., 304, 58 L.

R. A., 915 766, 822

Harrisburg Lumber Co. v. Washburn, 29 Or., 150, 44 Pac, 390.. 921

Hartford etc. Co. v. Jackson, 24 Conn., 514 585

Harvard College v. Gore, 5 Pick. (Mass.), 370 139,140

Hastelow v. Jackson, 8 B. & C, 221 643

Hauenstein v. Lynham, 100 U. S., 483, 25 L. ed., 628 381

Hawkins v. Garland's Admr., 76 Va., 149 697

Hawley v. Brown, 1 Root (Conn.), 494 649

Hay V. Le Neve, 2 Shaw's Scotch H. L. App., 395 21

Hayden v. Androscoggin Mills, 1 Fed., 93 639

Hays V. McNealy, 16 Fla., 409 880

Hayward v. N. J. St. Ry. Co. (N. J. 65 Atl.), 737, 8 L. R. A.

(N. S.) , 1062 592

Hearne v. De Young, 119 Cal., 670 494

Hearne v. Insurance Co., 20 Wall (U. S.), 488, 22 L. ed., 395.... 944

Heatherwick v. Heatherwick, 32 111., 73 370

Heike v. U. S., 192 Fed., 83 801

Heine Safety Boiler Co. v. Francis Bros. & Jollett, 117 Fed., 235 747

Heirs of McMichael v. Bankston, 24 La. Ann., 451 843, 939

Heirs of Williams v. Hardy, 15 La. Ann., 286 843

Henderson v. Kennedy, 9 Kan., 113 (163) 883

Henkel v. Paper, L. R., 6 Exch., 7, 40 L. J. (Part 2), 15 „... 586

Hennessey v. Taylor, 189 Mass., 583, 3 L. R. A. (N. S.), 345, 76

N. E., 224 593

Herreschoff v. Boutineau, 17 R. I., 3, 19 Atl., 712, 8 L. R. A.,

469, 33 Am. St. Rep., 850 766

Higginbotham v. State, 23 Tex., 575 623

Higgins v. Parsons, 65 Cal. 280, 3 Pac, 881 945

Hillsdale Coal & Coke Co. v. Pennsylvania R. Co., 229 Pa., 61,

78 Atl., 28 611

Hight v. Bacon, 126 Mass., 10, 30 Am. Rep., 639 569

Hilton V. Roylance, 25 Utah, 129, 69 Pac, 660, 58 L. R. A.,

723, 95 Am. St. Rep., 821 367

Hitchcock V. Supreme Tent, 100 Mich., 40, 58 N. W., 640 612

Hobart v. Hobart, 45 la., 501 928

Hochster v. De la Tour, 2 El. & Bl., 678 977

Hockaday v. Lynn, 200 Mo., 456, 98 S. W., 585, 8 L. R. A. (N.

S.), 117, 118 Am. St. Rep., 672 756

14008 O. W. iii

XXXii I EXTRATERRITORIAL CASES.

Page.

Hogan V. Stophlet, 179 111, 150, 44 L. R. A., 809 362

Hogg V. Chu Fu-fu, North China Herald, September 5, 1900.- 78

Honeyman v. Marrayat, 6 H. L. C, 112 1008

Hooper & Ashey v. Willis, 21 T. L. R., 691, affirmed 22 T. L,

R., 451 829

Hornbuckle v. Toombs, 18 Wall., 648, 21 L. ed., 966 177

Hotchkiss V. Gretna Co., 36 La Ann., 517 968

Houston etc. R. Co. v. Campbell, 91 Tex., 551, 45 S. W., 2 611, 613

Houston etc., R. Co. v. Hill, 70 Tex., 51, 7 S. W., 659 611, 612

Hovey v. McDonald, 109 U. S., 150, 27 L. ed., 888, 3 Sup. Ct., 136 876

Howard v. East Tennessee etc. R. Co., 91 Ala., 268, 8 So., 868.. 731

Huber v. Jackson & Sharp Co., 1 Marv. (Del.), 374, 41 Atl., 92.. 594

Hughey v. Smith, 65 Or., 323, 133 Pac, 68 947

Huggins V. People, 135 111., 243, 25 N. E., 1002, 25 Am. St.

Rep., 357 864

Hume V. U. S., 132 U. S., 406, 33 L. ed., 393 584, 945, 946

Hummer v. Hummer, 3 G. Greene (la.), 42 880,881

Humphrey v. Wade, 70 N. C, 280 880

Hunt V. Crane, 33 Miss., 669 977

Hunt V. Hunt, 4 N. H., 438, 17 Am. Dec, 434 715

Hunt V. Palo, 4 How. (U. S.), 589, 11 L. ed., 1115 405

Hunt V. Supreme Council, 64 Mich., 671, 31 N. W., 576 700

Hutchins v. Kimmell, 31 Mich., 125 700

Hutkopf V. Demorest, 103 N. Y., 377, 8 N. E., 899, 10 N. E.,

535 475

I.
Imperial Japanese Government v. Peninsular & Oriental Com-
pany, 1895, A. C, 644 31,739

India, The, 49 Fed., 76 303

Indian Chief, The, 3 Rob. Adm., 29 23,99,145, 147

Inland etc. Coasting Co. v. Tolson, 139 U. S., 551, 35 L. ed.,

270 559

In re Ah Yup, 5 Sawy., 155, 1 Fed. Cas., 223 701

In re Alexander, 1 Lowell (U. S.), 470, 1 Fed. Cas., 351 900

In re Attorney-General, 2 N. M., 49 710

In re Barton's Estate, 52 Cal., 538 627, 628

In re Ben Hope Lee's Estate, U. S. Ct. for China, No. 71 701

In re Certain Trusts, North China Herald, CXII, 66, (July 4,

1914) 389

In re Christensen, 17 Utah, 412, 53 Pac, 1003, 70 Am. State

Rep., 794, 41 L. R. A., 504 369

In re Conway, 124 N. Y., 455, 11 L. R. A., 796, 26 N. E., 1028.. 648

In re Fouche's Estate, 147 Pa., 395, 23 Atl., 547 715

In re Grayson, 3 Indian Ter., 497 658

In re Gorkow's Estate, 20 Wash., 563, 56 Pac, 385 697

In re Gruendike's Estate, 154 Cal., 628, 98 Pac, 1057 888

REFERENCES. XXXlll

Page.

In re Howe, 26 Or., 181, 37 Pac, 537 398

In re Holmberg's Estate, 193 Fed., 260 719

In re Jones' Estate, 211 Pa, St., 364, 69 L. R. A., 940, 60 Atl.,

915, 107 Am. St. Rep., 581, 3 Ann. Cas., 221, 10 Prob. Rep.

Ann., 490 (affirming 29 Pa. Co. Ct., 593) 888,889

In re Jordan, 90 Mich., 3, 50 N. W., 1087 193

In re Ladd's Estate, 94 Cal., 670 894

In re. Look Tin Sing, 21 Fed., 905 702, 710

In re Mclntyre & Co., 181 Fed., 955 391

In re Meyers' Estate, 113 N. C, 545, 18 S. E., 689 628

In re Osterhaus, 18 Fed. Cases, 894 405

In re Pennewell, 119 Fed., 139 997

In re Pepin's Estate, 53 Mont., 240, 163 Pac, 104 754

In re Potter, 85 Wash., 617, 149 Pac, 23 754

In re Rahrer, 140 U. S., 545, 35 L. ed., 572 315

In re Ralston, 9 Pa. Dist. Ct, 514 „... 673

In re Roberts' Will, U. S. Court for China, May 15, 1907.. 106, 110, 145

292, 525, 710

In re Ross, 44 Fed., 185 46, 48

In re Seaman's Estate, 146 Cal., 455, 10 Prob. Rep. Ann., 255,

80 Pac, 700 648

In re Schnitzer, 33 Nev., 581, 112 Pac, 848 852

In re Snook, 2 Hilt., 566 817

In re Soher, 78 Cal., 477, 21 Pac, 8 894

In re Terrell, 2 Philippine, 266 835,852

In re Tootal's Trusts, L. R., 23 Ch. D., 532 98, 104, 105

137, 139, 141, 143, 145, 146, 147

In re Ulmer, 208 Fed., 461 836, 852, 867

In re Utz's Estate, 43 Cal., 200, 204 895

In re Wolf, 27 Fed. Rep., 606 478

In re Woodbridge's Estate (U. S. Ct. for China) 525

In re Ziegler, 143 N. Y. S., 562, 82 Misc., 346 755

Ins. Co. V. Nelson, 103 U. S., 544, 26 L. ed., 436 909

International etc. R. Co. v. Nicholson, 61 Tex., 550 595

Irwin V. Judge, 81 Conn., 492, 71 Atl., 572 559

Irwin V. Williar, 110 U. S., 509, 28 L. ed., 225 115,116,230

J. Thompson Mfg. Co. v. Gunderson, 106 Wis., 449, 82 N. W.,

299 921

Jackson v. Jackson, 6 Dana (Ky.), 257 715

Jackson v. Rogers, 2 Show, 327, 89 Eng. Reprint, 965 606

Jageman v. Necco (Tex. Civ. App.), 59 S. W., 822 645

James v. Cutler, 54 Wis., 172, 10 N. W., 147 945

Jarret v. Phillips, 90 111., 238 529

Jefferson Hotel Company v. Brumbaugh, 168 Fed., 867 1005

XXxiv I EXTRATERRITORIAL CASES.

Page.

Jenks V. State, 63 Ark., 312, 39 S. W. Rep., 361 453,456

Johnson v. Happell, 4 Tex., 96 880

Johnson v. Powers, 139 U. S., 156, 35 L. ed., 112 Ill

Jones V. Boston Mill Corp., 4 Pick., 507, 16 Am. Dec, 358 876

Jones V. Dale, 16 Ontario, 717 944

Jones V. Jones, 35 N. C, 449 361

Jones V. Lees, 1 H & N., 189 766

Jones V. Reed, 3 Wash., 57, 27 Pac, 1067 880

Jones V. Transp. Co., 51 Mich., 539, 16 N. W., 893 968

Joplin Mercantile Co. v. U. S., 213 Fed., 926 987

K. P. R. Co. V. Roberson, 3 Col., 142 731, 732

Kathmeyer v. Mehl, (N. J.), 60 Atl., 40 592

Kauffman v. Leonard, 139 Mich., 104, 102 N. W., 632 _ 991

Keliher v. U. S., 193 Fed., 8 792

Kelly V. Owen, 7 Wall., 496 19 L. ed., 283 318

Kennedy v. Doyle, 10 Allen, 161, Thayer's Cases on Evidence,

437 700

Kennett v. Chambers, 14 How. (U. S.), 38, 14 L. ed., 316.... 260,642

Kerr v. Shine, 136 Fed., 61 402,407

Kessler v. Washburn, 157 111. App., 532 591

Kiewert v. Rindskopf, 46 Wis., 481, 32 Am. Rep., 731, 1 N. W.,

163 644

Kimberly v. Arms, 129 U. S., 512, 32 L. ed., 764 928

Kimmans v. Chandler, 13 Iowa, 327 997

King V. Batterson, 13 R. I., 117 959

King V. Inhabitants, Clifton, 5 D. & E., 499 985

King V. Inhabitants, West Riding, Yorkshire, 2 Black, 685.... 985

Kingen v. Kelley, 3 Wyo., 566, 15 L. R. A., 177 399

Kirby v. Tallmadge, 160 U. S., 379, 40 L. ed., 463 — . 552, 795

'Kirk V. Hartman, 63 Pa, St., 97 731

Kittredge v. Folsom, 8 N. H., 98 913

Klein v. State, 9 Ind. App., 365, 53 Am. St. Rep., 354, 36 N. E.,

763 131

Kline v. Wood, 9 S. & R. (Pa.), 294 880

Knapp V. S. Jarvis Adams Co., 135 Fed., 1008 825

Koons V. Dyer, Morris (la.), 127 872,880

Kramer v. Wolf Cigar Stores Co., 99 Tex., 597, 91 S. W., 775,

777 805

Lackland v. Nevins, 3 Mo. App., 336 845

Lampe v. Jacobsen, 46 Wash., 533, 90 Pac, 654 593

Langforth Bridge Case, Cro. Car. 565 985

Lanning v. Sisters of St. Francis, 35 N. J. Eq., 392 _ 696

La Point v. Scott, 36 Vt., 603 346

Larkin v. Radosta, 119 N. Y. App. Div., 515 346

REFERENCES. XXXV

Page.

Larner v. N. Y. Transp. Co., 133 N. Y. Suppl., 743 592

Larrison v. Larrison, 20 N. J. Eq., 100 496

LaRue v. Lee, 63 W. Va., 388, 60 S. E., 388, 13 Prob. Rep.,

442 894

Lathoarp v. Bryant, 2 Bing. (N. Cas.) 735, 3 Scott, 238 242

Lauson v. Fond du Lac, 141 Wis., 57, 123 N. W., 629 559

Lawrence v. McAlmont, 2 How. (U. S.) 426, 13 L. ed., 497 268

Lawson v. Dawson, 21 Tex. Civ. App., 361, 53 S. W., 64 648

Lawson v. State, 30 Ala., 14 623

Laycock v. Moon, 97 Wis., 59, 72 N. W., 372 921

Leatherberry v. Odell, 7 Fed., 641 804, 969

Leather Cloth Co. v. Lorsont, L. R. 9 Eq., 345 824

Leathers v. Greenacre, 53 Me.. 561 ^27

Lefevre v. Lefevre, 59 N. Y., 434 697

Leidigh v. Keever, 2 Neb. (Unoff.), 343, 96 N. W., 106 946

Leisy v. Hardin, 135 U. S., 100, 34 L. ed., 128 315

Le Mayne v. Stanley, 3 Lev., 1, 83 Eng. Reprint, 545 648

Lemon v. Grosskopf, 22 Wis., 447, 99 Am. Dec, 58 644

Leonard v. Grant, 6 Sawyer, 603, 5 Fed., 11 318

Leroy v. Clayton, 2 Sawy., 493, 15 Fed. Cas., 358, 360 639
Lesser v. Gilbert Mfg. Co., 72 N. Y. App. Div., 147, 75 N. Y.,

Supp., 486 806

Lestrade v. Earth, 19 Cal., 660 946

Lewis V. Lewis, 5 Or., 169 947

Lewis v. Marshall, 5 Pet. (U. S.), 470, 8 L. ed., 195 700

Lewis v. R. Co., 5 H. & N., 867 907

Lewis Co. v. Scott, 95 Ky., 484, 26 S. W., 192 977

Liebrecht v. Crandall, 110 Minn., 454, 126 N. W., 69 591

Lim Teco v. Collector of Customs, 24 Phil., 84 707

Lock V. Vulliamy, 5 B & Ad., 600, 27 E. C. L., 255 976

Loomis V. Bourn, 63 Conn., 445, 28 Atl., 569 880

Lord V. Bldg. Assn., 37 Md., 320 665

Lord V. Colvin, 28 L. J. Ch., 366 (1859) - 94

Lord V. Goldberg, 81 Cal., 596, 22 Pac, 1126 731

Lord V. Robinson, 37 Md., 320 760

Lord V. Wood, 120 la., 303, 94 N. W., 842 595

Lorenzo v. Collector of Customs, 15 Phil., 559 707

Louisville Mfg. Co. v. Welch, 10 How. (U. S.), 461, 13 L. ed.,

497 266

Louisville etc. R. Co. v. Harvey, 99 Ky., 157, 34 S. W., 1069.... 731, 732
Louisville etc. R. Co. v. Offutt, 99 Ky., 427, 59 Am. St. Rep.,

467, 36 S. W., 181 731

Louisville etc. R. Co. v. Ohio Valley Co., 161 Ky., 212, 170 S. W.,

633 - - 611

Louisville etc. R. Co. v. Queen City Coal Co., 99 Ky., 217, 35

S. W., 626 607

XXXVl I EXTRATERRITORIAL CASES.

Page.

Lowe V. Carter, 54 N. C, 352 695

Lowe V. Joliffe, 1 W. Blackstone, 365 649

Lowrey v. Lowrey, 108 Ga., 766, 33 S. E., 421 837

Lowry v. Cooper, 21 Ind., 269 751

Ludington v. Renick, 7 W. Va., 273 946

Ludwig V. Cramer, 53 Wis., 193, 10 N. W., 81 487

Lumley v. Wagner, 1 De G. McN. & G., 604 768

Lynch v. Clarke. I Sandf. Ch. (N. Y.), 583 702

Lynch v. Fisk Rubber Co., 209 Mass. 16, 95 N. E., 400 593

Lyon V. Ogden, 85 Me., 374, 27 Atl., 258 145

Madrigal v. Stevenson, 15 Philippine, 38 586

Main v. Main (N. J., Ch., 1892), 24 Atl., 1024 496

Maltas V. Maltas, 1 Rob. Eccl., 67 99, 145, 147, 148

March v. Boyden, 33 R. I., 519, 82 Atl., 393 592

Marsh v. Dodge, 66 N. Y., 533 955

Martin v. N. Y. L. Ins. Co., 148 N. Y., 117, 42 N. E., 416 731

Martinez v. Tan, 12 Philippine, 731 367

Marvin v. Bennett, 26 Wend. (N. Y.), 169 946

Mason v. Cowan, 1 B. Mon., 7 751

Mason v. Pritchard, 12 East, 227 958

Mathews v. Wallwyn, 4 Ves, 118 390

Mathews v. Warner, 4 Ves. Jr., 186 627

Mathewson v. Iron Foundry, 20 Fed., 281 319

Matter of Acker, 5 Dem. (N. Y.), 19 648

Matter of Davis, 45 Misc., 554, 92 N. Y. SuppL, 968, affirmed,
105 App. Div., 221, 93 N. Y. Suppl., 1004, and again in 182

N. Y., 468, 75 N. E., 530 628

Matter of Hamilton, 10 Abb. N. Cas., 79 817

Matter of Nies, 13 N. Y. St. Rep., 756 628

Mattison v. Mattison, 1 Strobh. Eq. (SC) 387, 47 Am Dec, 541 324

Mattox V. U. S., 156 U. S., 237, 39 L. ed., 409 849

May V. May, 2 Strange., 1073 700

McAleer v. State, 46 Neb., 116, 121, 64 N. W. Rep., 358 375

McAllister v. Hoffman, 16 S. & R., 147 643

McBlair v. Gibbes, 17 How., 232, 15 L. ed., 132 643, 646

McClure v. Review Publishing Co., 38 Wash., 160, 80 Pac, 303.. 362

McCrady v. Jones, 36 S. C, 136, 15 S. E., 430 928

McCullough Iron Co. v. Carpenter, 67 Md., 554, 11 Atl., 176-.. 731
McDermid v. McDermid, U. S. Ct. for China, March 18, 1907.. 325, 369

McDonald v. Bewick, 51 Mich., 79, 16 N. W., 240 580

McDonald v. Gardner, 56 Wis., 35, 13 N. W., 689 747

McDonald v. Shaw, 81 Ark., 235, 98 S. W. 952 697

McDonough v. Evans Marble Co., 112 Fed., 634 842

McGill V. McGill, 19 Fla., 341 -917

REFERENCES. XXXVIJ

Page.

McGinn v. Tobey, 62 Mich., 252, 28 N. W., 818 908

Mclndoe v. St. Louis, 10 Mo., 575 760

Mclntire v. Mclntire, 19 D. C, 482; 162 U. S., 383, 40 L. ed.,

1009 627

McLane v. Maurer, 28 Tex. Civ. App., 75, 66 S. W., 693 728

McMullen v. Hoffman, 174 U. S., 639, 43 L. ed., 1117, 19 Sup.

Ct. Rep., 839, affirming 83 Fed., 372 643

McMullen v. Lookwood, 4 Del. Ch., 568 944

Mehurin v. Stone, 37 O. St., 57 751

Meincke v. Falk, 55 Wis., 427, 13 N. W., 545 747

Mellon's Estate, 28 W. N. C, 120 888

Merchants National Bank v. Nichols, 223 111., 41, 79 N. E., 38,

7 L. R. A. (N. S.), 753 1005

Metzradt v. Modern Brotherhood, 112 la., 522, 84 N. W., 498.... 673

M'Ginley v. Cleary, 2 Alaska, 269 428

Milam v. Stanley (Ky.), Ill S. W., 296, 17 L. R. A. (N.

S.), 1126 715

Miller v. Simpson, 107 Va., 476, 59 S. E., 378, 18 L. 'R. A.

(N. S.) , 962 760

Mills V. Lee, 6 T. B. Hon. (Ky.), 91, 17 Am. Dec, 118 908

Mine etc. Co. v. Creel (Tex. Civ. App.), 79 S. W., 67 946

Minneapolis v. Reum, 56 Fed., 57, 12 U. S. App., 466, 6 C.

C. A., 31 381

Minor v. Stevens, 65 Wash., 423, 118 Pac, 313, 42 L. R. A.

(N. S.) , 1178 593

Missouri etc. R. Co. v. Empire Express Co. (Tex. Civ. App.),

173 S. W., 222 611

Missouri etc. R. Co. v. Sneed, 85 Ark., 293, 107 S. W., 1182.... 609

Mitchel V. Reynolds, 1 P. Wms., 181 (1711) 766

Moffett V. City of Rochester, 178 U. S., 373, 44 L. ed., 1108,

(reversing 91 Fed. Rep., 28), 82 Fed. Rep., 256 585,586

Moister v. Moore, 96 U. S., 76, 24 L. ed., 826 319

Montgomery v. City Council, 99 Fed., 825, 830 946

Montgomery v. Kellogg, 43 Miss., 486 958

Moore v. Copp, 119 Cal., 429, 51 Pac, 630 945,946

Moore v. Missouri, 159 U. S., 673, 16 Sup. Ct., 179 307

Moore v. Ry. Co., 173 Mass., 335, 53 N. E., 816, Thayer's

Cases, 51 845

Moore v. U. S., 160 U. S., 268, 269, 16 S. Ct., 294, 40 L. ed., 422.. 683

Morris v. Morton's Ex'rs. (Ky. 1892), 20 S. W., 287 627

Morse v. Stearns, 131 Mass., 389 (1881) 694,696

Mosnat v. Snyder, 105 la., 500, 75 N. W., 356 487

Moss V. Decatur etc. Co., 93 Ala., 269 731

Moulton V. Doran, 10 Minn., 67 (49) 972

Mount Holly v. Andover, 11 Vt., 226, 34 Am. Dec, 685 319

Mt, Hope Nurseries v. Jackson, 36 Okla., 273, 128 Pac, 250 908

XXXVlll I EXTRATERRITORIAL CASES.

Page.

Mullen V. State, 45 Ala., 43, 6 Am. Rep., 691 625

Muller V. Kelly, 116 Fed., 545 907

Mummenhoff v. Randall, 19 Ind. App., 44, 49 N. E., 40 581

Muiioz V. Collector of Customs, 20 Phil., 494 707

Murphy Hardware Co. v. Southern Ry. Co., 150 N. C, 703, 64

S. E., 873 607

Murray v. McCarty, 2 Munf. (Va.), 394 708

Murray v. State, 25 Fla., 528, 6 So. Rep., 498 454

Murrell v. State, 46 Ala., 89, 7 Am. Rep., 592 678

Nab V. Heald, 41 111., 326 880

Nash V. Towne, 5 Wall., 689, 889, 18 L. ed., 527 955, 956

National Bank v. Matthews, 98 U. S., 621, 628, 25 L. ed., 188.. 760

National Bank v. Millard, 10 Wall. (U. S.), 152, 19 L. ed., 897.. 108

National Bank v. Whitney, 103 U. S., 99, 26 L. ed., 433 760

Nat. Enameling etc. Co. v. Haberman, 120 Fed., 415 766, 767, 825

Nat. etc. Ass'n. v. Sparks, 83 Fed., 225 478

Nave V. Wilson, 12 Ind. App., 38 N. E., 876 645

Needham v. Bremmer, Law Rep., 1 C. P., 583 935

Nephi Irrigation Co. v. Jenkins, 8 U., 369, 31 Pac, 986 928

Newby v. Von Oppen, L. R., 7 Q. B., 293 639

Newcomb v. Wood, 97 U. S., 581, 24 L. ed., 1085 928

Newman's Estate, 75 Cal., 213, 7 Am. St. Rep., 146 482

Niboyet v. Niboyet, 4 P. D., 1, 12 482

Nichols V. State, 8 Ohio St., 435 417

Noel V. Drake, 28 Kan., 265, 42 Am. Rep., 162 730

Noerr v. Brewer, 1 MacArthur (D. C), 508 405

Nolan V. New, 31 La. Ann., 552 526

Noonan v. Bradley, 9 Wall., 394, 19 L. ed., 757 111,302

Nordenfelt v. Maxim etc. Co. Ltd., 1894, A. C. 535 767, 821

Norrington v. Wright, 115 U. S., 188, 29 L. ed., 366 297,300

337, 771, 981

North Neb. etc. Ass'n. v. Box, 57 Neb., 302, 77 N. W., 770 94G

North Noonday Milling Co. v. Orient Mining Co., 1 Fed.,

522, 527 702

Northwestern Mutl. L. Ins. Co. v. Stevens, 71 Fed., 258 651

Noyes v. Marsh, 123 Mass., 286 730

Nueva Anna, The, 6 Wheat. 193, 5 L. ed., 239 260

Nugent v. Smith, 1 C. P. D., 428 606

Oakdale Mfg. Co. v. Garst, 18 R. I., 484, 28 Atl., 973, 23 L. R.

A., 639, 49 Am. St. Rep., 784 767

Oakes v. Merrifield, 93 Me., 297, 45 Atl., 32 433

Oates V. Jackson, 2 Strange, 1171 895

REFERENCES. XXXIX

Page.

Opinions, Attorneys General —

VII, 495 176

507 870,884

518 30

565 37

722 57

IX, 32 870

359 708

XI, 474 27

XIV, 297, 298 709

XXX, 271 403

462 542

Opinion, Solicitor State Dept., March 2, 1917 „ 668

Oreg-on Steam Nav. Co. v. Winsor, 20 Wall., 64, 22 L. ed.,

315 ...- 766, 768, 827

O'Reilly v. Davis, 136 App. Div., 386, 120 N. Y. Suppl., 883.. 592

Oriental Mut. Ins. Co. v. Wright, 1 Wall., 456, 17 L. ed., 505.... 302

Orr V. Ward, 73 111., 318 731

Osborne v. Shilling, 74 Kan., 675, 88 Pac, 258, 11 Ann. Cas.,

319 760

Outlaw V. Hurdle, 46 N. C, 150 714

Owens V. Davenport, 39 Mont., 555, 104 Pac, 682, 28 L. R. A.

(N. S.), 996 645

Panaud v. Jones, 1 Cal., 488, 506 649

Paradine v. Jane, Aleyn, 26 (1647) 982

Paragon Oil Co. v. Hall, 7 Ohio C. C, 240 766

Parish v. Yazoo etc. R. Co., 103 Miss., 288, 60 So., 322 611

Parker v. Ausland, 13 S. D., 169, 82 N. W., 402 861

Parker v. State, 61 N. J. L., 308, 39 Atl. 651 (affirmed 62 N.

J. L., 801) 330

Patton's Appeal, 31 Pa. St., 465 913

Peacock v. Cummings, 46 Pa. St., 434 731

Pearce v. Pearce, 30 Mont., 269, 76 Pac, 289 837

People v. Ah Ping, 27 Calif., 489 962

People v. Bliven, 112 N. Y., 82, 19 N. E., 639 415

People v. Chapman, 62 Mich., 280, 28 N. W., 896 963

People V. Connelly, 38 Pac. (Cal.), 42 685

People V. Courtney, 94 N. Y., 490 902

People V. Dyle, 21 N. Y., 578 902

People V. Fine, 77 Cal., 147, 19 Pac, 269 678

People V. Hovey, 92 N. Y., 554 902

People V. Hurst, 62 Mich., 276, 28 N. W., 838, Beale's Crim.

Cas., 716 684

People V. Jacobs, 29 Cal., 579 624

People V. Martinez, 13 Porto Rico, 246 845

Xl I EXTRATERRITORIAL CASES.

Page.

People V. McGarry, 136 Mich., 316 902

People V. McMakin, 8 Cal., 547 623

People V. Miller, 169 N. Y., 339, 62 N. E., 418 127

People V. Mitchell, 139 Iowa, 455, 116 N. W., 808 624

People V. Nelson, 3 Lans. (N. Y), 394 665

People V. N. Y. etc. R. Co., 28 Hun. (N. Y.), 543, 9 Am. & Eng.

R. Cas., 1 607

People V. Ross, 66 Mich., 94, 33 N. W., 30 916

People V. Star Co., 135 App. Div., 517, 120 N. Y., 498 987

People V. Sylva, 143 Cal., 62, 76 Pac, 814 131

People V. Wasservogel, 77 Cal., 173 127

People V. Webster, 28 Col., 223, 64 Pac, 207 854

Pepper v. Western Union Tel. Co., 87 Tenn., 554, US. W.,

783 587,588

Perkins v. Jones, 84 Va., 358, 4 S. E., 833, 10 Am. St. Rep.,

863 894

Perrin v. United States, 232 U. S., 478, 58 L., ed., 691 313

Perry v. State, 3 Greene (la.), 550 836

Perry v. Wheeler, 12 Bush, 541 731

Petrie v. Hannay, 3 T. R., 418 646

Pettersen v. Winn, 5 Pet. (U. S.), 242 85

Phalen v. Clark, 19 Conn., 421, 50 Am. Dec, 253 644

Phoenix Bank v. Risley, 11 U. S., 125, 28 L. ed., 374 108

Phipps V. Pitcher, 6 Taunt., 220 649

Pickett V. Casualty Co., 60 S. Car., 477, 38 S. E., 160, 629 947

Pierce v. R. Co., 173 U. S., 1, 43 L. ed., 591 976

Ping-On, The, v. Blethen, 11 Fed., 607 179

Pitcairn v. Pitcairn, 201 Pa. St., 368, 50 Atl., 963 324

Pitt V. Dacre, 1876, 3 Ch. D., 295 83

Pittsburgh etc. R. Co., v. Hazen, 84 111., 36, 25 Am. Rep., 422.. 608
Pittsburgh etc. R. Co. v. Hollowell, 65 Ind., 188, 32 Am. Rep.,

63 608

Planters' Bank v. Union Bank, 16 Wall., 483, 21 L. ed., 473-. 646

Playfor v. Telegraph Co., Allen, Tel. Cases, 437 587

Porter v. Collins, 90 Ala., 510, 8 So., 80 946

Prame v. Ferrell, 166 Fed., 702 825,829

Prentiss v. Ledyard, 28 Wis., 131 „ 731

Price V. Green, 16 M. & W., 346 827

Pritchard v. Norton, 106 U. S., 124, 27 L. ed., 104 176

Prize Cases, 2 Black, 696, 17 L. ed., 459 260

Pronovost v. United States, 232, U. S., 487, 58 L. ed., 696 313

Pyle V. Pyle, 158 111., 289, 41 N. E., 999 673

Queen v. Anderson, L. R., 1 Crown Cases Reserved, 161 62, 63

^v. The Inhabitants of Cluworth, 6 Mod., 163, 1 Stalk, 359.. 985

V. Railway Co., 3 Q. B., 267 985

REFERENCES. xli

Page.

V. Saintiff, 6 Mod., 255 985

Quinby v. Duncan, 4 Harr. (Del.), 383 381

Ragland v. Green, 14 Sm. & Mar. (Miss.), 194 913

Randall v. Brigham, 7 Wall. (U. S.), 523, 19 L. ed., 285 835

Randall v. Peerless Motor Car Co., 212 Mass., 352, 99 N. E.,

221 728

Re Dallas Horse Repository, Hongkong Supreme Court, October

31, 1910 227

Re Gee Hoh, 71 Fed., 274 701

Re Lord Southampton's Estate, Allen v. Lord Southampton

(1880), 16 Ch. D., 178, 50 L. J. Ch., 218, 43 L. T., 687, 29 W.

R., 231 390

Re May, 1 N. W. (Mich.), 1021 192

Redden v. Covington, 29 Ind., 118 880

Reeves v. State, 95 Ala., 31, 41, 11 So., 158 683

Reg. V. County of Wilts, 1 Salk, 359 985

Reg. V. Great North of England Ry. Co., 9 Q. B., 315, 2 Cox,

C. C, 70, 7 Eng. Rul. Cas., 466 987

Reg. V. Norman, Carr. & Marsh, 501, 41 E. C. L., 274, 14 Am.

Crim. Rep., 326 684

Reid V. Terwilliger, 116 N. Y., 530, 22 N. E., 1091 595

Reilley v. U. S., 106 Fed., 896 799

Renshaw v. Gams, 7 Pa. St., 117 945

Reuss v. Picksley, L. R., 1 Exch., 342, 35 L. J. Exch., 218 242

Rex v. City of Gloucester, Dougherty's Crown Circ. Ass., 359.... 985

Rex v. Corporation, Liverpool, 3 East, 86 985

Rex v. Flintan, 1 B. & Ad., 227 935

Rex V. Inhabitants, Great Boughton, 5 Bur., 2700 985

Rex V. Mayor, Stratford-on-Avon, 14 East, 348 985

Rex v. Merely, 2 Burr., 1040 880

Reynolds v. U. S., 98 U. S., 145, 25 L. ed., 244 493

Rhoades v. R. Co., 49 W. Va., 500, 39 S. E., 209 977

Rhodes Co. v. Frazier, 55 S. W. (Tex.), 192 968

Rice V. Mfg. Co., 2 Cush. (Mass.), 80 907

Rich v. Rayle, 2 Humph (Tenn.), 404 710

Richards & Co. Inc. v. Wreschner, 156 N. Y. Supp., 1054 618

Richardson v. Goddard, 23 How., 28, 16 L. ed., 412 90

Richardson v. M. Samuel & Co., L. R., 1, Q. B., 261 303

Richter v. Jerome, 25 Fed., 679 812

Rigney v. Rigney, 127 N. Y., 408, 24 Am. St. Rep., 462 482

Riley v. State, 16 Conn., 47 456

Roa v. Collector of Customs, 23 Phil., 315 707

Robertson v. State, 109 Ind., 79, 10 N. E., 582 640

Rogers v. State, 117 Ala., 192, 23 So., 82 915

Rookwood, The, 10 L. T. R., 314 303

xlii I EXTRATERRITORIAL CASES.

Page.

Ronan v. Ronan, 32 Misc., 467, 66 N. Y. Supp., 799 534

Rooney v. U. S., 203 Fed., 928 415

Rose V. Mimely, 4 Cranch, 241, 2 L. ed., 241 260

Roselle v. Beckemeir, 134 Mo., 380, 35 S. W., 1132 645

Ross V. Ross, 129 Mass., 243, 37 Am. Rep., 321 442

Roszel V. Roszel, 73 Mich., 133, 40 N. W., 858, 16 Am. State

Rep., 569 367

Roth V. Roth, 104 111., 35, 44 Am. Rep., 81 482

Rousillon V. Rousillon, L. R. 14 Ch. Div., 351 767, 824

Royal Brewing Co. v. Missouri etc. R. Co., 217 Fed., 146 606

Ruddell V. Landers, 25 Ark., 238, 94 Am. Dec, 719 428

Runyan v. Costar's Lessee, 14 Pet., 122, 10 L. ed., 382 760

Russell V. Clark, 7 Cranch (U. S.), 69, 3 L. ed., 271 266

Russell V. Kelly, 44 Cal., 641 486

Russell V. Place, 94 U. S., 606, 24 L. ed., 214 278

Russell & Co. V. Stevenson, 34 Wash., 166, 75 Pac, 627 946

St. Clair v. U. S., 154 U. S., 152, 38 L. ed., 936 397, 792

St. Louis etc. R. Co. v. Keefe, 113 Ark., 215, 168 S. W., 131 609

St. Louis etc. R. Co. v. Leder Bros., 87 Ark., 298, 112 S. W.,

744 611

Samuels v. Oliver, 130 111., 73, 229 N. E., 499 645

Sandage v. Manufacturing Co., 142 Ind., 148, 41 N. E., 380.- 956

Sands v. Hickey, 135 Ala., 322, 33 So., 827 913

Saxonia etc. Co. v. Cook, 7 Colo., 569, 4 Pac, 1111 976

Scheming v. Scheffling, 44 N. J. Eq., 438, 15 Atl., 577 496

Schmidt v. North Yakima, 12 Wash., 121, 40 Pac, 790 747

Schroeder v. Trading Co., 95 Fed. 296 977

Schumacher v. Brewing Co., 78 Minn., 50, 80 N. W., 838 346

Schuylkill County v. Copley, 67 Pa. St., 386, 5 Am. Rep., 441.. 908, 909

Scott V. Ford, 52 Or., 288, 97 Pacific, 99 _ 710

Scott V. United States, 12 Wall., 443, 20 L. ed., 438 584

Sears v. Dillingham, 12 Mass., 358 649

Second United Presbyterian Church v. First United Presby-
terian Church, 71 Neb., 563, 99 N. W., 252 697

Selden v. Myers, 20 How. (U. S.) 506, 15 L. ed., 976 909

Sergeson v. Sealey, 2 Atk., 412 673

Seringapatam, The, 3 W. Rob., 38 21

Seward v. Garlin, 33 Vt., 583 902

Shackleford v. State (Tex. Cr. App.), 538, 53 S. W., 884 675

Shanks v. Dupont, 3 Pet. (U. S.), 242, 7 L. ed., 666 706

Sharp V. Taylor, 2 Phillips (22 Eng. Ch.), 801 644,645

Sharpe's Estate, 15 W. N. C, 419 888

Sharon v. Hill, 24 Fed., 731 126

Sharon v. Sharon, 67 Cal., 193 369

REFERENCES. xliii

Page.

Shaw V. Quincy Mining Company, 145 U. S., 444, 36 L. ed., 768 638

Shelton v. Ellis, 70 Ga., 297 „ 582

Shepherd v. Gambill, 96 S. W. (Ky.), 1104 977

Sherwood v. Alvis, 83 Ala., 115, 3 So., 307, 3 Am. St. Rep.,

695 760

Shingleur v. Western Union Tel. Co., 72 Miss., 1030, 18 So.,

425 588

Shoemaker v. Brown, 10 Kan., 383 880

Shoptaugh V. St. Louis etc. R. Co. 147 Mo. Appl. 8, 126 S.

W., 752 611

Simpson v. Bloss, 7 Taunt., 246, 2 Eng. Com. L., 346 644

Singer v. Grand Rapids Match Co., 117 Ga., 86, 43 S. E., 755 588

Slattery v. Slattery, 139 la., 419, 116 N. W., 608 837

Slaughter v. Gerson, 13 Wall., 379, 20 L. ed., 627 946

Small V. Swan, 1 Me., 133 880

Smith V. Coney, 6 Ves., 42 696

Smith V. Coon, 89 Neb., 776, 132 N. W., 555 „... 593

Smith V. Mackin, 4 Lans., 41 585

Smith V. Rowe, 4 Cal., 6 „ 928

Smith V. Sheerley, 12 Wall. (U. S.), 358, 361, 20 L. ed., 430 759

Smith V. Smith, 45 Ala., 264 534

Smith V. Smith, 134 N. Y., 62, 31 N. E., 258 908

Smith V. State, 1 Yerg. (Tenn.), 228 852

Smith V. Thesmann, 20 Okla., 133, 93 Pac, 977 959

Smith V. U. S., 157 Fed., 721 801

Snedekers v. Allen, 2 N. J. L., 32, 41 649

Sneed v. People, 38 Mich., 348 832

Snell V. Insurance Co., 98 U. S. 85, 25 L. ed., 52 585

Solenberger v. Stickler's Adm'r., 110 Va., 273, 65 S. E., 566.... 946

Sorenson v. Keyser, 52 Fed., 163 303

Southern Express Co. v. State, 1 Ga. App., 700, 58 S. E.,

67 984, 986, 987

Southwell V. Bowditch, 1 C. P. D., 374, 45 L. J. Rep., 630.... 438, 439
Spark, The, v. Lee Choi Chum, 1 Sawy (U. S.), 713, 22 Fed.

Cas. No. 13206 179,377,720,879

Spies V. Rosenstock, 87 Md., 14, 39 Atl., 268 429, 433

Sprague v. Warren, 26 Neb., 326, 41 N. W., 1113, 3 L. R. A., 679.. 117

Spreckels v. Ward, 12 Phil., 418, 7 Off. Gaz., 146 701

Spring V. Dahlman, 34 Neb., 692, 52 N. W. Rep., 567 456

Spurgeon v. McElwain, 6 Ohio, 442, 27 Am. Dec, 266 429

Stacy V. Ross, 27 Tex., 3, 84 Am. Dec, 604 908, 909

Stallman v. Kimberly, 121 N. Y., 393, 24 N. E., 939 991

Standard Oil Co. v. U. S., 221 U. S., 1, 55 L. ed., 619 277

Standard Oil Co. v. Van Etten, 107 U. S., 325, 27 L. ed., 319.. 946

State V. Abram, 4 Ala., 272 880

State V. Atchison, 71 Tenn., 729 987

Xliv I EXTRATERRITORIAL CASES.

Page.

State V. Barry, 45 Mont., 598, 124 Pac, 775 623

State V. Bertheol, 6 Blackford (Ind.), 674, 39 Am. Dec, 442.... 330

State V. Bezou, 48 La. Ann., 1369, 20 So., 892 832

State V. Brooks, 92 Mo., 542, 5 S. W., 257 _ 678

State V. Burchinal, 4 Harr. (Del.), 572 328

State V. Butler, 21 S. C, 353 684

State V. Cherry, 33 N. C, 475 624

State V. Church, 63 N. C, 15 623

State V. Comr's., 54 Md., 426 673

State V. Doud, 7 Conn., 384 413

State V. Ellis, 26 N. J. L., 219 542, 543

State V. Epperson, 27 Mo., 255 623

State V. Farr, 33 la., 553 - 962

State V. Feuerhaken, 96 Iowa, 299, 65 N. W., 299 863

State V. Glenn, 14 S. C, 118 '. 880

State V. Great Works Co., 20 Me., 41 986

State V. Herrin^on, 21 Ark., 195 916

State V. Herron, 12 Mont., 230, 33 Am. St. Rep., 576 624

State V. Jackson, 32 S. C, 27, 10 S. E., 769 623

State V. Lewis, 51 Or., 467, 94 Pac, 831 794

State V. Lyon, 45 N. J. L., 272 684

State V. McAllister, 24 Me., 139 902

State V. McFadden, 42 Wash., 1, 84 Pac, 401 623

State V. McGrath, 92 Mo., 355, 5 S. W., 29 665

State V. Mclntyre, 53 Me., 214..... 928

State V. Morris & Essex Ry., 23 N. J. Law, 360 987

State V. Nappers, 6 Nev., 113 624

State V. Ohio & Miss. R. Co., 23 Ind., 363 986

State V. Orwig, 25 la., 280 928

State V. Passaic Co., Agr. Soc, 54 N. J. L., 260, 23 Atl., 680.... 987

State V. Pierce, 65 Iowa, 85 21 N. W., 195 329

State V. Plym, 43 Minn., 385, Thayer's Cas., 60, 45 N. W.,

848 - 651,653

State V. Poe, 123 la., 118, 98 N. W., 587, 101 Am. St. Rep.,

307 - ^ 678

State V. Portland, 74 Me. 268, 43 Am. Rep., 586 986

State V. Putnam, 53 Or. 266, 100 Pac, 2 487

State V. R. Co., 23 N. J. L., 364, 365 „... 985

State V. Rawles, 65 N. C, 334 623

State V. Roe, 12 Vt., 93 „ 636

State V. Salge, 1 Nev. 455 381

State V. Smith, 67 Me., 328 636

State V. Stevens, 67 la., 557, 25 N. W., 777 678

State V. Sullivan, 43 S. C, 205, 21 S. E., 4 623

State V. Tally, 102 Ala., 25, 15 So., 722 963

State V. Ward, 61 Vt., 153 902

REFERENCES. xlv

Page.

State V. Webb, 25 Iowa, 235 329

State V. Wilson, 121 N. C, 650, 28 S. E. Rep., 417 307

State V. Wise, 32 Or., 280, 50 Pac, 800 306

State ex rel. v. Bearing, 180 Mo., 53, 79 S. W., 454 876

State ex rel. Renick v. St. Louis Co. Ct., 38 Mo., 402 880, 882

Stave V. Anderson, 29 La. Ann., 774 832

Steehler v. Steehler, No. 461 (U. S. Ct. for China) 692

Stephens v. Howe, 34 N. Y. Super. Ct., 133 779

Sterritt v. Robinson, 17 la., 61 880, 881

Stewart v. R. Co., 141 Ind., 55, 40 N. E., 6 907

Stitt V. Huidekopers, 17 Wall. 385, 21 L. ed., 644 267

Stokes V. U. S., 157 U. S., 187, 39 L. ed., 667 348

Stone V. Cooper, 2 Den. (N. Y.), 299 364

Strader v. Graham, 10 How. (U. S.), 82, 13 L. ed., 337 483

Strasburger v. Dodge, 12 App. Cas. (D. C), 48 950

Stratton v. McKinnie (Tenn. Ch.), 62 S. W., 636, 638 895,896

Strong V. Gutierrez, 213 U. S., 419, 53 L. ed., 853 861

Sturges V. Crowninshield, 4 Wheat. (U. S.), 122, 4 L. ed., 529.... 898

Sullivan v. Thompson, 99 Mass. 259 91

Supreme Assembly v. McDonald, 59 N. J. L., 248, 35 Atl.,

1061 700

Supreme Lodge v. Fletcher, 78 Miss., 377, 29 So., 523 673

Sutton V. Com., 85 Va., 128 902

Succession of Bradford, 124 La., 44, 49 So., 972 697

Succession of Ehrenberg, 21 La. Ann., 280, 99 Am. Dec, 729.... 715

Succession of Justus, 48 La. Ann., 1096, 20 So., 680 700

Swift & Co. V. Short, 92 Fed., 567, 570 795

Swigert v. Tilden, 121 Iowa, 650, 97 N. W., 82, 63 L. R. A.,

608 766

Sy Joe Lieng v. Sy Quia, 16 Philippine, 137 795,902

Sykes v. Beadon, 11 Ch. Div., 170, 48 L. M. J. Ch. 522, 40

L. T. Rep. (N. S.), 243, 27 Wkly. Rep., 684 646

Sykes v. Life Ins. Co., 148 N. C, 13, 61 S. E., 610 945

Sylvis V. Sylvis, 11 Colo., 319, 17 Pac, 912 837

Tallis V. Tallis, E. & B., 391, 22 L. J., 185 766

Tate V. Tate, 11 Humph., (Tenn.) 464 843

Tatum V. Kelly, 25 Ark., 209, 94 Am. Dec, 717 428

Taylor v. Pope, 5 Coldw., (Tenn.), 413 880

Taylor v. Tolen, 38 N. J. Eq., 91 697

Taylor v. U. S., 89 Fed., 954 794,801

Taylor v. White, 160 N. C, 38, 75 S. E., 941 325

Taza3nmon v. Twombley, 5 Sawy (U. S.), 79, 23 Fed. Cas.,
No. 13810 179, 720

Xlvi I EXTRATERRITORIAL CASES.

Page.

Telegram Newspaper Co. v. Com., 172 Mass. 293, 52 N. E.,

445, 44 L. R. A., 159, 70 Am. St. Rep., 280 987

Tenant v. Elliot, 1 Bos. & Pul., 3 642

Terre Haute Brewing Co. v. Hartman, 19 Ind. App., 596, 49

N. E., 864 433

Texas etc. R. Co. v. Reis, 183 U. S., 621, 46 L. ed., 358 303

Thayer v. City of Boston, 15 Gray (Mass.), 347 694,696

Thacker v. Hardy, 42 Q. B. D., 685 115, 116

Thrasher's Case, Moore, International Law Digest, III, 818 95

Thomas Fletcher, The, 24 Fed., 481 473, 475

Thomas v. Stevens, 4 Johns. Ch. (N. Y.), 607 695

Thorndike v. City of Boston, 1 Mete. (Mass.), 242 141

Thornton v. Kempster, 5 Taunt., 786 242

Thorp V. State, 59 Tex. Cr., App. 517, 129 S. W., 607, 29 L. R. A.

(N. S.) , 421 678

Timon v. State, 34 Tex. Cr. App., 363, 30 S. W., 808 916

Tisdale v. Conn. Mut. Ins. Co., 26 la., 170, 96 Am. Dec, 136.... 651, 652
Tode V. Gross, 127 N. Y., 480, 28 N. E., 469, 13 L. R. A., 652,

24 Am. St. Rep., 475 767

Toledo etc. R. Co. v. Wren, 78 Ohio St., 137, 84 N. E., 785.... 606, 611

Tolen V. Tolen, 2 Blackf. (Ind.), 407, 21 Am. Dec, 742 483

Toll V. State, 40 Fla., 169, 23 So., 942 210

Trenton Potteries Co. v. Oliphant, 58 N. J. Eq., 507, 43 Atl.,

723, 46 L. R. A., 255. 78 Am. St. Rep., 612 766

Tritt V. Bize, 51 Ga., 494 880

Trigg V. Read, 5 Humph. (Tenn.), 529, 42 Am. Dec, 447 944

Tsoi Yii V. U. S., 129 Fed., 585 721

Trustees v. Peaslee, 15 N. H., 317 697

Turpin v. Gresham, 106 Iowa, 187, 76 N. W., 680 945

Tyson v. Passmore, 2 Pa. St., 122 945

Underwood v. Barker, 1 Ch. Div. (1898-9), 300 766

Union Central Ins. Co. v. Hollowell, 14 Ind. App., 611, 43

N. E., 277 673

Union Lumber Co. v. Schouten Co., 25 Cal. App. 80, 142 Pac,

910 946

United Surety Co. v. American Fruit Product Co., 238 U. S.,

140, 59 L. ed., 1238, 35 Sup. Ct., 828 660

Upton V. Tribilcock, 91 U. S., 45, 23 L. ed., 303 907

U. S. V. Ablaza, 1 Phil., 740, 1 Off. Gaz., 143, 412 517

U. S. V. Addyston Pipe & Steel Co., 85 Fed., 271 766

U. S. V. Adolfo, 12 Phil., 299, 7 Off. Gaz., 41 701

U. S. V. Allred, 155 U. S., 591, 39 L. ed., 273 928, 931

U. S. V. American Tobacco Co., 221 U. S., 106, 55 L. ed., 663.- 277

REFERENCES. xlvii

Page.

U. S. V. Averill, 130 U. S., 335, 32 L. ed., 977 892

U. S. V. Bede, 24 Fed. Cases, 1063 329

U. S. V. Benner, 5 Cranch (C. C), 347, 24 Fed. Cases, 1089.. 329

U. S. V. Bowen, 100 U. S., 508, 25 L. ed., 631 404

U. S. V. Cassidy, 67 Fed., 698 794, 901

U. S. V. Cole, 5 McLean, 513, 25 Fed. Cas., 494 903

U. S. V. Columbus, 5 Cranch (C. C), 304, 25 Fed. Cases, 589.. 330

U. S. V. Conner, 1 Cranch (U. S. C. C), 102 210

U. S. V. Dick, 30 Phil., 80, 13 Off. Gaz., 778 493

U. S. V. Doo-noch-keen, 2 Alaska, 624 405

U. S. V. Elder, 4 Cranch (C. C), 507, 25 Fed. Cases, 996 329

U. S. V. Freight Assn., 166 U. S., 290, 41 L. ed., 1001 277

U.- S. V. Gee Lee, 50 Fed., 271 721

U. S. V. Gillies, Pet. (C. C), 159, 3 Wheeler Crim. Cas., 308,

25 Fed. Cas., 1321 708

U. S. V. Grafton, 6 Phil., 55 517

U. S. V. Green, 115 Fed., 343 903

U. S. V. Harper, 33 Fed., 471, 474 180,683

U. S. V. Haskins, 3 Sawy, 262, 26 Fed. Cas., 213 402, 404

405, 406, 721

U. S. V. Holmes, 5 Wheat., 412, 5 L. ed., 122 61

U. S. V. Howell, 56 Fed., 21 799

U. S. V. Irwin, 26 Fed. Cas., 546 303

U. S. V. Johnson, 26 Fed., 682 962, 963

U. S. V. Johnson, 228 Fed., 253 963

U. S. V. Kosel, 24 Philippine, 594 902

U. S. V. Larviere, 93 U. S., 188, 23 L. ed., 846 313

U. S. V. Louisiana, 123 U. S., 32, 31 L. ed., 69 880

U. S. V. Malabanan, 9 Phil., 262 916

U. S. V. Maxwell Land Grant Co. 121 U. S., 325, 30 L. ed.,^

949, 7 Sup. Ct., 1015 909

U. S. V. McAndrews & Forbes Co., 149 Fed., 823 987

U. S. V. McCrory, 175 Fed., 802 348

U. S. V. Molo, 5 Phil., 414, 4 Off. Gaz., 57 412, 517

U. S. V. Morrison, 4 Pet., 124, 7 L. ed., 804 472

U. S. V. Navarro, 3 Phil., 143 902

U. S. V. New York Herald Co., 159 Fed., 296 987, 989

U. S. V. Newth, 149 Fed., 302 405,407

U. S. V. Ocampo, 18 Phil., 54 (affirmed, 234 U. S., 91, 58 L.

ed., 1231) 487, 494

U. S. V. Ortiz, 8 Phil., 753 494

U. S. V. Palmer, 3 Wheat., 610, 4 L. ed., 471 260

U. S. V. Prautch, 10 Phil., 562 494

U. S. V. Pridgeon, 153 U. S., 48, 38 L. ed., 631 126

U. S. V. Reyes, 3 Phil., 3 783,784

14008 O. W. iv

Xlviii I EXTRATERRITORIAL CASES.

Patre.

U. S. V. Rindskopf, 6 Biss., 259, 27 Fed. Cas., 813 800

U. S. V. Schindler, 10 Fed., 547, 550 902

U. S. V. Scott, 139 Fed., 697 801

U. S. V. Simbahan, 19 Phil., 123 793, 854

U. S. V. Stamatapoulos, 164 Fed., 524 903

U. S. V. Talbanos, 6 Phil., 541, 4 Off. Gaz., 696 517

U. S. V. Tilden, 10 Ben. (U. S. D. C), 547, 28 Fed. Cas., 171... 814

U. S. V. Williams, 2 Fed., 64 130

U. S. V. Wilson, 4 Phil., 317, 323 359

U. S. V. Wong Kim Ark, 169 U. S., 649, 42 L. ed., 890 702

U. S. V. Wright, Fed. Cas. No. 16774 126

U. S. V. Wright, 16 Fed., 112 963

U. S. V. Wright, 229 U. S., 226, 237, 57 L. ed., 1160 313

U. S. L. Ins. Co. V. Vocke (Kielgast), 129 111., 557, 22 N. E.,

467, 6 L. R. A., 65 673

Vanderhoof v. Shell, 42 Or., 578, 72 Pac, 126 921

Van Nostrand v. Board, 59 N. J. Eq-., 19, 44 Atl., 472 697

Verdin v. Robertson, 10 Ct. Sess. Cas. (3rd Ser.), 35 587

Vickers v. R. Co., 71 Fed., 139 907

Village Belle, The, 30 L. T., 232 303

Vroman v. Dewey, 22 Wis., 323 528

Wadsworth v. Adams, 138 U. S. 388, 34 L. ed., 984 233

Wadsworth v. Wadsworth, 81 Cal., 182 ;. 369

Waeber v. Talbot, 167 N. Y., 48, 60 N. E., 288 921

Waite V. Coaracy, 45 Minn., 159, 47 N. W., 537 651

Wales V. Harper (Manitoba), 17 West. L. R 559

Walker v. Fraser, 9 Scotch Sess. Cas. (3rd ser.), 1091, 1092 498

Walther v. Ins. Co., 65 Cal., 417, 4 Pac, 413 673

Ward V, Putnam, 119 Ky., 889, 85 S. W., 179, 7 Ky. L.

Rep., 367 648

Ware v. Allen, 128 U. S., 590, 32 L. ed., 563 1008

Ware v. Wanless, 2 Wyoming, 144 85

Wasey v. Ins. Co., 126 Mich., 119, 85 N. W., 459 673

Washington etc. R. Co. v. Downey, 236 U. S., 190, 59 L. ed.,

533, 35 Sup. Ct., 406 660

Watts V. Public Administrator, 4 Wend., 168 648

Waugh V. Beck, 114 Pa. St., 42, 6 Atl., 923 117

Weaver v. Commonwealth, 29 Pa. St., 445 413

Webb V. Baltimore, 77 Md., 92 242

Weber v. Weber, 153 Wis., 132, 140 N. W., 1052, 45 L. R. A.

(N. S.) , 875 534

Webster v. Cecil, 30 Beavan, 62 580

REFERENCES. xlix

Page.

Webster v. Lowe, 107 Ky., 293, 53 S. W., 1030 715

Weed V. Panama R. Co., 17 N. Y., 362, 72 Am. Dec, 474 607

Weintz v. Hafner, 78 111., 27 887

West V. Camden, 135 U. S., 507, 34 L. ed., 254, 10 Sup. Ct, 383 730

Western Mfg. Co. v. Cotton, 126 Ky., 749, 10 S. W., 758 908

Western Union Telegraph Co. v. Shotter, 71 Ga., 760 588

Wheaton v. Fellows, 23 Wend. (N. Y.), 375 474,475

Wheeler v. Billings, 38 N. Y., 263 955

White V. Converse, 20 Wend. (N. Y.), 266 474

White V. Nicholls, 3 How (U. S.), 266, 11 L. ed., 591 486

White V. White, 75 la., 218, 39 N. W., 277 837

Whittaker v. Howe, 3 Beav., 383 766

Wlghtman v. Wightman, 4 Johns. Ch. (N. Y.), 343 322,534

Wihen v. Law, 3 Starkie, 63 700

Wilbur V. Stoepel, 82 Mich., 344, 46 N. W., 724 730

Wilcox V. State, 94 Tenn., 106, 28 S. W., 312 417

Wilcox V. Tel. Co., 176 N. Y., 115, 68 N. E., 153 907

Wilder v. U. S., 5 Court of Claims, 462 731

Wiley V. Baumgardner, 97 Ind., 66 829

Wilkerson v. Farnham, 82 Mo., 679 955

Wilkinson v. Heavenrich, 58 Mich., 574, 26 N. W., 139 242

Williams' Case, Wharton's State Trials, 652, Scott's Cases on

International Law, 372 706

Williams v. Armour Car Lines, 7 Pen. (Del.), 275, 79 Atl., 919.... 611

Williams v. Benson, 87 Kan., 421, 124 Pac, 531 593

Williams v. Chicago Coal Co., 60 111., 149 805

Williams v. Purdy, 6 Paige Ch. (N. Y.), 166 596

Williams v. Sorrell, 4 Ves. 389 390

Williams v. State, 22 Tex., App., 497, 4 S. W., 64 678

Williams v. State, 43 Tex., 182, 23 Am. Rep., 590 678

Williams v. Wells, 1 Hayw. & H. (D. C), 116, 29 Fed. Cas.,

1417 649

Williams v. Williams, 16 Lea (Tenn.), 164, 172 895

Williamson v. U. S., 207 U. S., 425, 52 L. ed., 278 903

Willard V. Willard, 6 Baxt. (Tenn.), 397, 32 Am. Rep., 529 325

Wills V. Ross, 77 Ind., 1 959

Wimer v. Allbaugh, 78 la., 79, 42 N. W. 587, 16 Am. St.

Rep., 422 595

Winship v. Portland etc. Ass'n., 78 Me., 571, 7 Atl., 706 968

Withers v. Edmonds, 26 Tex. Civ. App., 189, 62 S. W., 795.... 730

Woodburg v. McClurg, 98 Miss., 831, 29 S. W., 514 665

Woodle V. Whitney, 23 Wis., 55, 99 Am. Dec, 102 956

Woodruff V. Wentworth, 133 Mass., 309 730

Woods V. Thornburn, 103 L. T. J., 421 828

Woodson V. Hopkins, 85 Miss., 171, 70 L. R. A., 645 646

Woodward's Appeal, 81 Conn., 152, 70 Atl., 453 756

1 I EXTRATERRITORIAL CASES.

Pasre.

Worcester v. Ocampo, 22 Phil., 86 486

Wright V. Cudahy, 168 111., 86, 48 N. E. Rep., 39 434

Wunsch V. Boldt, 15 S. W. (Tex.), 193 921

Wushishan Case, North China Herald, XXIII, 90 80

Young V. Cook, 144 Mass., 39, 10 N. E., 719 814

Zachary v. Chambers, 1 Or., 321 596

Zych V. American Car etc. Co., 127 Fed., 723 811

II. CONSTITUTION (FEDERAL).

Article I, section 1 656

Article I, section 8 175

Article I, section 4 - 898

Article IV, section 1 473

Article VI 174,659

Amendment IV 359

Amendment XIV, section 1 701. 710

III. LEGISLATION, ETC.

1. Acts of Congress.

1789, September 24, 1 U. S. Stats, at Large, Sess. I, Ch. 20,

p. 73, sec. 30 810, 813

1790, April 30, 1 U. S. Stats, at Large, Sess. II, Ch. 9, p. 114.... 401
1790, July 16, 1 U. S. Stats, at Large, Sess. II, Ch. 28, sec. 1,

p. 130 320, 658

1792, April 14, 1 U. S. Stats, at Large, Ch. 24, sec. 2, p. 255 870

1800, April 4, 2 U. S. Stats, at Large, Ch. 19, p. 19 898

1801, February 27, 2 U. S. Stats, at Large, p. 103, 6th Cong.,
Sess. II, Ch. 15 320,658

1802, May 3, 2 U. S. Stats, at Large, p. 197, 7th Congress, Ch.

53, sec. 7 312

p. 255, 8th Congress, Ch. 14, sec. 3 312

1803, December 19, 2 U. S. Stats, at Large, Ch. 6, p. 248.... 898

1804, March 26, 2 U. S. Stats, at Large, Ch. 38, sec. 7, p. 285.... 658

1825, March 3, 4 U. S. Stats, at Large, Ch. 65, sec. 3, p. 115 658

1834, June 30, 4 U. S. Stats, at Large, p. 732, 23d Cong., Sess.

I, Ch. 161, sec. 20 313

1836, July 1, 5 U. S. Stats, at Large, 61, Ch. 231, sec. 1 759

1841, August 19, 1841, 5 U. S. Stats, at Large, Ch. 9, p. 440 898

1843, March 3, 5 U. S. Stats, at Large, Ch. 82, p. 614 899

1848, August 11, 9 U. S. Stats, at Large, p. 276, c. 150 470

Section 1 „ 10

Section 2 10, 397, 399

REFERENCES. 11

1848 — Continued. Page.

Section 3 10, 107, 319, 870

Section 4 7, 11, 159, 310, 319, 400, 659, 897, 929

Section 5 8, 10, 11

Section 6 9

Sections 7-9 872

Section 11 9

Section 13 10, 871, 927

Section 22 35,36

1853, February 26, Sess. II, 10 U. S. Stats, at Large, Ch. 80,
p. 161 892

1860, June 22, 12 U. S. Stats, at Large, p. 72, 36th Cong., Sess.

I, Ch. 179 292

Section 2 29, 36, 397

Section 3 106, 442, 482, 870

Section 4 310, 319, 321, 369,, 371, 400, 443, 659, 755, 897, 929

Section 21 36

Section 27 873

Section 30 874

Section 31 320

1861, August 5, 12 U. S. Stats, at Large, p. 291, 37th Congress,

1st Sess., Ch. 44 312

1862, July 14, 12 U. S. Stats, at Large, Ch. 164, p. 565, sec. 4.. 314

1864, March 15, 13 U. S. Stats, at Large, 29, Ch. 33 313

1865, March 3, 13 U. S. Stats, at Large, p. 571, 38th Cong.,
Sess. II 320

1866, April 5, 14 U. S. Stats, at Large, Ch. 24, sec. 2, p. 13 661

1866, July 23, 14 U. S. Stats, at Large, p. 213, 39th Congress,

1st Sess., Ch. 215, sec. 3 312

1866, July 28, 14 U. S. Stats at Large, 322, Ch. 296, sec. 11 37

1867, March 2, 14 U. S. Stats, at Large, Ch. 176, p. 517 899

1868, July 27, 15 U. S. Stats, at Large, 223, Ch. 249, sec. 1.... 706, 713

1870, July 1, 16 U. S. Stats, at Large, 183, c. 194 179, 471

1870, December 13, Sess. Ill, Ch. I, 16 U. S. Stats, at Large,

395 883

1872, June 7, 17 U. S. Stats, at Large, Sess. II, Ch. 322, sees.

46, 50 718

1872, June 7, 17 U. S. Stats, at Large, Sess. II, Ch. 322, sec. 58.. 320

1873, March 3, 17 U. S. Stats, at Large, p. 570, 42nd. Cong.,
Sess. II, Ch. 234, sec. 11 320

1876, February 1, 19 U. S. Stats, at Large, 21 179

1877, February 27, 19 U. S. Stats, at Large, 244, Ch. 69 313

1878, June 7, 20 U. S. Stats, at Large, Ch. 160, p. 99 899

1878, June 15, 20 U. S. Stats, at Large, p. 139, 45th Congress,

2nd Sess., Ch. 215, sec. 10 312

1882, May 6, 22 U. S. Stats, at Large, 61, Ch. 126 701

1884, May 17, 23 U. S. Stats, at Large, Sess. I, Ch. 53, sec. 5.... 930

lii I EXTRATERRITORIAL CASES.

Page.

1884, July 4, 23 U. S. Stats, at Large, 94, Ch. 180 313

1887, February 23, 24 U. S. Stats, at Large, Ch. 210.. 349, 521, 523, 903
1887, March 3, Sess. II, 24 U. S. Stats, at Large, Ch. 373,

sec. 1 637

1890, May 2, Sess. I, 26 U. S. Stats, at Large, Ch. 182, sees. 11,

31 - 658

1890, June 13, 26 U. S. Stats, at Large, 154, 51st Cong., Sess. I,

Ch. 423 314

1890, August 8, 26 U. S. Stats, at Large, p. 313, 51st Cong.,
Sess. I, Ch. 728 315

1891, February 28, 26 U. S. Stats, at Large, Sess. II, Ch. 385

p. 797 314

1892, July 12, Sess. I, 27 U. S. Stats, at Large, Ch. 159, sec.

2, p. 116 576

1892, July 20, Sess. I, 27 U. S. Stats, at Large, Ch, 209, sec. 1,

p. 252 890

1892, July 23, 27 U. S. Stats, at Large, Sess. I, Ch. 234 p. 26.... 313

1893, March 3, 27 U. S. Stats, at Large, p. 563, 52nd Congress,

2nd Sess., Ch. 204, sec. 19 312

1894, August 15, 28 U. S. Stats, at Large, Ch. 290, p. 318 313

1896, May 28, Sess. I, 29 U. S. Stats, at Large, 181, Ch. 252,

Section 8 832

Sections 19, 20, p. 184 931

1897, January 30, 29 U. S. Stats, at Large, Sess. II Ch. 109,

p. 506 , 313

1897, March 3, Sess. 11, 29 U. S. Stats, at Large, Ch. 389,

sees. 4, 7 719

1897, June 4, 30 U. S. Stats, at Large, Sess. I, Ch. II, p. 56 930

1898, July 1, (Bankruptcy Act) Sess. II, 30 U. S. Stats, at
Large, Ch. 541, p. 544 897

Section 56 b 900

1898, July 7, 30 U. S. Stats, at Large, Ch. 576, p. 717 125, 187, 661

1899, March 2, 30 U. S. Stats, at Large, 981, 54th Cong., Sess.

II, Ch. 352, sec. 17 314

1899, March 3, 30 U. S. Stats, at Large, p. 1013, Ch. 418 312

1899, March 3, 30 U. S. Stats, at Large, Sess. Ill, Ch. 429,

Title I, section 30 495

Title I, section 41 547, 688

Title I, section 46 199

Title I, section 47 373

Title I, section 52 863

Title I, section 54 125, 688

Title I, section 76 305

Title I, section 102 284

Title I, section 103 284

Title I, section 151 190, 193

REFERENCES. liii

1899 — Continued. P^ige.

Title I, section 152 191, 428

Title I, section 186 415

Title I, section 200 487

Title II, section 7 262

Title II, section 43 394

Title II, section 90 317

Title II, section 261 667

Title II, section 262 667

Title II, sections 271, 272 930

Title II, section 408 930

Title II, section 410 930

Title II, section 461 316

Title II, section 462 316

Title II, sections 462-478 308, 313

Title II, section 472 316, 332

Title II, section 473 316

Title II, section 474 316

Title II, section 478 313, 327

1900, April 30, 31 U. S. Stats, at Large, Ch. 339, sec. 5, p. 141.. 658
1900, June 6, 31 U. S. Stats, at Large, Sess. I, Ch, 786,

Title I, section 6 930

Title I, section 48 691

Title II, section 6 .-. ■. 679

Title II, section 25 222

Title II, section 34 1001

Title II, section 46 638

Title II, section 92 973, 998

Title II, section 97 973

Title II, section 138 627, 936

Title II, section 166 936

Title II, section 242 809

Title II, sections 384, 386 765

Title II, section 463 321

Title II, section 467 370, 692, 917

Title II, section 467, (2) 484

Title II, section 471 499

Title II, section 472 838

Title II, section 472 (4) 547

Title II, section 513 891

Title II, section 644 , 810

Title II, section 703 930, 932

Title II, section 743 866

Title II, section 744 834

Title II, section 763 930

Title II, section 774 670

Title II, section 822 596

liv I EXTRATERRITORIAL CASES.

1900 — Continued. Patre.

Title II, section 823 598

Title II, section 869 698

Title II, sections 941-948 932

Title II, section 1040 669

Title II, section 1044 (5) 742

Title III, sections 21, 31 443

Title III, section 22 753

Title III, section 25 756

Title III, section 26 444

Title III, section 31 444

Title III, section 32 816

Title III, section 33 816

Title III, section 138 648,936,939

Title III section, 143 526

Title III, section 147 936

Title III, section 166 936,939

Title III, section 169 (1) 526

Title III, section 169 (4) 525

Title III, section 228 760

Title III, section 255 842,956

1901, February 2, 31 U. S. Stats, at Large, 758, 56th Cong.,

Sess. II, Ch. 192, sec. 38 314

1901, March 3, 31 U. S. Stats, at Large, Sess. II, Ch. 854

Section 156 933

Section 160 932

Section 176 89a

Section 375 526, 599, 725

Section 380 937

Section 381 846

Section 387 937

Section 393 1002

Section 395 443,753

Sections 435, 444 950

Section 802 679

Section 806 626

Section 815 495

Section 817 487

Section 818 735

Section 826 548

Section 827 688

Section 834 199, 549, 863

Section 836 863

Section 840 _ 391

Section 842 125,620

Section 843 305

Section 865 210, 247, 428

REFERENCES. Iv

1901— Continued. Pae:'.

Section 868 210,247

Section 872 984,988

Section 915 394

Section 958 937

Section 966 370, 371, 484, 547, 692, 838, 917, 918

Section 966 (1) - 924,925,934

Section 975 : 499

Section 1064 566,599

Sections 1108, 1109 892

Section 1119 ■- 742

Section 1160 525

Section 1178 753, 868

Sections 1184, 1185 842

Section 1186 :. 868

Section 1285 321

Sections 1298, 1300 816

Section 1537 638

Section 1571 222

Section 1626 627, 648, 772, 936, 939

Section 1634 936

1901, March 3, 31 U. S. Stats, at Large, Sess. II, Ch. 873, p.

1450 542

1902, Feb. 14, 32 U. S. Stats, at Large, Pt. I, Ch. 18, p. 33 314

1902, June 30, Sess. I, 32 U. S. Stats, at Large, Ch. 1329... 688

Page 535, sec. 827 630

Sec. 842 620

Page 537 937

Page 543 321

Sec. 1058 810

1902, July 1, 32 U. S. Stats, at Large, Sess. I, Ch. 1369, sec. 5.. 359
Section 10 659

1903, Feb. 9, 32 U. S. Stats, at Large, Sess. II, Ch. 529, p.

806 659

1903, March 2, 32 U. S. Stats, at Large, Sess. II, Ch. 978,

pp. 947-952 656

Section 2 499, 546, 662, 663, 664, 925

Section 5 665

Section 13 663

Section 14 663,664

Section 16 663

Section 20 663

Section 23 663

1903, March 3, 32 U. S. Stats, at Large, 57th Cong., Sess. II,

Pt. 1, Ch. 1012—

Section 30 314

Section 34 314

Ivi I EXTRATERRITORIAL CASES.

Page.

1904, Apr. 28, 33 U. S. Stats, at Large, Pt. I, Ch. 1815, sec.

2, p. 565 312

1906, March 19, 34 U. S. Stats, at Large, Pt. I, p. 73, sec. 5... 089
1906, June 29, 34 U. S. Stats, at Large, Sess. I, Pt. I, Ch.

3592, sec. 15 380

1906, June 29, 34 U. S. Stats, at Large, Pt. I, Sess. I, Ch. 3615,

sec. 1 : 559

1906, June 30, 34 U. S. Stats, at Large, Sess. I, Ch. 3934
(Court Act) —

Section 1 121, 309, 318, 401, 406, 442, 507, 616, 668, 875, 929

Section 2 182, 191, 292, 296, 406, 528, 720, 724, 875

Section 4 121, 172, 369, 401, 406, 928, 929

Section 5 172, 182, 186, 341, 668, 813, 899, 918, 929

Section 6 419

Section 9 890,891

1907, Feb. 1, 34 U. S. Stats, at Large, p. 870, 59th Cong.,
Sess. II, Pt. I, Ch. 441 314

1907, Feb. 20, 34 U. S. Stats, at Large, Pt. I, p. 907, 59th

Cong., Sess. II, Ch. 1134, sec. 30 314

1907, March 2, 34 U. S. Stats, at Large, Sess. II, Ch. 2534—

Section 2 709

Section 4 421

1907, March 2, 34 U. S. Stats, at Large, Pt. I, p. 1248, Ch., 2569 312
1909, March 2, 35 U. S. Stats, at Large, Pt. I, Sess. II,

Ch. 235, p. 679 877

1909, March 3, 35 U. S. Stats, at Large, Pt. I, Sess. II, Ch.

250, p. 711 541

1910, Apr. 15, 36 U. S. Stats, at Large, Pt. I, p. 301

Section 28 990

Section 29 991

Section 30 991

Section 58 991

1910, June 25, 36 U. S. Stats, at Large, Pt. I, Sess, II, Ch.

385, p. 785 542

1910, June 25, 36 U. S. Stats, at Large, Sess. II, Ch. 395—

Page 825 262

Page 826 402

1912, Aug. 24, 37 U. S. Stats, at Large, Pt. I, Sess. II, Ch.

387, sec. 3 , 656

1913, March 1, 37 U. S. Stats, at Large, p. 699, 62nd Cong.,

Pt. I, Sess. Ill, Ch. 90 815

1913, March 4, 37 U. S. Stats, at Large, Pt. I, Ch. 150 pp.

997 et seq 313

1914, Jan. 17, 38 U. S. Stats, at Large, Pt. I, Sess. II, Ch. 9,

P- 275 349

REFERENCES. Ivii

Page.

1914, Jan. 17, 38 U. S. Stats, at Large, Pt. II, Sess. II, Ch. 9,

sec. 4, p. 276 403

1915, Feb. 5, 38 U. S. Stats, at Large, Pt. I, Sess. Ill, Ch.

23, sec. 6, p. 806 877

1915, March 4, 38 U. S. Stats, at Large, Pt. I, Sess. Ill,

Ch. 145, pp. 1122, 1123 878

1916, August 29, 39 U. S. Stats, at Large, Sess. I, Ch. 416,

sees. 6, 7, p. 547 657

1920, June 4, 41 U. S. Stats, at Large 884

Federal Judicial Code —

Section 1 720

Section 24 405

Section 41 401

Section 250 , 660

Section 256 405

Section 289 : 721

Section 291 721

Federal Penal Code —

Section 37 792,903

Section 138 413

Sections 148, 149 555

Section 273 155

Section 274 155

Section 275 155, 516, 680

Section 276 790, 916, 960

Section 276 (4) 575

Section 284 415, 519, 786, 960, 963

Section 287 688

Section 316 785,786

Section 332 415,963

Revised Statutes —

Section 31 note 701

Section 363 832

Section 730 401

Section 771 419

Sections 823 et seq 892

Section 858 86,599

Sections 866-8 812

Section 915 86

Section 916 86,472

Section 1014 402

Section 1025 177

Section 1043 177

Section 1044 169, 170, 174, 175, 177

Section 1342 (Articles of War, 114) 816

Section 1709 292,296

Iviii I EXTRATERRITORIAL CASES.

Revised Statutes — Continued. . Page.

Section 1710 292, 296

Section 1711 292, 296

Section 1994 318, 420, 481

Section 1999 181

Section 2037 320

Section 2159 135

Section 2160 135

Section 2161 135

Section 2169 481

Section 4082 320

Section 4083 472

Sections 4083 et seq 170,172,292,294,471

Section 4085 442, 456, 482, 507, 603

Section 4086.. 96, 122, 170, 172, 181, 199, 262, 289, 310, 319, 369, 371
400, 443, 481, 544, 602, 689, 755, 760, 765, 929, 951

Section 4087 177

Section 4091 182, 183, 531

Section 4092 531

Section 4093 531

Sections 4093-4096 720

Section 4097 530

Section 4101 285, 331, 543

Section 4106 172

Section 4107 172

Section 4117 171, 172, 174, 181, 294

Section 4118 171, 172, 181

Section 4119 181

Section 4541 718

Section 4544 718

Section 5391 125,661

Sections 5488-5494 199

Section 5546 542

U. S. Comp. St. (1913) —

Paragraph 1540 472

Paragraphs 7633-7676 471

2. Acts of Parliament.

39 Edw. Ill, 31b 322

9 Hen. VI, 34 322

18 Henry VI, C. 19 289

32 322

7 George II, (Sir John Barnard's Act) 114

80 Geo. II (1757), cap. 24, sec. 1 84

6th & 7th Vict., c. 94 (1843, Foreign Jurisdiction Act) 14

8 & 9 Vict 114

15 & 16 Vict. c. 24, Lord St. Leonard's Act 648

REFERENCES. lix

Page.

24 Vict., c. 10 21

53 & 54 Vict. (1890, Foreign .Jurisdiction Act), Ch. 37 97

1894 (Indian Land Acquisition Act) 70,74

3. British Orders in Council.

1860, August 27, (Ottoman Empire) 24

1865 (China and Japan) —

Article 5 gO

Article 37 372

1878 (China and Japan) —

Article 6 (5) 872

1884, Oct. 17 (Zanzibar), sees. 6-8 67,68

1904 (China and Korea) —

Article 21 g77

Article 23 g76

Article 70 (I, III) ZZ^ZZZZZZ. 351

Article 151 (3) 32

Jf. U. S. Court Regulations for China..

Section 5 973

Section 12 476,927

Section 15 362

Section 21 ggg

Section 37 47g

Section 38 475

Section 41 •. 206

Section 42 349^ 341

Section 43 340^ 342

Section 51 371^ 918

Section 55 ggg

Section 57 288

Section 58 288

Section 81 475

Section 82 : 170^ 175^ 176

Section 83 Igg

Section 87 509

U. S. Circuit (9th) Court of Appeals Rules 5, 30 (1) 868

5. Miscellaneous Codes and Statutes.

California Civil Code, sec. 1276 648

Code of Civ. Proc, sec. 1962 (5, 6) 552

Penal Code, sec. 647 I93

Chinese (Manchu) Code (Staunton's Translation) 710,711

Nationality Act, 1909 '7II

Penal Code, art. 266 354

District of Columbia Comp. Stats. Ch. XVI, sec. 155 457, 478

Ix I EXTRATERRITORIAL CASES.

French Civ. Code — Page.

Article 1108 - 580

Article 1150 741,923

Articles 1782, 1952 606

Article 2262 81

German Civ. Code —

Article 154 580

Article 252 741,923

Article 927 81

Illinois Public Utilities Act 664'

Italian Civ. Code, art. 1104 580

Japanese Civ. Code, art. 416 741,923

Kentucky Statutes (1903) sees. 468, 4288 648

Louisiana Rev. Civil Code, art. 1934 (1) 741,923

Maryland Act of 1777, sec. 12 320

Act of 1793, sec. 14 457,478

Massachusetts Revised Laws, 1902, Part II, Ch. 212, sec. 59 193

Nebraska Rev. Stats. (1913), sees. 1205, 1237, 8451 872

New York Code Civ. Proc, sees. 376, 382 473

Code Crim. Proc, sec. 887, subdiv. 9, added L., 1900, c. 281.. 193

2 Rev. Stats., p. 63, sec. 40 (from Eng.) 648

Oregon, Hill, Ann. Laws, sec. 1958 193

Spanish Civ. Code —

Article 816 526

Articles 1105, 1107 741, 923

Article 1261 580,586

Articles 1601, 1783, 1784 606

Article 1857 212

Article 1875 212

Article 1880 212

Spanish Mortgage Law-
Article 2 '. 212

Article 3 : 212

Article 23 212

Article 27 212

Article 146 212

Article 396 212

Spanish (Philippine) Penal Code, art. 8, (4 [2]) 575

Spanish Penal Code, art. 10 (17, 18) 307

Article 79 517

Article 358 413

Texas Penal Code (White, Annotated), Title XI, Chap. 7,

Art. 413 193

REFERENCES. Ixi

IV. TREATIES AND CONVENTIONS.

Page.

America and Britain, 1870 706

America and China —

1844 1, 35, 318, 397, 471

Article XXI 106, 309, 397, 517, 870

Article XXV 442,482,898

1858, Article XI 2, 309, 397, 874

Article XVII 316, 318, 397

Article XXVII 471, 617

1868, Article V 711

Article VI 711

1880, Article II 521

1903 3

Article XVII 309

America and Japan —

1857, Article IV 51

1858 30

Article VI 28, 52

Article XII 52

1894, Article XVIII 398

America and Turkey —

1830 34

Article III 38

1862, Article 1 36

Britain and China —

1858 353

1876 (Chefoo Convention) 353

1894 (Regarding Burmah), Article II 353

1908 353

1911 353,354

Britain and Zanzibar, 1886, Articles XVI-XX 71, 72

Universal Postal Convention, 1897 (30 U. S- Stats, at Large,

p. 1641), art. 16 348

THE SINO-AMERICAN EXTRATERRITORIAL TREATIES.
[Wang Hiya, July 3, 1844.]^

Article XXI.

"Subjects of China who may be guilty of any criminal
act towards citizens of the United States shall be arrested
and punished by the Chinese authorities according to the
laws of China; and citizens of the United States who may
commit any crime in China shall be subject to be tried and
punished only by the Consul, or other public functionary
of the United States, thereto authorized, according to the
laws of the United States. And in order to the prevention
of all controversy and disaffection, justice shall be equitably
and impartially administered on both sides."

' "June 16, 1844, Tsi Yeng arrived outside Macao and next day
entered the village of Wang Hiya, within the barrier, but outside
the walls of Macao, and with his suite lodged in a temple which
had been prepared for him. On the 18th of June he and his associates
paid a visit of ceremony to the American legation and this visit
was returned next day. On the 21st of June Gushing communicated
to Tsi Yeng a project of a treaty. In communicating it Gushing
stated (1) that the United States desired to treat on the basis of
'cordial friendship and firm peace,' (2) that the United States did
not desire any portion of the territory of Ghina, and (3) that, while
the United States would be happy to treat on the basis of opening
all ports and imposing no export duties, precisely as was done
in the United States, yet in the project submitted the wishes of
China were heeded, and only a free and secure commerce with the
five open ports was requested. By agreement between the Commis-
sioners, Messrs. Webster, Bridgman, and Parker on the one side,
and Messrs. Hwang, Chow, and Pwan on the other, discussed this
project day after day, sometimes at the American legation and some-
times at Wang Hiya, under the supervision of the respective Com-
missioners, till it assumed the form in which it was finally signed
on July 3, 1844." Moore, Int. Law Dig., V, 419.

14008 O. W.

2 I EXTRATERRITORIAL CASES.

Article XXV.

"All questions in regard to rights, whether of property
or person, arising between citizens of the United States in
China, shall be subject to the jurisdiction, and regulated by
the authorities, of their own Government. And all con-
troversies occurring in China between citizens of the United
States and the subjects of any other Government shall be
regulated by the treaties existing between the United States
and such Governments, respectively, without interference
on the part of China." '

[Tientsin, June 18, 1858.]

Article XI.

"All citizens of the United States of America in China,
peaceably attending to their affairs, being placed on a com-
mon footing of amity and good will with the subjects of
China, shall receive and enjoy for themselves and everything
appertaining to them, the protection of the local authorities
of Government, who shall defend them from all insult or
injury of any sort. If their dwellings or property be
threatened or attacked by mobs, incendiaries, or other
violent or lawless persons, the local officers, on requisition
of the Consul, shall immediately despatch a military force
to disperse the rioters, apprehend the guilty individuals,
and punish them with the utmost rigor of the law. Subjects
of China guilty of any criminal act toward citizens of the
United States shall be punished by the Chinese authorities
according to the laws of China ; and citizens of the United
States, either on shore or in any merchant vessel, who may
insult, trouble or wound the persons or injure the property

" "The treaty of Wanghia marks a transition — the end of the pre-
paratory period and the beginning of recognized official relations
between the United States and China." Latourette, Early Relations
between the United States and China, 144.

"Its fulness of details and clear exhibition of the rights conceded
by the Chinese government to foreigners dwelling within its borders,
made it the leading authority in settling disputes among them until
1860." Williams, The Middle Kingdom, II, 567.

SINO-AMERICAN EXTRATERRITORIAL TREATIES. 3

of Chinese, or commit any other improper act in China,
shall be punished only by the Consul or other public func-
tionary thereto authorized, according to the laws of the
United States. Arrests in order to trial may be made by
either the Chinese or the United States authorities."

^ * * sf * * *

Article XXVII.

"All questions in regard to rights, whether of property
or person, arising between citizens of the United States in
China shall be subject to the jurisdiction and regulated by
the authorities of their own Government; and all contro-
versies occurring in China between citizens of the United
States and the subjects of any other Government shall be
regulated by the treaties existing between the United States
and such Governments, respectively, without interference
on the part of China."

[Shanghai, October 8, 1903.]

Article XV.

"The Government of China having expressed a strong
desire to reform its judicial system and to bring it into
accord with that of Western nations, the United States
agrees to give every assistance to such reform and will
also be prepared to relinquish extraterritorial rights when
satisfied that the state of the Chinese laws, the arrange-
ments for their administration, and other considerations

warrant it in so doing."

*******

Article XVII.

"It is agreed between the High Contracting Parties hereto
that all the provisions of the several treaties between the
United States and China which were in force on the first
day of January, A. D. 1900, are continued in full force and
effect except in so far as they are modified by the present
Treaty or other treaties to which the United States is a
party."

4 I EXTRATERRITORIAL CASES.

THE RATIONALE OF EXTRATERRITORIALITY.
[September 29, 1844, MS. State Dept.]

Gushing, Commissioner (To Secretary of State Calhoun) :

I entered China with the formed general conviction that
the United States ought not to concede to any foreign state,
under any circumstances, jurisdiction over the life and lib-
erty of a citizen of the United States, unless that foreign
state be of our own family of nations — in a word, a Chris-
tian state.

The states of Christendom are bound together by treaties
which confer mutual rights and prescribe reciprocal obliga-
tions. They acknowledge the authority of certain maxims
and usages, received among them by common consent, and
called the law of nations; but which, not being fully ac-
knowledged and observed by the Mohammedan or Pagan
states, which occupy the greater part of the globe, is, in
fact, only the international law of Christendom. Above all,
the states of Christendom have a common origin, a common
religion, a common intellectuality ; associated by which com-
mon ties, each permits to the subjects of the other, in time
of peace, ample means of access to its dominions for the
purpose of trade, full right to reside therein, to transmit
letters by its mails, to travel in its interior at pleasure,
using the highways, canals, stagecoaches, steamboats, and
railroads of the country as freely as the native inhabitants.
And they hold a regular and systematic intercourse as gov-
ernments, by means of diplomatic agents of each, residing
in the courts of the others, respectively. All these facts
impart to the states of Christendom many of the qualities
of one confederated republic.

How different is the condition of things out of the limits
of Christendom ! From the greater part of Asia and Africa,
individual Christians are utterly excluded, either by the
sanguinary barbarism of the inhabitants, or by their phren-
zied bigotry, or by the narrow-minded policy of their gov-
ernments. To their courts, the ministers of Christian gov-
ernments have no means of access except by force, and
at the head of fleets and armies. As between them and

RATIONALE OF EXTRATERRITORIALITY. 5

US, there is no community of ideas, no common law of
nations, no interchange of good offices ; and it is only during
the present generation that treaties, most of them imposed
by force of arms or by terror, have begun to bring down
the great Mohammedan and Pagan governments into a
state of inchoate peaceful association with Christendom.

To none of the governments of this character, as it
seemed to me, was it safe to commit the lives and liberties
of citizens of the United States. In our treaties with the
Barbary States, with Turkey, and with Muscat, I had the
precedent of the assertion, on our part, of more or less of
exclusion of the local jurisdiction, in conformity with the
usage, as it is expressed in one of them, observed in regard
to the subjects of other Christian states.

Mr. Urquhart thinks these concessions have not been
wise on the part of the Mohammedan states. It may be so
for them; but it will be time enough for them to obtain
jurisdiction over Christian foreigners when these last can
visit Mecca, Damascus, or Fez, as safely and freely as they
do Rome and Paris, and when submission to the local juris-
diction becomes reciprocal.

Owing to the close association of the nations of Christen-
dom, and the right their people mutually enjoy and exercise
of free entry into each other's country, there is reciprocity
in the recognition of the local jurisdiction. Not so in the
case of the great Moslem or Pagan states of Asia and Africa,
whose subjects do not generally frequent Europe and
America, either for trade, instruction, or friendship.

In China, I found that Great Britain had stipulated for
the absolute exemption of her subjects from the jurisdiction
of the empire ; while the Portuguese attained the same ob-
ject through their own local jurisdiction at Macao. * * *

I deemed it, therefore, my duty, for all the reasons as-
signed, to assert a similar exemption on behalf of citizens
of the United States. This exemption is agreed to in terms
by the letter of the treaty of Wang Hiya. And it was fully
admitted by the Chinese, in the correspondence which oc-
curred contemporaneously with the negotiation of the treaty,
on occasion of the death of Sha Aman. By that treaty,
thus construed, the laws of the Union follow its citizens.

6 I EXTRATERRITORIAL CASES.

and its banner protects them, even within the domain of
the Chinese Empire.

The treaties of the United States with the Barbary
powers, and with Muscat, confer judicial functions on our
consuls in those countries, and the treaty with Turkey
places the same authority in the hands of the minister or
consul, as the substitute for the local jurisdiction, which,
in each case of controversy, would control it if it arose in
Europe or America. These treaties are in this respect ac-
cordant with general usage, and with what I conceive to be
the principles of the law of nations in relation to the non-
Christian powers.

In extending these principles to our intercourse with
China, seeing that I have obtained the concession of ab-
solute and unqualified extraterritoriality, I considered it
well to use in the treaty terms of such generality, in de-
scribing the substitute jurisdiction, as, while they hold un-
impaired the customary or la w-of -nations jurisdiction, do
also leave to Congress full and complete direction to define,
if it please to do so, what officers, with what powers, and
in what form of law, shall be the instruments for the pro-
tection and regulation of the citizens of the United States.

And it only remains, in case the treaty shall be ratified,
to adopt such legislative provisions as the wisdom of the
President and of Congress may desire or approve to give
effect to the concessions which the Chinese government has
made in this matter and which seem to me so important
in principle and so material to the honor and interests of
the United States.

JURISPRUDENCE AND JURISDICTION.

[September 19, 1855, Opinions, Attorneys-General, VII, 503-505,

508-511.]

CUSHING, Attorney-General (To Secretary of State Marcy) :

In thus retaining jurisdiction of our citizens in China,
and providing persons to exercise it, we could not rely upon

JURISPRUDENCE AND JURISDICTION. 7

the law of nations exclusively, nor upon usages, or a cus-
tomary local code applicable to the emergency, such as
exists in the Levant. Accordingly, the statute contains the
following important provisions:

That such jurisdiction in criminal and civil matters shall, in all
cases, be exercised and enforced in conformity with the laws of the
United States, which are hereby, so far as is necessary to execute
said treaty, extended over all citizens of the United States in China,
(and over all others to the extent that the terms of the treaty jus-
tify or require), so far as such laws are suitable to carry said treaty
into effect; but in all cases where such laws are not adapted to the
object, or are deficient in the provisions necessary to furnish suitable
remedies, the common law shall be extended in like manner over such
citizens and others in China : and if defects still remain to be sup-
plied, and neither the common law nor the statutes of the United
States furnish appropriate and suitable remedies, the Commissioner
shall, by decrees and regulations, which shall have the force of law,
supply such defects and deficiencies.''

The system of law is composed, therefore, of —

1. The laws of the United States, comprehending the
Constitution, treaties, acts of Congress, equity and admir-
alty law, and the law of nations, public and private, as
administered by the Supreme Court, and Circuit and Dis-
trict Courts of the United States, and, in certain cases,
regulations of the Executive Departments.

2. "The common law." In this respect, the statute fur-
nishes a code of laws for the great mass of civil or munic-
ipal duties, rights, and relations of men, such as, within
the United States, are of the resort of the courts of the
several States.

Some general code in these respects became necessary,
because the law of the United States — that is, the federal
legislation — does not include these matters, and, of itself,
would be of no avail toward determining any of the ques-
tions of property, succession, the contract, which constitute
the staple matter of ordinary life.

For such of the States as were founded in whole or chief
part by colonists from Great Britain and Ireland, or their
descendants, the law of England, as it existed in each of

*Act of Congress of August 11, 1848, 9 U. S. Stats, at Large,
276, sec. 4.

8 I EXTRATERRITORIAL CASES.

those States at the time of their separation from Great
Britain, with such modifications as that law had undergone
by the operation of colonial adjudication, legislation, or
usage, became the common law of such independent State.

Meantime, in addition to many changes, differing among
themselves, which the common law underwent in each of
the colonies before it became a State, that common law has
been yet more largely changed by the legislation and ju-
dicial construction of each of the States.

Hence, it was not enough to enact that the common law
should intervene to supply, in China, deficiencies in the law
of the United States. For the question would be sure to
arise: What common law? The common law of England
at the time when the British colonies were transmuted
into independent republican States? Or the common law
of Massachusetts? Or that of New York, or Pennsylvania,
or Virginia? For all these are distinct, and in many im-
portant respects diverse, "common law."

To dispose of this difficulty, the statute went one step
further, and enacted, that —

3. "Decrees and regulations" may be made from time to
time by the Commissioner, which shall have the force of law,
and supply any defects or deficiencies in the common law
and £he laws of the United States.

This power of supplementary decree or regulation serves
to provide for many cases of criminality, which neither
federal statutes nor the common law would cover.

In addition to which, it is enacted that the Commissioner,
with advice of the several consuls, shall prescribe the forms
of processes to be issued, the mode of executing the same,
the form of oaths, the costs and fees to be allowed and paid;
and generally to make all such decrees, regulations, and
orders, under the act, as the exigency may demand, which
shall be "binding and obligatory until annulled or modified
by Congress.^ "

In certain respects, therefore, the Commissioner legis-
lates for citizens of the United States in China; it being
required, meanwhile, that such "regulations, orders, and de-

»Id.. Sec. 5.

JURISPRUDENCE AND JURISDICTION. 9

crees, as he may make in the premises, shall be transmitted
to the President, to be laid before Congress for its revi-
sion.^ "

*******

The statute provision as to the trial of civil "cases" is,
that "the consuls aforesaid, and each of them, at the port
for vi^hich he is appointed, shall have jurisdiction as is
herein provided, in all civil cases arising under said treaty,
wherein the damage demanded does not exceed five hundred
dollars," in which cases the consular decision may be final :
"but if in his judgment any case involves legal perplexities,
and assistance will be useful, or if the damage demanded
exceeds five hundred dollars," then he must have assessors,
and his decision is subject, in case of difference of opinion,
to an appeal to the Commissioner.*

Now, there are processes which do not involve any ques-
tion of "damages" whatever, but which are, nevertheless,
of primary importance and utility: such as the writ of
habeas corpus. Other cases of controversy at law exist,
which concern property, but in which no question of mere
damage is involved, unless incidentally, such as many suits
in rem, and many others de re.

There is another class of cases of property, in which no
damages are demanded, but equitable relief only, such as
most matters in chancery.

There is another class of processes, which have for their
object to enforce or to protect rights in cases already sub
judice otherwise; such as writs of mandamus, supersedeas,
and prohibition.

Finally, there is a vast body of justiciable rights, to which
the phrase of "damages demanded" can by no possibility
apply, being questions of personal right, of the domestic
relations, of inheritance, or of testamentary disposition.
This includes cases of copartnership or other joint interest
in real or personal estate, of insolvency, of divorce, of
alimony, of wills, and of intestate successions.

As to the distribution of all these matters between the
Commissioner and the consuls, the statute is absolutely

' Id., Sec. 6. * Id., Sec. 11.

10 I EXTRATERRITORIAL CASES.

silent: and that distribution is to be made by regulation,
in subordination always to other specific rules of law.

Therefore it is, that, in several provisions ^ of the statute,
jurisdiction is conferred in general terms on both the Com-
missioner and the consuls, and that a general power to
issue all needful processes, as well as to make regulation
of all processes, is conferred on the Commissioner." These
general powers, we have seen, are defined and limited as
to certain "civil cases" in other parts of the statute, which
limitation depends on the nature of the case, as indicated
by the question of "damages."

The samp, general powers are also limited more or less
in the sense of locality: for it is enacted that

"The said functionaries [that is, the Commissioner and the consuls,
being '(in) vested with all the judicial authority necessary to execute
the provisions' of the treaty] shall entertain jurisdiction in matters
of contract at the port where, or nearest to which, the contract was
made, or at which, or nearest to which, it was to be executed: and in
all other matters, at the port where, or nearest to which, the cause of
controversy arose, or at the port where, or nearest to which, the
damage complained of was sustained — any such port above named
being always one of the five mentioned in the treaty." '

These conditions of locality are to be applied, so far as
they may be in their nature applicable, to all cases. To
many cases of contract and of damage sustained, the con-
dition of one of the five ports is inapplicable by its very
nature. Thus, it may be the case of a contract made and
to be executed, or of damage sustained, in Europe or in
America, the parties being now in China. And the con-
dition does not apply in terms to anything but matters of
"contract" or "damage sustained." What shall be said, if
it be a question of probate of will, of intestacy, or of divorce ?

Nor does the other form of the condition — "the port
where, or nearest to which, the cause of controversy arose"
— satisfy all the desiderata of the subject. There may be
no "controversy" or "cause of controversy" in the matter,
though it requires judicial determination, as the probate
of a will, which is at once the source and the authentication
of title. And in many matters of "controversy," it may

' Sees. 1-3. • Sees. 5 and 13. ' Sec. 3.

JURISPRUDENCE AND JURISDICTION. ^ H

be difficult, if not impossible, to show where the "cause of
controversy" arose.

But the statute does not undertake or profess to provide
specially for all questions, leaving many to the regulations
of the Commissioner. Where the question of place of judg-
ment is determined by the statute, of course that controls
the Commissioner as well as the consuls. In all other cases,
the rules and analogies of law on the subject of jurisdiction,
having reference to the situs of the thing, or the residence
or commorancy of parties, afford a sufficient guide to the
regulative discretion of the Commissioner. Whatever is
determined as to the person, who shall exercise jurisdiction,
must of course be conciliated with what shall be determined
as to the place of jurisdiction.

Independently of this, it seems to me that the Commis-
sioner and the consuls should make provision, in the manner
indicated by the statute," that is, by separate or by joint
regulations, concerning all those things, the jurisdiction of
which it leaves indeterminate, and, therefore, subject to
regulation.

Matters of insolvency, intestacy, probate of will, divorce,
division or regulation of copartnership or other common
interests, habeas corpus, specific performance, trust, dis-
covery, seamen's wages, charter-party, bottomry, and other
matters of equity, admiralty, or ecclesiastical law, are, for
the most part, of local nature, and requiring prompt inter-
locutory action of judicial authority; and, therefore, seem
to be fit subjects for the original jurisdiction of the consuls,
with proper regulations for appeal to the Commissioner.

On the other hand, some processes, like mandamus, pro-
hibition, supersedeas, are of so high a nature, that, like
review, they seem appropriate to the jurisdiction of the Com-
missioner. The same observation may, perhaps, apply to
some processes in equity. Even as to all these matters,
which the statute leaves undetermined, the safer course
appears to me to be to adhere, so far as may be, to the spirit
of the law, which makes the Commissioner the appellate
supervisor of the judicial acts of the consuls.

' Sees. 4 and 5.

12 I EXTRATERRITORIAL CASES.

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, 1863.
[Reported, 2 Moore, Privy Council Cases, N. S., 161.]

George M. Papayanni et al., Appellants, v. The Russian
Steam Navigation and Trading Co., Respondents.

SYLLABUS.
(By the Editor.)

1. EXTRATERRITORIALITY. A wide difference exists between the

relations of a Christian with an Oriental state and those with
another Christian state.

2. Id. The Oriental state has no ground for objecting to the exer-

cise within its territory of jurisdiction by one Christian power
over the subjects of another.

3. Id.: British Regulations for such exercise in Turkey recited.

4. Id.: British Consular Courts in Turkey have jurisdiction over

proceedings in rem.

5. Id. Neither party having proved its claim, the action of each was

dismissed without an award of costs.

This was an appeal from two judgments in an action and cross-
action, being a claim and counter-claim, respecting damage by col-
lision off the Island of Marmora, whereby the steamer Colchide was
lost, pronounced by the Judge of the Supreme Consular Court at
Constantinople, who held both parties equally to blame, and decreed
both parties to bear a moiety of the damages occasioned by the loss.

The appellants were British subjects domiciled in England and
owners of the Laconia. The respondents were Russian subjects,
"The Russian Steam Navigation and Trading Company," a public
Company, incorporated by an imperial ukase of His Majesty the
Emperor of Russia, and were the owners of the steam ship Colchide.
As the principal question in the appeal tui'ned upon the jurisdiction
of Her Majesty's Supreme Consular Court at Constantinople, it is
necessary to state briefly the history of the British Consular juris-
diction in the Levant.

In the year 1606, by Letters Patent of James I, the corporation
called "The Governor and Compa^iy of Merchants of England trading
to the Levant Seas," was constituted and endowed with certain rights
and privileges. These were confirmed by Letters Patent of Charles
II, in 1662, whereby fui'ther rights and privileges were granted to
the Company, including a power to appoint Consuls and Vice-
Consuls in all the places in the dominions of the Grand Seignior,
and other places in the Levant Seas; such Consuls and Vice-Consuls
to have authority to govern all Merchants being subjects of His
Majesty, and to administer to them full, speedy, and upright justice,
in all their plaints, causes, and contentions, among them, begun and
to begin in the said dominions, and to pacify all manner of discords

PAPAYANNI V. RUSSIAN ETC. CO., 1863. 13

among them, for the better government of the Merchants. The By-
Laws of the Company, revised, from time to time, and apparently
for the last time in the year 1821, directed the Consuls and Vice-
Consuls to exercise these powers.

The rights of the Company and the trade to the Levant were
further regulated, from time to time, by various statutes passed in
the reigns of George II and George III, which were recited and
repealed by the 6th Geo. IV, c. 33, by which the Company in
effect was dissolved, and their property transferred to the Crown,
and their jurisdiction over His Majesty's subjects resorting to the
ports of the Levant vested in Consular officers, appointed by His
Majesty.

The capitulations and articles for peace between Great Britain
and the Ottoman Empire, as agreed upon, augmented and altered
at different periods, were finally confirmed by the Treaty of Peace
concluded at the Dardanelles in 1809 in which the Sultan agreed
as follows:

Art. 16. That if there happen any suit or other difference, or
dispute, among the English themselves, the decision thereof shall
be left to their ovni Ambassador, or Consul, according to their
custom, without the Judge, or other Governors our slaves, inter-
meddling with them.

Art. 24. That if any Englishman, or other subject of that nation,
shall be involved in any law-suit, or other affair connected with
law, the Judge shall not hear nor decide thereon until the Ambas-
sador, Consul, or interpreter shall be present; and all suits exceed-
ing the value of 4,000 aspers shall be heard at the Sublime Porte,
and nowhere else." ^

The Statute, 6th & 7th Will. IV, c. 78, was passed in 1836, in
consequence of the recommendation of a Parliamentary Commission ^
of the preceding year. The first section recited that by treaties
and capitulations subsisting between His Majesty and the Sublime
Ottoman Porte, full jurisdiction and control over British subjects
within the Ottoman dominions, in matters in which such British
subjects were exclusively concerned, had been conferred upon the
British Ambassadors and Consuls appointed to reside within the
said dominions; and enacted, that His Majesty might, by Order
in Council, make regulations concerning the jurisdiction, civil as
well as criminal, over His Majesty's subjects resorting to the ports
within the Ottoman dominions, to be exercised by His Majesty's
Ambassador, or Consular Officer, and might establish forms of pro-
ceedings. The 2nd section recited that cases occasionally arose
within the dominions of the Ottoman Porte, wherein the interpo-
sition of His Majesty's Ambassador or Consular Officer was required
by the subjects of other Christian powers in the determination of

* The text of the entire treaty is printed in Hertslet's Treaties,
&c., II, 346.

^ See Report of Sel. Com. on Consular Establishments, 22nd August,
1835, pp. 175, 183-5.

14 I EXTRATERRITORIAL CASES.

differences or disputes between such persons and British subjects;
and enacted, that His Majesty might, by Order in Council, make
Regulations for the guidance of His Ambassadors, or Consular
Officers, in such cases, such Order not to be binding until six months
after it should have been laid before both Houses of Parliament.
This Act was subsequently repealed by statute," the first section of
which recites that by treaty, capitulation, grant, usage, sufferance,
and other lawful means, Her Majesty hath power and jurisdiction
within divers countries and places out of Her Majesty's dominions,
and that doubts have arisen how far the exercise of such power and
jurisdiction is controlled by, and dependent on, the laws and customs
of this realm; and enacts, that Her Majesty may exercise any power
or jurisdiction which Her Majesty now hath, or may at any time
hereafter have, within any country or place out of Her Majesty's
dominions, in the same and as ample a manner as if Her Majesty
had acquired such power or jurisdiction by the cession, or conquest,
of territory. The second section enacts that every act which may
at any time be done in pursuance of any such power or jurisdiction
of Her Majesty shall, in all courts, ecclesiastical and temporal, and
elsewhere within Her Majesty's dominions, be in all cases, and to
all intents and purposes whatsoever, as valid and effectual as though
the same had been done according to the local law then in force
within such country or place. The third section authorizes any
court, ecclesiastical or temporal, in Her Majesty's dominions, to
procure, where necessary, evidence of any such power or jurisdiction,
by application to one of Her Majesty's principal Secretaries of State.
In pursuance of this Statute various Orders in Council were issued
by Her Majesty. By that of October 2, 1843, reciting that a customary
jurisdiction, criminal as well as civil, had been exercised on behalf
cf Her Majesty by Her Majesty's Ambassadors and other Con-
sular Officers in the Ottoman dominions, it was provided that such
Officers should, until further order, continue to exercise the same,
and should observe the customary forms of procedure. In transmit-
ting the above to Her Majesty's Consuls in the Levant, Her Ma-
jesty's Minister for Foreign Affairs sent a circular, dated October
6, 1843, whereof the following was an extract:

"The effect of this Order is to relieve you from the serious respon-
sibility under which you have hitherto acted, with regard to matters
of jurisdiction, by giving to your proceedings in such matters, the
sanction and authority of law, which in many instances have here-
tofore been wanting to them. But you will clearly understand that
this Order goes no further. You must not exceed the limits, which
prudence, or convenience, have hitherto prescribed to you. un i; such
time as Her Majesty shall be pleased, by a further Order, to give
you the additional authority, which circumstances may appear to
require to be vested in you. The present measure is designed solely
for your protection against the consequences of acting without lawful

'The Foreign Jurisdiction Act, 6th & 7th Vict., c. 94 (1843).

PAPAYANNI V. RUSSIAN ETC. CO., 1863. 15

authority; the subsequent measures will require to be seriously con-
sidered before they are promulgated, but they will in due time be
communicated to you." ■*

By an Order in Council of June 19, 1864, which revoked the
criminal jurisdiction given by the Order ^ of the 2nd of October,
1843, provision was made for the exercise of criminal jurisdiction
3ver British subjects in respect of crimes committed within the
Ottoman dominions. This, however, was revoked by a subsequent
Order in Council of August 27, ISGO. In transmitting the Order of
June 19, 1844, to Her Majesty's Consular servants in the Ottoman
dominions, the Earl of Aberdeen, Her Majesty's Minister for Foreign
affairs, sent therewith a Circular, dated the 2nd of July, 1844, whereof
the following was an extract:

"The right of British Consular officers to exercise any jurisdiction
in Turkey in matters which, in other countries come exclusively under
the control of the local magistracy, depends originally on the extent
to which that right has been conceded by the Sultans of Turkey to
the British Crown, and, therefore, the right is strictly limited to
the terms in which the concession is made.

The -right depends, in the next place, on the extent to which the
Queen, in exercise of the powers vested in Her Majesty by Act of
Parliament, may be pleased to grant to any of Her Consular servants
authority to exercise jurisdiction over British subjects, and, therefore,
the Orders in Council which may, from time to time, be issued, are
the only warrants for the proceedings of the Consuls, and exhibit
the rules to which they must scrupulously adhere.

This state of things in Turkey is an exception to the system univer-
sally employed among Christian nations. But the Ottoman Emperors
having waived, in favour of Christian powers, rights inherent in
territorial sovereignty, such Christian powers, in taking advantage
of this concession, are bound to provide as far as possible against
any injurious effects resulting from it to the territorial Sovereign;
and as the maintenance of order, and the repression and punish-
ment of crime, are objects of the greatest importance in every
civilized community, it is obligatory upon the Christian powers, stand-
ing as they do in Turkey, in so far as their own subjects are con-
cerned, in the place of the territorial Sovereign, to provide as far
as possible for these great ends.

The present Order in Council has been issued for this purpose.
But it is essential that Her Majesty's Consular Officers in Turkey
should bear in mind that, in conferring upon theai powers of juris-
diction of such a comprehensive and unusual character. Her Majesty's
Government do not desire that those powers should be needlessly
or lightly employed; and that, on the contrary, whenever differences
can be adjusted in a conciliatory manner, such a termination should
be promoted and recommended; and that whenever crimes are to
be punished, -certain and speedy, rather than severe, punishment is
to be preferred."

By an Order in Council of the 27th of August, 1857, reciting
that it was expedient still further to provide for the more efficient
exercise of the power and jurisdiction customarily and as of right
exercised on behalf of Her Majesty, by Her Majesty's Ambassadors

* This circular is to be found in State Papers, XXXVI, 853.
' Printed in Hertslet's Treaties, VI, 843.

16 I EXTRATERRITORIAL CASES.

and other officers within the Ottoman dominions, provision was made
in the 1st article for the appointment of an Officer who, in judicial
matters, should represent the Consul-General at Constantinople, and
be called the "Judge of the Supreme Consular Court of Constanti-
nople," and the same jurisdiction was vested in him which the Con-
sul-General had previously exercised. The 10th article authorized
the Judge to establish rules of practice, such rules to be, as far as
possible, in conformity with those established in the County Courts
of England, regard being had to the difference of local circum^stances
and long-established custom. The 16th article gave an appeal from
the decision of any Consul in a suit of civil nature to the Judge.
The 21st article gave an appeal from the decision of the Judge
in any civil suit to the Judicial Committee of Her Majesty's Privy
Council. The 23rd article authoi'ized the Judge, or the Consul
of the district, to hear civil suits in which British subjects were
plaintiffs and the defendants were Ottoman subjects or the subjects of
other powers in amity with Her Majesty.

The whole of this Order, and the other Orders hereinbefore
mentioned, were revoked by an Order in Council of the 27th
of August, 1860, which Order was the one in operation at the time
when the judgments appealed from in this case were pronounced.
This Order recited, among other matters, that Her Majesty has had,
and now has, power and jurisdiction in the Ottoman dominions, and
that it is expedient to revise and consolidate the provisions of the
former Orders, and to make further provision for the due exercise of
Her Majesty's power and jurisdiction aforesaid, and for the more reg-
ular and efficient administration of justice, and the better maintenance
of order among all classes of Her Majesty's subjects and of persons
enjoying Her Majesty's protection resident in or resorting to the
dominions of the Sublime Ottoman Porte. The 4th article directs
that Her Majesty's jurisdiction, exercisable in the dominions of the
Sublime Ottoman Porte, shall be exercised according to the provisions
of the Order, and not otherwise. The 5th article orders that, subject
to the other provisions of the present Order, the civil and criminal
jurisdiction shall, as far as circumstances admit, be exercised upon
the principles of the common law, the rules of equity, the statute
law, and other law for the time being in force in England, and with
all the powers vested in and pursuant to the course of procedure
and practice observed by and before Courts of Justice, and Justices
of the Peace in England, according to their respective jurisdictions
and authorities. The 13th article orders that Her Majesty's juris-
diction, civil and criminal, exercisable in the dominions of the Sublime
Ottoman Porte, shall, for and within the district of the Consulate
General of Constantinople, be vested exclusively in the Supreme Con-
sular Court as its ordinary original jurisdiction. The 26th article
orders that the Supreme and every other Consular Court shall be
a Court of law and equity, and (subject to the other provisions
of the Order) shall have, and may exercise, all jurisdiction, power

PAPAYANNI V. RUSSIAN ETC. CO., 18 63. 17

and authority, legal, equitable or other, which any Consul of Her
Majesty by custom has or may exercise in the dominions of the
Sublime Ottoman Porte. By articles 27 to 30, special jurisdiction i^
given to the Court in bankruptcy, matrimonial causes, and probate.
The 64th article orders that the Supreme and other Consular Courts,
according to their respective jurisdiction, and in conformity with the
rules relating to suits between British subjects, may determine any
suit of a civil nature, instituted by a subject of any state in amity with
Her Majesty against a British subject, provided the plaintiflf comply
with certain conditions. The 66th article orders that the Judge of
the Supreme Consular Court may frame rules to regulate procedure
and practice, such rules to be approved by one of Her Majesty's
principal Secretaries of State. The 69th article makes provision for
appeals from the Supreme Consular Court to Her Majesty in Council.

In pursuance of this Order, certain Rules, dated November 30,
1860, were framed by the then Judge of Her Majesty's Supreme Con-
sular Court. No provision whatever was made in these rules, or in
the forms or tables of fees annexed to them, for exercising admiralty
jurisdiction, nor for proceedings in rem, although the date of these
rules is subsequent to the rules of the High Court of Admiralty of
the 29th November, 1859, and now in force in that Court.

Since the judgments appealed from were pronounced, the Order
in Council of the 27th of August, 1860, had been repealed and new
regulations established by an Order in Council of the 9th of January,
1863, by the 36th article of which the Supreme Consular Court of
Constantinople is, in express terms, constituted a Vice-Admiralty
Court, with Vice-Admiralty jurisdiction.

On the 19th of April, 1862, proceedings were commenced by the
respondents, who filed in Her Majesty's Supreme Consular Court at
Constantinople, a decree of the Russian Chancellerie authorizing them
to submit to the jurisdiction of Her Majesty's Consular Court, against
the steamship Laconia, the property of the appellants, praying that
the Court would pronounce against that ship for £43,000, the damage
sued for in the cause, by reason of the collision which took place
off the Island of Marmora, and for the costs of the suit to be paid
to the owners of the steamer Colchide; and for further relief. The
appellants entered a protest against the jurisdiction of the Supreme
Consular Court to entertain the cause of collision, it being a proceed-
ing in rem. After hearing Counsel on the protest, the learned Judge,
Sir Edward Hornby, on the 22nd of May, 1862, gave judgment as
follows :

"The Court affirms its jurisdiction, not on the ground that it is
a Court of Admiralty, or that it has jurisdiction in all cases taken
cognizance of by Courts of Admiralty, but simply on the ground
that it has jurisdiction in cases of collision within Turkish waters,
and that it can exercise that jurisdiction in rem as well as in personam.
The Court further observes, that although it is true no mention of a
jurisdiction in actions in rem is specially made in the Order of Council

14008 O. W. 2

18 I EXTRATERRITORIAL CASES.

of the 27th Aug-ust, 1860, yet, under the 26th section of that Order,
»'all jurisdiction, power and authority, legal, equitable, or other,
which any Consul of Her Majesty, by custom, has or may exercise
in the dominions of the Sublime Ottoman Porte,' is specially re-
served to Consular Courts, and there is no doubt that Consuls in
the Levant have customarily exercised, and still continue to exercise,
jurisdiction over ships in the sense of ordering their detention and
sale. In actions on bottomry bonds, vessels are constantly stopped,
sequestered, and sold. Claims are marshalled and satisfied by sale
of the res and indeed the rules of the Maritime law in the ap-
portionment of damages, in cases of collision, have been followed.
The Court calls also attention to the 4th, 5th, and 13th sections
of the Order in Council. It is not to be doubted but that Her
Majesty has in the Levant jurisdiction in rem as well as in personam,
in other words, that she has a jurisdiction in Admiralty in the same
way as she Vias a Common Law and Equity jurisdiction, for such
jurisdiction would naturally follow any cession, or conquest, of terri-
tory.

By the 4th section, all the jurisdiction, whatever it may be, is to
be exercised under, and according to the provisions of, the Order in
Council. By the oth section, 'such jurisdiction is to be exercised, so
far as circumstances will admit, in conformity with the Common law,
the rules of Equity, the Statute law, and other law for the time being
enfoi ced in En^J:land.' This section, therefore, contemplated the exer-
cise of jurisdiction in conformity with some other law than the Common
or Statute law and it is fair to presume that by this term, 'other law,'
was meant, if occasion should arise for its application, the Maritime
law, and when reference is made to the reservation contained in the
26th clause, it is clear that Her Majesty intended to delegate to Con-
sular Courts, established under the Order in question, the power to
exercise all her jurisdiction in the Levant, other than the Common law,
rules of Equity, and Statute law which the Consuls had, by custom,
exercised in the dominions of the Sublime Ottoman Porte.

The Court also draws attention to the fact that practically, as
between the different foreign Consular Courts in the Levant, much
proceeds from and depends on a principle of reciprocity. To a great
extent custom has created a certain uniformity and consensus of action
with reference to the exercise of different jurisdictions possessed by
the different Consulates and for the Supreme Court to declare now,
that it will no longer recognize a custom so long observed, generally
known and acted on, of stopping ships, to answer claims upon them,
would be productive not only of great inconvenience but of great
injustice as in a great many cases individuals who had suffered
grievous wrong and injury would be practically without remedy. To
take the present case as an instance, the result of leaving the remedy
which the plaintiffs in this action claim to have for the undoubted
loss they have sustained, to be enforced against the Captain of the
Laconia, would be practically, in all probability, to deprive them alto-
gether of the compensation to which, if they are justified in the claim
they make, they would be entitled, because it is absurd to suppose that
the Captain is worth £40,000. The owners are not within the jurisdic-
tion of this Court and, in all probability, it would be impossible to
carry on this action with any chance of success in England, in con-
sequence of the difficulties attending the utter absence of jurisdiction
over witnesses in this country, from the variety of independent nation-
alities and, so far as the ship itself is concerned, she might be sold
here, or otherwise disposed of, and never be placed within the jurisdic-
tion of the English Court of Admiraltv."

PAPAYANNI V. RUSSIAN ETC. CO., 1863. 19

The learned Judge gave special leave to appeal to the Queen in
Council from this judgment but refused to stay the proceedings
pending the appeal. The owners of the Laconia thereupon put in
their answer imputing the whole blame of the collision to the Captain
and crew of the Colchide and they afterwards commenced a cross-
action against the Colchide. [Here follows a review of the evidence.]

On November 5, 1862, the same learned Judge delivered judgment
on the merits in both actions pronouncing that both parties were in
fault, that the damage done in each ship should be added together,
that each party should bear a moiety of the total amount, and that
neither party should pay or receive costs. From this decision, and
from the judgment affirming the jurisdiction of the Consular Court,
the present appeals were brought.

Mr. Brett, Q. C, and Mr. V. Lushington, for the Appellants:

At the time of the institution of these actions, Her Majesty's Su-
preme Consular Court at Constantinople had no jurisdiction to enter-
tain the suits, as the cause of action arose between Russian and British
subjects beyond the local limits of the authority of the British Consul.
The jurisdiction claimed was founded on that formerly possessed
by the Consuls in the Levant and cannot be extended beyond the
jurisdiction conceded by treaty. Now the treaties between Turkey
and Great Britain, and certainly the treaty of the Dardanelles of
1809, fall far short of conceding such a right as that of deciding
between two foreign parties. It may be true, that if any statute
had gone the length of enjoining the Consul to entertain such a
suit as this, he was bound to hear it, but we submit that no statute,
or Order in Council, could enlarge the jurisdiction, which is simply
that which the Sultan has ceded by treaty to Her Majesty. Again,
assuming that both the Turkish and British Governments had con-
ceded the jurisdiction in question, it could not be enforced against
a Russian subject. The authority in this case of the Russian
Chancellerie could not have had effect, for consent to a subject to
sue does not give jurisdiction. It must be conceded that a Russian
at Constantinople could not be forced into the Consular Court.
Neither has the Consul means of enforcing a judgment pronounced
against a Russian subject; that being so, the rule of reciprocity
applies, for if an English subject cannot enforce a judgment against
a Russian subject, neither can a Russian subject enforce a judg-
ment against an English subject. The Turkish Government has
never by treaty, or custom, assented to such a jurisdiction being
exercised. The Treaty of the Dardanelles expressly mentions
"Englishmen, or other subjects of Great Britain," and gives no
jurisdiction to the Consul between English subjects and the subjects
of other Foreign powers. Neither has the British Government
assented to such a jurisdiction, for it can have no power to impose
a jurisdiction upon Russian subjects, or to legislate by Order in
Council, so as to regulate in Constantinople disputes where foreigners

20 I EXTRATERRITORIAL CASES.

not owing Her Majesty allegiance are concerned. The Statute, 6th
& 7th Will. IV., c. 78, was desired, as the preamble shows, to
protect Consuls in the exercise of their powers against action on
account of their decisions. It is true the 2nd section speaks of a
jurisdiction occasionally exercised between British subjects and sub-
jects of other Powers but the jurisdiction it speaks of is only per-
missive and that statute does not, and cannot give a jurisdiction,
which would include power to compel obedience to the Orders of the
Consular Court. No statute could give such a jurisdiction as would
justify Consular Courts giving judgment by default. The statute,
6th & 7th Vict., c. 94, only gave Her Majesty power to establish a
jurisdiction over British subjects. The Orders in Council made
pursuant to this latter statute must be confined within those limits.
If they go beyond, they are ultra vires, and void.

(2) This was not a proceeding in rem, as the Consular Court
had no Admiralty, or Vice-Admiralty jurisdiction ' and no authority
to proceed i« rem. The rules made by the Consular Court pursuant
to the Order in Council of the 27th of August, 1860, do not provide
for regular proceedings in rem, which, are proceedings for en-
forcing a maritime lien against the offending res,^ and not to be
considered as a mere process of seizing a defendant's property by
way of security to answer judgment; as seen by rules 110 and 111.
As to the customary jurisdiction in rem in cases of bottomry stated
in the judgment* to have been exercised in the Levant by the
Consuls of Her Majesty and the Consuls of other European Sover-
eigns or Powers, we submit, that such jurisdiction, if any ever
was in fact exercised by the Consular officer of Her Majesty, or of
any other European Sovereign, was arbitrary, and merely occasional,
and, was not, in any legal sense of the term, a jurisdiction, so as
to bind the parties unless submitting thereto.' It is true that by
the 36th article of Order in Council of the 9th January, 1863, the
Supreme Consular Court is in express terms constituted a Vice-Ad-
miralty Court with Vice-Admiralty jurisdiction; but this Order in
Council was not in force at the time the judgment appealed from
was given and affords an indirect proof that at that period no such
Vice-Admiralty jurisdiction was recognized.

(3) Assuming that the Consular Court had jurisdiction to enter-
tain and proceed with the suits, the Court had no power to proceed
to administer the law of the English Court of Admiralty but was
limited and confined to the municipal law of Great Britain applicable
to such a case. The collision took place off the island of Marmora,

'4th Coke's Inst., tit. "The Court of Admiralty," p. 134; Bacon's
Abr., tit. "Court of Admiralty, B.;" Story's Comm. on the Conflict of
Laws, sec. 592; De Lovio v. Boit, 2 Gallison (U. S.), 398.

' "The Bold Buccleugh" 7 Moore's P. C. Cases, 267.

' Ante, p. 18.

'"The Griefsward," Swab. Adm. Rep., 430.

PAPAYANNI V. RUSSIAN ETC. CO., 1868. 21

and not on the high seas, which alone gives a Court of Admiralty
jurisdiction." Therefore, the finding of the Court upon the facts
that the plaintiff had been guilty of negligence contributing to the
accident, entitled the defendant to judgment in acordance with the
municipal law of England, and with the law applied in all European
Courts of Admiralty, the British Courts of Admiralty alone excepted."
Mr. C. P. Butt and Mr. Pritchard for respondents.

Jurisdiction was established by the mutual consent of the Govern-
ments of Great Britain and the Ottoman Porte. In all the treaties
made between Turkey and Great Britain, the Consular jurisdiction
is conceded. It is true, that the Sultan has not by treaty given
any right to British Consuls over foreign subjects; but where he
has permitted such right occasionally to be exercised in his terri-
tories, he has by custom so far parted with his own Sovereign right
as to permit the exercise of such a jurisdiction. In a similar manner
the Czar, tho not by treaty, has conceded a jurisdiction to British
authorities and, by acquiescence and custom, his subjects are author-
ized to resort to the jurisdiction of the Consular Court at Constan-
tinople. Here the Russian Chancellerie expressly sanctioned the
submission to the jurisdiction of the British Consular Court.

(2) The judgment of the Court below shows that there is an
undoubted remedy in rem in cases of bottomry bonds given by the
Consular Court; and if so, surely it is competent to proceed in rem
in cases of collision. The Order in Council of the 27th of August,
1860, art. 26, gives to the Consul full jurisdiction.

(3) The judgment of the Court directing a division of the damages
was proper. It had no power to adopt the principles of the Common
Law."

Their Lordships' judgment was pronounced by Dr.
LUSHINGTON :

In considering what power and what jurisdiction was
conceded to Great Britain within certain portions of the
Turkish dominions, it must always be borne in mind that
in almost all transactions, whether political or mercantile,
a wide difference subsists in the dealings between an
Oriental and a Christian State and the intercourse between
two Christian nations. This is an undoubted fact. Many
of the reasons are obvious but this is not the occasion for
discussing them. It is sufficient for us to know and ac-
knowledge that such is the fact,

"Statute, 24th Vict, c. 10.

"Hay V. Le Neve, 2 Shaw's Sco. H. L. App., 395; De Vaux v. Sal-
vador, 4 Ad. & Ell., 420.

•^ Cases cited in note 11 and The Seringapatam, 3 W. Rob. 38;
Kent's Comm. III., 29.

22 I EXTRATERRITORIAL CASES.

It is true beyond all doubt that, as a matter of right, no
State can claim jurisdiction of any kind within the ter-
ritorial limits of another independent State. It is also true
that between two Christian States all claims for jurisdic-
tion of any kind, or exemption from jurisdiction, must be
founded on treaty, or engagements of similar validity. Such,
indeed, were factory establishments for the benefit of trade.

But though, according to the laws and usages of European
nations, a cession of jurisdiction to the subjects of one
State within the the territory of another, would require, gen-
erally at least, the sanction of a treaty, it may by no means
follow that the same strict forms, the same precision of
treaty obligation, would be required or found in inter-
course with the Ottoman Porte.

It is true, as we have said, that if you inquire as to the
existence of any particular privileges conceded to one State
in the dominions of another, you would, amongst European
nations, look to the subsisting treaties; but this mode of
incurring obligations, or of investigating what has been
conceded, is matter of custom and not of natural justice.
Any mode of proof by which it is shown that a privilege
is conceded is, according to the principles of natural justice,
sufficient for the purpose. The formality of a treaty is the
best proof of the consent and acquiescence of parties, but
it is not the only proof, nor does it exclude other proof;
and more especially in transactions with Oriental States.
Consent may be expressed in various ways; by constant
usage permitted and acquiesced in by the authorities of the
State, active assent, or silent acquiescence, where there must
be full knowledge.

We, having considered the materials before us, entertain
no doubt that, so far as relates to the Ottoman Government,
no objection is tenable against the exercise of jurisdiction
between British and Russian subjects. Indeed, the objec-
tion, if any such could properly be urged, should come from
the Ottoman Government rather than a British suitor, who,
in this case, is bound by the law established by his own
country. The case may, in some degree, be assimilated to
the violation of neutral territory by a belligerent; the neu-
tral State alone can complain.

PAPAYANNI V. RUSSIAN ETC. CO., 1863. 23

We think, looking at the whole of this case, that so far
as the Ottoman Government is concerned, it is sufficiently
shown that they have acquiesced in allowing to the British
Government a jurisdiction, whatsoever be its peculiar kind,
between British subjects and the subjects of other Chris-
tian States. It appears to us that the course was this : that
at first, from the total difference of religious habits and
feelings, it was necessary to withdraw as far as practicable
British subjects from the native courts; then, in the prog-
ress of time, commerce increasing, and various nations
having the same interest in abstaining from resort to the
tribunals of Mussulmans, &c., recourse was had to Consular
Courts, and by degrees the system became general. Of all
this the Government of the Ottoman Porte must have been
cognizant, and their long acquiescence proves consent.

The principles are fully explained in the celebrated judg-
ment of Lord Stowell ^^ to which we have very recently
referred.^*

Though the Ottoman Porte could give and has given to
the Christian Powers of Europe authority to administer
justice to their own subjects according to their own laws, it
neither has professed to give nor could give to one such
power any jurisdiction over the subjects of another power.
But it has left those powers at liberty to deal with each
other as they may think fit, and if the subjects of one coun-
try desire to resort to the tribunals of another, there can be
no objection to their doing so with the consent of their own
Sovereign and that of the Sovereign to whose tribunals they
resort. There is no compulsory power in an English Court
in Turkey over any but English subjects; but a Russian
or any other foreigner may, if he pleases, voluntarily resort
to it with the consent of his Sovereign and thereby submit
himself to its jurisdiction.

This case is provided for by the Statute, 6th & 7th Vict.,
c. 94. The 1st section of that Act recites that,

" "The Indian Chief," 3 Rob. Adm. Rep., 29.

" See The Advocate-General of Bengal v. Ranee Surnomoye Dossee,
2 Moore, P. C. Cas. N. S., 60.

24 I EXTRATERRITORIAL CASES.

"By treaty, capitulation, grant, usage, sufferance, and other lawful
means, Her Majesty hath power and jurisdiction within divers countries
and places out of Her Majesty's dominions; and that doubts have
arisen how far the exercise of such power and jurisdiction is controlled
by and dependent upon the laws of this realm"; and enacts that "Her
Majesty may exercise any power or jurisdiction which Her Majesty
now hath, or may at any time hereafter have, within any country out
of Her Majesty's dominions, in the same and as ample a manner as if
Her Majesty had acquired such power or jurisdiction by the cession
or conquest of territory."

The effect of this section is that the jurisdiction of the
British Consul in the Ottoman Empire became, within the
limits within which it existed by usage or sufferance, liable
to be regulated by Order in Council. Now the Order in
Council, dated the 27th of August, 1860, recites, among
other matters, that

"Her Majesty has had and now has power and jurisdiction in the
Ottoman dominions, and that it is expedient to revise and consolidate
the provisions of the former Ord«rs and to make further provi-
sion for the due exercise of Her Majesty's power and jurisdiction
aforesaid and for the more regular and efficient administration of
justice and the better maintenance of order among all classes of Her
Majesty's subjects and of persons enjoying Her Majesty's protection,
resident in or resorting to the dominions of the Sublime Ottoman
Porte * * *.

"The Supreme or other Consular Court, according to its respective
jurisdiction, original or appellate (as the case may require), and in
conformity with the rules relating to suits between British subjects
and appeals therein, may hear and determine any suit, proceeding, or
question of a civil nature instituted, taken, or raised by a British
subject against a subject of the Sublime Ottoman Porte, or a subject
or citizen of any other State in amity with Her Majesty or by a subject
of the Sublime Ottoman Porte, or a subject or citizen of any other
state in amity with Her Majesty against a British subject: Provided
that the subject of the Sublime Ottoman Porte, or the subject or citizen
of such other State as aforesaid, obtains and files in such Court the
consent in writing of the competent local authority on behalf of the
Sublime Ottoman Porte, or of the Consul of such other State (as the
case may be), to his submitting, and does submit, to the jurisdiction
of the Supreme or other Consular Court, and, if required, gives
security to the satisfaction of the Court, by deposit or otherwise, to
pay fees, damages, costs, and expenses, and abide by and perform any
such decision as may be given by the Supreme or other Consular Court
originally or on appeal (as the case may require).""

"Sec. 64.

PAPAYANNI V. RUSSIAN ETC. CO., 1863. 25

The plaintiff in this case has complied with these con-
ditions, and has thereby submitted himself in this suit to
the jurisdiction of this Consular Court. The Court has no
jurisdiction over him except by his consent. It could not
have entertained the cross-action unless by his submission
to its authority and it has compelled him to give that
consent by refusing to proceed in the action which he has
instituted against the original defendants unless he con-
sented to do justice by appearing to the cross-action which
they desired to institute against him. He has thought fit
to comply with these terms, and he does not now complain
of them, and it would be singular if the party who himself
is by law subject to such tribunal could raise an objection
that the Consular Court had no right to exercise the juris-
diction which, at his instance, it has enforced against his
adversary. The general right of the Consular Court to
entertain the suit under these circumstances is perfectly
clear and to throw any doubt upon it would be to subvert all
the principles upon which justice is administered amongst
the subjects of Christian powers in this and other countries
of the East.

Hitherto we have spoken of jurisdiction in its general
sense and have stated our conclusion that for a case of
collision in the Sea of Marmora some legal proceeding would
belong to the Consular Court. Now we must inquire fur-
ther whether it was competent to that Court to proceed as
if it were invested with the authority of a Vice-Admiralty
Court. We think that question must be solved by reference
to the usage which has prevailed; the usage respecting
the arrest of vessels, the proceeding in rem.

So far as we can ascertain from the information furnished
to us, there appears to have been one case of collision
possibly more, but there is proof of one only. The Con-
sular Judge, however, states that proceedings in rem have
been customary and especially in causes of bottomry. Now
causes of bottomry, where the ship is arrested, are clearly
proceedings in 7'em, usually of admiralty jurisdiction. We
think that by the very extensive and comprehensive terms
used, such a jurisdiction, whether to be called by that name,
has been conferred upon the Consular Court and if in bot-

26 I EXTRATERRITORIAL CASES.

tomry we can discover no reason why it should not exist in
causes of collision : the same considerations of convenience,
the same necessity for obtaining justice, subsist in both
cases. It is not necessary to declare that the Consular
Court possessed full admiralty jurisdiction; it is sufficient
to express our concurrence with the Consular Judge that,
with respect to proceedings in rem, the causes of action
occurring within given limits, and the usage of so treating
cognate causes, such as bottomry cases, justify him in the
course he has pursued on the present occasion, and, there-
fore, we must uphold the jurisdiction.

There is, however, another question which required our
serious attention. There was a cross-action in addition to
the original action. The judge found both parties to blame
and he ordered that the damage sustained by each should
be added together and each party pay one half. The
effect on the present occasion would be a loss to the Laconia
of about £20,000 : but it is not to the effect we must look ;
we must direct our attention to other considerations. Had
the rule prevailing at common law been adopted, each
party would have had to bear his own loss. Opinions may
differ, and indeed do differ, as to what course is most con-
sonant to justice. This question we are not called upon
to decide ; but what we have to decide is, when the proceed-
ing is in rem, what ought to be the rule? What was the
intention of the authority which sanctioned and made legal
the exercise of the jurisdiction in rem? Could it be in-
tended to constitute a jurisdiction in rem with a common
law remedy? We think that no such anomaly could be
intended and, therefore, concur in the view of the Con-
sular Court. We regard the recent Order in Council, by
which a certain admiralty jurisdiction is expressly given,
not as creating such jurisdiction, but only as expressing
more distinctly and with greater detail the authority which
had been already conferred by former Orders.

It now becomes their Lordships' duty to state the
determination at which they have arrived upon the merits
of the case. After the most careful and anxious consider-
ation of every part of the evidence and of every point in

RE CONSULAR JURISDICTION, APRIL 21, 1866. 27

the argument, their Lordships concur in the intimation
given by the learned Judge of the Court below, that "under
the circumstances it would seem a simple, and perhaps it
would be the right course, to say neither party has proved
his case." That is the decision which their Lordships
have adopted, and they will, therefore, humbly recommend
to Her Majesty that the judgment of the Supreme Con-
sular Court be reversed, and that both actions be dis-
missed, each party paying their own costs throughout, and
that the moneys deposited be given up and the securities
vacated.

RE CONSULAR JURISDICTION IN JAPAN.

[April 21, 1866; 11 Ops. Attys.-Gen. 474.]

SYII.ABUS.

(By the author and the Editor.)

1. CONSULAR JURISDICTION: Set Off. An American consular court

in Japan cannot, in the case of a suit by a person not a citizen
of the United States against an American merchant, entertain
a plea of set-off further than to the extent of the claim asserted
by the plaintiff.

2. Id. : No Judgment Against Alien. Such a court cannot, under the

treaty with Japan and the statutes of the United States, render
a judgment against a person of foreign birth not a citizen of the
United States.

Speed, Attorney -Geyieral (To Secretary of State Seward) :
I have the honor to acknowledge the receipt of your letter
of January 10, 1866, together with a dispatch, No. 20,
dated May 30, 1865, from the United States Consul at
Kanagawa relative to a case tried by the consular court at
that place.

From that despatch, it appears that Adrian & Co., Dutch
merchants, brought an action of debt in the consular court
against Schultz, Reis, & Co., American citizens. The de-
fendants in the action, Schultz, Reis, & Co., pleaded a set-
off, and the Consul rendered judgment in favor of the
defendants against the Dutch merchants for $1,952.65.

28 I EXTRATERRITORIAL CASES.

Upon these facts, you ask me the following questions :

"1. Is the law of 'set-off' properly to be recognized in a consular
court of the United States?

2. As the consular court at Kanagawa is the creature of the treaty
with Japan and the statutes of the United States, can it render
judgment against a person of foreign birth, not a citizen of the United
States, in Japan?"

Your first question is a general one, and applies to all
cases which may be brought for debt before a consular court
in Japan, no matter who may be the parties thereto.

In an action between citizens of the United States, in the
consular court in Japan, the doctrine of "set-off" certainly
applies; not so, however, when the subject of another
country is plaintiff.

By the 6th article of the treaty betwixt the United
States and the Empire of Japan, it is provided, that

"Americans committing offences against Japanese shall be tried
in American consular courts, and, when guilty, shall be punished
according to the American law. Japanese committing offences against
Americans shall be tried by the Japanese authorities, and punished
according to Japanese law. The consular courts shall be open to
Japanese creditors, to enable them to recover their just claims against
American citizens; and the Japanese courts shall, in like manner, be
open to American citizens, for the recovery of their just claims against
Japanese."

It will be perceived that the high contracting powers
understood either that consular courts existed in Japan by
usage and custom, or that they had their existence and
derived their powers from statutes of the Government of
the United States. They are spoken of as tribunals which
had then a rightful and lawful existence.

The legislation of the Government shows that consular
courts had been established in the countries long before
the treaty with Japan was concluded. It is fair to infer
that the Japanese Government intended to concede to the
Government of the United States the right and power to
create consular courts in Japan with as broad or as limited
jurisdiction as the United States might deem proper, except
as to matters of controversy betwixt Japanese and Amer-
icans.

RE CONSULAR JURISDICTION APRIL 21, 1866. 29

I do not think, however, it can be fairly inferred, from
this article of the treaty, that it was within the contempla-
tion of the parties that the Government of the United
States should confer upon American consular courts in
Japan jurisdiction over the subjects or citizens of other
countries resident in Japan.

Turning from the treaty to the statute,^ we find, by
the 1st section of the act, that, in addition to other powers
and duties imposed upon ministers and consuls, they shall
be invested with the judicial power described in the statute,
which shall appertain to the office of minister and consul,
and be a part of the duties belonging thereto, wherein the
same is allowed by treaty. The 3rd section says that the
jurisdiction of the consular courts shall embrace all con-
troversies between citizens of the United States and others
provided for by such treaties respectively; and the 4th
section declares that the laws of the United States, so far
as is necessary to execute such treaties respectively, shall
extend to all citizens of the United States in the said coun-
tries, and over all others, to the extent that the terms of
the said treaties respectively justify or require, so far as
such laws are suitable to carry the said treaties into effect.
These provisions of the statute, in my opinion, extend
the laws of the United States over citizens of the United
States resident in Japan, and fully invest the consular courts
of Japan with authority to hear and determine all matters
of controversy arising between citizens of the United States.
Under the treaty with Japan, the Government of the United
States had the authority to give such jurisdiction to con-
sular courts.

I do not think that either the treaty or the statute confers
express jurisdiction upon consular courts either, to exercise
criminal or civil jurisdiction over persons in Japan
who are not citizens of the United States or subjects of

^ "An act to carry into effect provisions of the treaties between the
United States, China, Japan, Siam, Persia, and other countries, giving
certain judicial powers to ministers and consuls, or other functionaries
of the United States in those countries, and for other purposes,"
approved June 22, 1860. (12 Stats, at Large, 72.)

30 I EXTRATERRITORIAL CASES.

the Japanese empire; and, if the question were an open
one, I should doubt whether a consular court, established
under the act of Congress, could entertain a suit by a Dutch
subject against a citizen of the United States; but I find
that, in a very able and learned opinion, delivered by
Attorney-General Gushing, he has expressed the opinion,
that, under the treaty with Ghina, a suit may be brought
by an Englishman or Frenchman in an American consular
court of the United States against an American citizen.
That opinion - was delivered September 19, 1855. The
treaty with Japan was concluded at the city of Yedo, on the
29th of July, 1858, and exchanged at the city of Washington
on the 22d of May, 1860, and proclaimed the next day by
the President.^ That treaty was doubtless made with refer-
ence to the opinion as given by Attorney-General Gushing;
and, when the words "consular courts" were used in the
treaty, they were used doubtless in reference to the courts
as described in his opinion. And the act of Gongress,
before referred to, is almost a copy of the act upon which
Attorney-General Gushing commented in his opinion. I
find in the "United States Consul's Manual," published in
1856, and which is in the hands of consuls of the United
States, that the opinion of Attorney-General Gushing is set
down as the law for their government.

Considering, then, the date of the Japanese treaty, the
act of Gongress, the opinion of Attorney-General Gushing,
and the fact that the Consul's Manual lays it down that
consular courts have jurisdiction of controversies wherein
citizens and subjects of other countries are plaintiffs and
citizens of the United States are defendants, it would not
be proper now to consider the question as an open one.

But that does not dispose of the question of jurisdiction
upon a plea of "set-off." Set-off is a cross-action — a suit
wherein the defendant becomes the plaintiff and the plain-
tiff in the original suit the defendant. Courts derive their
powers from the law, and not from the consent of parties.
Arbitrators are made by the parties. The law makes the

7 Opinions, 518.
' 12 Stats, at Large, 1051.

RE CONSULAR JURISDICTION, APRIL 21, 1866. 31

courts. Arbitrators can submit what they please for award.
Courts cannot take jurisdiction of matters except as au-
thorized by the law. This is true of courts of limited
jurisdiction and especially true in regard to courts that
exist under treaties between independent countries and ex-
ercising powers in a country in which the judge of the court
is a foreigner, owing no allegiance there, and whose power
exists only by the courtesy of the country in which he
exercises the functions of his office. The maxim that a
court should amplify its jurisdiction for the sake of justice
does not apply to a court of limited jurisdiction and ought
not to apply to a court existing under a treaty and exercis-
ing its authority in a foreign country. A jurisdiction to
hear and determine a complaint made by the subject of
another country against a citizen of the United States, does
not confer jurisdiction of a cross-action in a consular
court. So far as set-off is a defence it may be pleaded.

I am of opinion, therefore, upon the case submitted, that
a consular court could not entertain the plea of set-off*
further than the extent of the claim asserted by the Dutch
merchant ; and, secondly, that the consular court could not,
under the treaty with Japan, and the statutes of the United

* In Imperial Japanese Government v. Peninsular & Oriental Com-
pany, 1895, A. C, 644, which was an action originally brought in
the British Consular Court at Yokohama for damages to a warship
resulting from a collision with one of defendant's vessels, each party
alleged that the other alone was at fault and defendant asked leave
to file a counterclaim which was refused by the Consular Court,
allowed by the Supreme Court on appeal, but finally denied by the
Judicial Committee of the Privy Council, where it was observed:

"If the respondents' contention be well founded, it must apply
equally where a British subject brings an action in a Japanese or
Chinese Court in respect of a claim against a Japanese or Chinese
subject. The Japanese or Chinese Court would be entitled to
allow a counter-claim to be made against a British subject and
to require security to be given to satisfy the counter-claim, what-
ever its amount and however much in excess of the claim, and to
stay proceedings in the action until the security was given. The
effect would be to deny the British subject any redress in the local
court except upon the terms of his submitting to its arbitrament a
dispute which under the treaty was reserved exclusively for the de-
termination of the British Consular Court." Ed.

32 I EXTRATERRITORIAL CASES.

States, render a judgment over against a person of foreign '
birth, not a citizen of the United States, in Japan.

IN THE UNITED STATES SUPREME COURT.
Francis Dainese v. Charles Hale.

[Decided October 25, 1875; 91 U. S. 13, 23 L. ed. 190.]

SYLLABUS.

(By the Court and the Editor.)

1. CONSULS: Judicial Powers are not necessarily incident to the of-

fice of consul but are usually conferred upon consuls in non-
Christian countries as regards conti-oversies involving their
own nationals.

2. Id. : Id. : The existence and extent of such powers depend on the

treaties and laws of the nations concerned.

3. Id.: Id.: Turkey. The Turco- American treaty of 1862, if not that

of 1830, concedes to the United States the same consular juris-
diction, civil and criminal, as is enjoyed by other Christian na-
tions, and the act of Congress of June 22, 1860, provides the
regulations for its exercise.

4. Id. : -Id.: Id. But such jurisdiction rests on the laws and usages

of the country which must be pleaded and proved and will not be
judicially noticed as a rule.

In error to the District of Columbia Supreme Court.

Messrs. F. P. Cuppy and -S. S. Henkle, for plaintiff in
error.

Mr. W. Penn Clar^ke, for defendant in error.

BRADLEY, J.:

This action was brought to recover the value of certain
goods, chattels and credits of the plaintiff, which the de-
fendant, in November, 1864, then being consul-general
of the United States in Egypt, caused to be attached. The
declaration alleged that the defendant, by usurpation and
abuse of his power as such consul-general, and for the

* See Papayanni v. Russian Steam Navigation Co., ante, pp. 12-25.

In the China and Korea Order in Council of 1904 it was expressly
provided [Sec. 151 (3)]:

"A cross-action or counter-claim shall not be brought in the Court
against a plaintiff, being a foreigner." Ed.

DAINESE V. HALE, OCT. 25, 1875. 33

malicious purpose of injuring the plaintiff, took cognizance
of a certain controversy between the plaintiff and Richard
H. and Anthony B. Allen (all being citizens of the United
States, and none of them residents of or sojourners within
the Turkish dominions at that time) , and made and issued
the order of attachment by virtue of which the seizure in
question was made.

The defendant pleaded that, at the time of issuing the
attachment, he was agent and consul-general of the United
States in Egypt, and was furnished with a letter of credence
from the President of the United States to the Pasha ; that
in his said official capacity he exercised the functions and
duties of a minister; and by the law of nations, as well as
the laws of the United States, he was invested with judicial
functions and power over citizens of the United States resid-
ing in Egypt, and in the exercise of those functions, took
cognizance of the cause referred to in the declaration and
issued the attachment complained of. To this plea there
was a general demurrer.

The defendant, by his plea, asked the court to take ju-
dicial notice that his official character gave him the juris-
diction which he assumed to exercise. Could the court do
this? * * *

It cannot be contended that every consul, by virtue of
his office, has power to exercise the judicial functions
claimed by the defendant; for it is conceded that this is
not the case in Christian countries. And whilst, on the
other side, it is also conceded that in Pagan and Moham-
medan countries it is usual for the ministers and consuls
of European States to exercise judicial functions as between
their fellow-subjects or citizens, it clearly appears that the
extent to which this power is exercised depends upon trea-
ties and laws regulating such jurisdiction. The instructions
given by the British Foreign Office to their consuls in the
Levant in 1844, as quoted by Mr. Phillimore,' do not claim
anything more. They say :

"The right of British consular officers to exercise any jurisdic-
tion in Turkey, in matters which in other countries come exclusively

'Int. Law, Vol. IL p. 273, sec. 277.

14008 O. W. 3

34 I EXTRATERRITORIAL CASES.

under the control of the local magistracy, depends originally on the
extent to which that right has been conceded by the sultans of Turkey
to the British Crown; and, therefore, the right is strictly limited to
the terms in which the concession is made. The right depends, in
the next place, on the extent to which the Queen, in the exercise of
the power vested in Her Majesty by Act of Parliament, may be
pleased to grant to any of her consular servants authority to exercise
jurisdiction over British subjects."

Historically, it is undoubtedly true, as shown by numerous
authorities quoted by Mr, Warden in his treatise on "The
Origin and Nature of Consular Establishments," that the
consul was originally an officer of large judicial as well as
commercial powers, exercising entire municipal authority
over his countrymen in the country to which he was ac-
credited. But the changed circumstances of Europe, and
the prevalence of civil order in the several Christian States,
have had the effect of greatly modifying the powers of the
consular office; and it may now be considered as generally
true, that, for any judicial powers which may be vested in
the consuls accredited to any nation, we must look to the
express provisions of the treaties entered into with that
nation, and to the laws of the States which the consuls
represent.

The transactions which are the subject of this suit took
place in 1864; and the powers of our Consul-General in
Egypt at that time must be regulated by the treaties with
Turkey and by the laws of the United States then in force.

The first treaty ^ between the United States and the Ot-
toman Porte was concluded in 1830 and, amongst other
things, it provided, in article III, that

"American merchants established in well-defended States of the
Sublime Porte for purposes of commerce shall not be disturbed in
their affairs, nor shall they be treated in any way contraiy to es-
tablished usages."

By article IV, it was further provided as follows:

"If litigations and disputes should arise between the subjects of
the Sublime Porte and citizens of the United States, the parties shall
not be heard, nor shall judgment be pronounced, unless the American
dragoman be present. Causes in which the sum may exceed five

' 8 Stats, at Large, 408.

DAINESE V. HALE, OCT. 25, 1875. 35

hundred piasters shall be submitted to the Sublime Porte, to be de-
cided according to the laws of equity and justice. Citizens of the
United States of America, quietly pursuing their commerce, and not
being charged or convicted of any crime or offense, shall not be
molested; and, even when they may have committed some offense,
they shall not be arrested and put in prison by the local authorities,
but they shall be tried by their minister or consul and punished ac-
cording to their offense, following, in this respect, the usage observed
towards others Franks."

In 1848 an act of Congress was passed,^ entitled

"An act to carry into effect certain provisions in the treaties be-
tween the United States and China and the Ottoman Porte, giving
certain judicial powers to Ministers and Consuls of the United States
in those countries."

A treaty ' had been made with China in 1844, conceding
to the authorities of the United States full civil and criminal
jurisdiction between citizens of the United States in that
country. The law was passed in reference to this treaty
and to that with the Ottoman Porte before cited.

This act contained regulations as to the mode of exercis-
ing the judicial powers stipulated for in the treaty with
China. It conferred these powers upon the resident com-
missioner and consuls, respectively, and authorized them to
adjudicate in accordance with the laws of the United States-
and the common law, supplemented, when these were in-
sufficient, by decrees and regulations to be made by the
commissioner himself. The Commissioner, with the advice
of the consuls, was to prescribe the forms of process and
proceeding. By the 22nd section of the act, its provisions,
so far as related to crime committed by citizens of the
United States, were extended to Turkey under the treaty
of 1830, to be executed by the ministers and consuls of
the United States in that country, who were ex-officio vested
with the powers given by the act to similar officials in
China, so far as regarded the punishment of crime.

It is evident that this act failed to confer upon the consuls
of the United States in Turkey any power to exercise ju-
dicial functions in civil cases, whatever may have been the
scope and intention of the treaty of 1830. Whilst it may

'9 Stats, at Large, 276.
" 8 Stats, at Large, 592.

36 I EXTRATERRITORIAL CASES.

be true that the expression in the third article of the treaty,
that American merchants shall not be disturbed in their
affairs, nor treated contrary to established usages, was
understood to and did confer upon American merchants the
same privileges of exterritoriality enjoyed by the subjects
of other Christian nations, the act of 1848 did not assume
to enforce such a construction of it.

But in 1860, another act '" was passed to carry into effect
a new treaty made with China in 1858, and other treaties '^
made with Japan, Siam, Persia and other countries by
which very full and explicit regulations were again made
in reference to the exercise of judicial powers by ministers
and consuls of the United States in those countries. By the
21st section of this act, the same declaration was made as
in the 22nd section of the Act of 1848 in reference to the
criminal jurisdiction to be exercised by the minister and
consuls of the United States in Turkey; and a clause was
added, giving them civil jurisdiction also, as follows :

"Who [referring to such minister and consuls] are hereby ex-
officio vested with the powers herein conferred upon the minister and
consuls in China, for the purposes above expressed, so far as regards
the punishment of crime" adding, " and also for the exercise of juris-
diction in civil cases wherein the same is permitted by the laws of
Turkey, or its usages in its intercourse with the Franks or other
foreign Christian nations."

So far, then, as the true construction of the treaty of 1830
would permit the exercise of civil jurisdiction by our consuls,
the act of 1860 authorized it to be exercised, and supplied
all the regulations necessary for that purpose.

In 1862, another treaty " was entered into with the Ot-
toman Porte, by which, after confirming all such parts of
the treaty of 1830 as were not abrogated or changed,
amongst other things it was provided in article I, as
follows :

"All rights, privileges or immunities which the Sublime Porte now
grants or may hereafter grant to or suffer to be enjoyed by the

'12 Stats, at Large, 72.
*12 Stats, at Large, 1081.
' 12 Stats, at Large, 1213.

DAINESE V. HALE, OCT. 25, 1875. 37

subjects, ships, commerce, oi* navigation of any foreign power, shall
be equally granted to and exercised and enjoyed by the citizens, ves-
sels, commerce and navigation of the United States of America."

If, therefore, it be true, as laid down by writers and
public documents, that the subjects of other Christian na-
tions have and enjoy in Turkey the right to have their
civil controversies decided by their own minister and con-
suls, it would seem clear, that under the treaty of 1862,
if not under that of 1830, the same right is guaranteed to
citizens of the United States.

But it is objected, that, in 1864, no act had been passed
by Congress to carry the last treaty into effect. Such an
act * was passed in 1866, simply, however, extending to
Egypt and the Consul-General there the provisions of the
act of 1860. This clause was probably adopted merely to
obviate any doubt on the subject. For as treaties made
under the authority of the United States are, by the Consti-
tution, declared to be part of the supreme law of the land,
when they are complete in themselves, and need no sup-
plemental legislation to carry them into effect, such legisla-
tion is not necessary for the purpose of giving them force
and validity. So far as relates to the jurisdiction in ques-
tion, this is the character of the treaty of 1862, taken in
connection with the act of 1860. The act gave the juris-
diction so far as usage in Turkey would permit it. The
treaty secured the consent of the Turkish Government
to its exercise.

The State Department seems to have regarded the Treaty
of 1830 as establishing the jurisdiction in question. In the
instructions contained in the Consuls' Manual,^ promulgated
by the Department in December, 1862, it is said ^° that the
acts of Congress of 1848 and 1860 provided in terms for
the exercise of judicial authority by ministers and consuls
in Turkey only so far as regards the punishment of crime,
leaving the question of civil jurisdiction to stand upon

' Sec. 11 of Appropriation Bill, 14 Stats, at Large, 322.
" Adopting the learned opinion of Attorney General Gushing, dated
Oct. 23, 1855, 7 Op. Attys. Gen., 565.
'" Sec. 165.

4793fJ

38 I EXTRATERRITORIAL CASES.

treaties of the peculiar public law of the Levant, And after
referring to the language of Article III of the treaty of
1830, which stipulated that:

"American merchants established in the well-defended States of
the Sublime Porte for purposes of commerce, shall not be disturbed
in their affairs, nor shall they be treated in any way contrary to
establish usages,"

and conceding that its construction might admit of dis-
cussion, the following conclusions were, nevertheless,
reached :

As to all civil affairs to which no subject of Turkey is a party,
Americans are wholly exempt fi-om the local jurisdiction; and in
civil matters, as well as criminal, Americans in Turkey are entitled
to the benefit of "the usage observed towards other Franks." '■' *

The phrase in the second article engages that citizens of the United
States in Turkey shall not be "treated in any way contrary to es-
tablished usages" which "are the absolute exemption of all Franks,
in controversies among themselves, from the local jurisdiction of the
Porte."

The general doctrine thus in force in the Levant of the exterri-
toriality of foreign Christians, has given rise to a complete system
of peculiar municipal and legal administration, consisting of:

1. Turkish tribunals for questions between subjects of the Porte
and foreign Christians.

2. Consular courts for the business of each nation of foreign Chris-
tians.

3. Trial of questions between foreign Christians of different na-
tions in the consular court of the defendant's nation.

4. Mixed tribunals of Turkish magistrates and foreign Christians
at length substituted in part for cases between Turks and foreign
Christians.

5. Finally, for causes between foreign Christians, the substitu-
tion at length of mixed tribunals in place of the separate courts — an
ai'rangement introduced first by the legations of Austria, Great Bri-
tain, France, and Russia, and then tacitly acceded to by the legations
of other foreign Christian nations."

These conclusions, being publicly issued by the proper
Executive Department of the Government for the instruc-
tion and guidance of our consuls, are entitled to the highest
respect in construing the statutes and treaties upon which

Consul's Manual of Dec, 1862, sees. 169-171.

DAINESE V. HALE, OCT. 25, 187 5. 39

their powers depend. And, in view of the confirmatory as
well as independent effect of the act of 1860 and the treaty
of 1862, we have no doubt that in 1864, when the transac-
tions in question took place, the minister and principal
consuls of the United States in Turkey (including the
Consul-General in Egypt) had all such jurisdiction in civil
causes between citizens of the United States as was per-
mitted by the laws of Turkey or its usages in its intercourse
with other Christian nations.

But here we are met by a difficulty arising from the ex-
treme generality of the defense set up in the plea. What
are the laws of Turkey and its usages in its intercourse
with other Christian nations in reference to the powers
allowed to be exercised by their public ministers and consuls
in judicial matters? The plea does not inform us. It
leaves the court to infer or to take judicial knowledge of
those laws and usages. But can it do this? Foreign laws
and usages are, as to us, matters of fact and not matters
of law ; and although the court may take judicial cognizance
of many matters of fact of public importance, yet of foreign
laws and customs, which are multiform and special in their
character, it would be very dangerous for it to do so, at
least without having had them brought to its attention and
knowledge by previous adjudications or proofs. The gen-
eral fact that public ministers and consuls of Christian
States in Turkey exercise jurisdiction in civil matters be-
tween their fellow-citizens or subjects, might be assumed as
sufficiently attested by the works on international law and
the acts and instructions of our own government. But the
precise extent of this jurisdiction is unknown to us. Whether
it applies to any but residents in Turkey, or to travelers as
well ; whether to persons not in the country at all but having
property there, or claims against persons who are there;
whether to cases like the present, where neither party
resides in Turkey or is sojourning there, are questions which
are not answered by the ordinary statements made in ref-
erence to this jurisdiction. As the power of the Consuls
of the United States, according to the treaties and laws as

40 I EXTRATERRITORIAL CASES.

they stood in 1864, depended on the laws or usages of
Turkey, those laws or usages should have been pleaded in
some manner, however briefly, so that the court could have
seen that the case was within them ; for, failing to do this,
the plea was defective in substance, and judgment should
have been rendered for the plaintiff on the demurrer.

The judgment of the Supreme Court of the District of
Columbia must be reversed and the cause remanded, with
directions to allow the defendant to amend his plea on
payment of costs.

IN THE UNITED STATES SUPREME COURT.
In re John M. Ross, Petitioner.

[Decided May 25, 1891; 140 U. S., 453, 35 L. ed., 581.]

SYLLABUS.
(By the Court and the Editor.)

1. EXTRATERRITORIALITY: CONSTITUTION NOT EXTENDED. By the

Constitution of the United States a government is ordained and
established "for the United States of America," and not for
countries outside of their limits; and that Constitution can have
no operation in another country.

2. Id.: Jury Trial not Required. The law^s passed by Congress to

carry into effect the provisions of the treaties granting extra-
territorial rights in Japan, China, etc. (Rev. Stat. 4083-4096),
do not infringe the said Constitution tho requiring neither in-
dictment nor jury.
3 Id.: "The Term 'High Seas' includes vi^aters on the sea-coast with-
out the boundaries of low-water mark."

4. Id.: Offences on "High Seias." Concurrent Jurisdiction. The

jurisdiction given to domestic tribunals of the United States
over offences committed on the high seas in the district where
the offender may be found, or into which he may be first brought,
does not exclude that of a consular tribunal in Japan, China,
etc., to try for a similar .offence, committed in a port of the
country in which the tribunal is established, when the offender
is not taken to the United States.

5. Id.: Treaties. Article IV of the treaty of June 17, 1857, with

Japan is still in force notwithstanding the provisions in Article
XII of the treaty of July 29, 1858.

IN RE ROSS, MAY 25, 1891. 41

6. Id.: Ships. When a foreigner enters the mercantile marine of a

nation, and becomes one of the crew of a merchant vessel bear-
ing its flag, he assumes a temporary allegiance to the flag, and,
in return for the protection afforded (454 ') him, becomes subject
to the laws by which that nation governs its vessels and sea-
men.

7. Id.: Id.: Construction. A law or treaty should be construed so

as to give effect to the object designed, and to that end all
its provisions must be examined in the light of surrounding
circumstances.

8. Id.: Id. The fact that a vessel is American is evidence that sea-

men on board are Americans also.

9. CRIMES: PARDONS: Conditions. When a person convicted of mur-

der accepts a "commutation of sentence or pardon" upon condi-
tion that he be imprisoned at hard labor for the term of his
natural life, there can be no question as to the binding force
of the acceptance.

The petitioner below, the appellant here, was imprisoned
in the penitentiary at Albany in the State of New York. He
was convicted on the 20th of May, 1880, in the American
consular tribunal in Japan, of the crime of murder, com-
mitted on board of an American ship in the harbor of
Yokohama in that empire, and sentenced to death.

On the 6th of August following his sentence was com-
muted by the President to imprisonment for life in the
penitentiary at Albany, and to that place he was taken and
there he has ever since been confined. Nearly ten years
afterwards, on the 19th of March, 1890, he applied to the
Circuit Court of the United States for the Northern District
of New York for a writ of habeas corpus for his discharge,
alleging that his conviction, sentence and imprisonment were
unlawful, and stating the causes thereof and the attendant
circumstances. The writ was issued, directed to the super-
intendent of the penitentiary, who made return that he held
the petitioner under the warrant of the President, of which
a copy was annexed, and was as follows :

* The pages of the original are here shown in parenthesis.

42 I EXTRATERRITORIAL CASES.

"Rutherford B. Hayes, President of the United States of America,
to all to whom these presents shall come, Greeting:

"Whereas John M. Ross, an American seaman on board of the
American ship 'Bullion,' was, on the 20th day of May, 1880, convicted
of the crime of murder, committed on board the said ship 'Bullion,'
then in the harbor of Yokohama, Japan, before Thomas B. Van
Buren, Esquire, consul general (455) of the United States at Kana-
gawa, Japan, holding court at that place, and was by said consul
general on such conviction aforesaid, in pursuance and by authority
of the statutes of the United States to that end made and provided,
sentenced to be hanged, 'at such time and place as the United States
minister in Japan may direct, according to law;'

"And whereas Mr. Bingham, the United States minister aforesaid,
on the 22d of May following, approved the proceedings, verdict and
sentence ;

"And whereas the said minister has postponed the execution of
sentence, believing the ends of justice demand it, and has submitted
the record of the case to the Department of State for the President's
consideration and for commutation of sentence or pardon, if deemed
advisable;

"And whereas the President, upon a careful consideration of the
facts and circumstances of the case as they were presented in the
record of the proceedings and by a report from the Secretary of
State, has arrived at the conclusion that the ends of justice will be
fulfilled by the infliction of a less severe punishment than that of
death:

"Now, therefore, be it known that I, Rutherford B. Hayes, Pres-
ident of the United States of Amei'ica, in consideration of the prem-
ises, divers other good and sufficient reasons also me thereunto
moving, do hereby pardon the said John M. Ross on condition that the
said John M. Ross be imprisoned at hard labor for the term of his
natural life in the Albany penitentiary, in the State of New York.

"This order will be carried into effect under the direction of the
Secretary of State.

"In testimony whereof I have hereunto signed my name and caused
the seal of the United States to be affixed.

"Done at the city of Washington this sixth day of August, A. D.
1880, and of the Independence of the United States the one hundred
and fifth.

"[SEAL.]

"R. B. Hayes.
"By the President:
"Wm. M. Evarts, Secretary of State."

(456) To this warrant was annexed a copy of the peti-
tioner's acceptance of the conditional pardon of the Pres-

IN RE ROSS, MAY 25, 1891. 43

ident, certified to be correct by the United States consul
general in Japan. It was as follows:

"I, John M. Ross, the person named in the warrant of conditional
pardon granted to me by the President of the United States of
America, dated the sixth day of August, 1880, and of which the
foregoing is a correct copy, do hereby acknowledge the delivery of
said original warrant of conditional pardon to me, and do hereby
voluntarily and without qualification accept said conditional pardon
with the condition thereof as therein stated, to wit, that 'I, Ruther-
ford B. Hayes, President of the United States of America, etc., etc.,
do hereby pardon the said John M. Ross on the condition that the
said John M. Ross be imprisoned at hard labor for the term of his
natural life in the Albany penitentiary, in the State of New York.'

"John M. Ross.

"Kanagawa, Yokohama, Japan, February 28th, 1881.

"Witness: Thos. B. Van Buren, U. S. Consul General"

The case was then heard by the Circuit Court, counsel
appearing for the petitioner and the assistant United States
attorney for the government. On the hearing, a copy of the
record of the proceedings before the consular tribunal and
of the communications by the consul general to the state
department respecting them, on file in that department, was
given in evidence. No objection was made to its admis-
sibility.

The facts of the case as thus disclosed, so far as they
were deemed material to the decision of the questions pre-
sented, were substantially as follows :

On the 9th May, 1880, the appellant, John M. Ross, was
one of the crew of the American ship Bullion, then in the
waters of Japan, and lying at anchor in the harbor of Yoko-
hama. On that day, on board of the ship, he assaulted
Robert Kelly, its second mate, with a knife, inflicting in
his neck a mortal wound, of which in a few minutes after-
wards he died (457) on the deck of the ship. Ross was at
once arrested by direction of the master of the vessel and
placed in irons, and on the same day he was taken ashore
and confined in jail at Yokohama. On the following day,
May 10, the master filed with the American consul general
at that place, Thomas B. Van Buren, a complaint against
Ross, charging him with the murder of the mate. It con-

44 I EXTRATERRITORIAL CASES.

tained sufficient averments of the offence, was verified by
the oath of the master, and to it the consul general appended
his certificate that he had reasonable grounds for believing
its contents were true. The complaint described the ac-
cused as one "supposed to be a citizen of the United States."
On the 18th of that month an amended complaint was filed
by the master of the ship with the consul general in which
accused was described as "an American seaman, duly and
lawfully enrolled and shipped and doing service as such
seaman on board the American ship Bullion." The com-
plaint was also amended in some other particulars. It was
as follows :

"U. S. Consular General Court, Kanagawa, Japan.

"Amended Complaint.

"John P. Reed, master of the American Ship 'Bullion,' on oath
complains that John Martin Ross, an American seaman, duly and
lawfully enrolled and shipped and doing service as such seaman on
board the American ship 'Bullion,' did on the early morning of the
9th day of May, 1880, on board of said ship, while lying in the
harbor of Yokohama, Japan, and within the jurisdiction of this
court, with force and arms, maliciously, feloniously, deliberately, wil-
fully and of his malice aforethought, make an assault upon one
Robert Kelly, the mate of said ship, and did then and there felon-
iously, maliciously, deliberately and of malice aforethought, strike
and cut the said Robert Kelly with a knife, from which said
Robert Kelly died on board said ship a short time thereafter.
"Wherefore affiant charges that said John Martin Ross wilfully
and maliciously killed and murdered the said Robert Kelly, (458)
and affiant further says that said John Martin Ross is still a
seaman on said ship.

"J. P. Reed.

"Sworn and subscribed before me this 18th day of May, 1880.

"Thos. B. Van Buren,

"U. S. Consul General."

To this amended complaint was annexed a certificate of
the consul general that he had reasonable grounds for
believing its contents to be true, similar to the one to the
original complaint.

Previously to its being filed the accused appeared with
counsel before the consul general, and the complaint being
read to him, he presented an affidavit stating that he was

IN RE ROSS, MAY 25, 1891. 45

a subject of Great Britain, a native of Prince Edward's
Island, a dependency of the British Empire, and had never
renounced the rights or liabilities of a British subject or
been expatriated from his native allegiance or been nat-
uralized in any other country. Upon this affidavit he con-
tended that the court was without jurisdiction over him by
reason of his being a subject of Great Britain and he
prayed that he be discharged. His contention was termed
in the record a demurrer to the complaint.

The court held that as the accused was a seaman on an
American vessel, he was subject to its jurisdiction and over-
ruled the objection. The counsel of the accused then moved
that the charge against him be dismissed on the ground
that he could not be held for the offence except upon the
presentment or indictment of a grand jury but this motion
was also overruled.

Four associates were drawn, as required by statute and
the consular regulations, to sit with the consul general on
the trial of the accused, and, being sworn to answer ques-
tions as to their eligibility, accused stated he had no ques-
tions to ask them on that subject. They were then sworn
in to try the cause "in accordance with court regulations."
A motion for a jury on the trial was also made and denied.
The (459) amended complaint was then substituted in place
of the original, to which no objection was interposed, and
to it the accused pleaded "not guilty," and asked for the
names of the witnesses for the prosecution, which were
furnished to him. The witnesses were then sworn and
examined and they established beyond all possible doubt
the offence of murder charged against the accused, which
was committed under circumstances of great atrocity.

The court found him guilty of murder and he was sen-
tenced to suffer death in such manner and at such time and
place as the United States minister should direct. The con-
viction and sentence were concurred in by the four asso-
ciates and were approved by Mr. Bingham, the minister
of the United States in Japan. The minister transmitted
the record of the case to the Department of State for the
consideration of the President and for commutation of the
sentence or pardon of the prisoner, if deemed advisable.

46 I EXTRATERRITORIAL CASES.

The President subsequently directed the issue to the prisoner
of a pardon on condition that he be imprisoned at hard labor
for the term of his natural life in the penitentiary at
Albany and it was accepted by him on that condition. His
sentence was accordingly commuted and he was removed to
the Albany penitentiary.

The Circuit Court, after hearing argument of counsel and
full consideration of the subject, made an order on January
21, 1891, denying the motion of the prisoner for his dis-
charge, and remanding him to the penitentiary and the
custody of its superintendent (44 Fed. Rep., 185). From
that order the case was brought here on appeal.

Mr. George W. Kirchwey, for appellant :

I. The crime having been committed on board an American vessel,
altho such vessel was lying in the harbor of Kanagawa, Japan,
was not committed within the territorial jurisdiction of the Con-
sular General Court of Kanagawa, but within that of the United
States. It was cognizable only by the domestic tribunals of the
United States:

1. (460) The Consular General Court, being one of special and
limited jurisdiction, has no powers save such as are expressly con-
ferred by the treaty and statutes to which it owes its origin. These
expressly confine its jurisdiction to the territorial limits of Japan.

2. The domestic jurisdiction of the modern State extends to crime
committed upon private as well as public vessels of the State upon
the high seas. For the purposes of this jurisdiction, a foreign port
is regarded as being within the high seas, and the ship as a part of
the territory of the State to which she belongs.

3. The original and domestic jurisdiction of the Federal courts
being adequate to deal with cases of this kind, it will not be pre-
sumed that the Congress intended to set up a novel jurisdiction of
limited and inferior character, to supersede or compete with the
former.

4. The mode in which the jurisdiction of the United States in
such cases must be exercised is prescribed by statute. It is expressly
provided that all crimes committed on American vessels on the high
seas shall be tried within the United States.

II. If it be claimed that the offence in question was committed in
Japan, and not upon the high seas, the consular jurisdiction of the
United States is wholly excluded by the fact that the record does
not disclose facts conferring jurisdiction under the treaties and laws:

1. The treaties of the United States vdth Japan, and the laws
passed by Congress in pursuance thereof, expressly restrict th<>

IN RE ROSS, MAY 25, 1891. 47

jurisdiction of the consular courts to citizens of the United States.
It does not appear that Ross was a citizen of the United States.

2. The statutes ci-eating the consular courts, as well as the treaties
under which they are instituted, and from which they derive such
authority and jurisdiction as they possess, expressly subject that
jurisdiction to the laws of the United States.

3. The claim that the Constitution has no extraterritorial force
is disproved by the existence and operation of the consular court
itself.

(461) III. The refusal to allow the accused a trial by jury was
a fatal defect in the jurisdiction exercised by the court, and renders
its judgment absolutely void:

1. The jury contemplated by the Constitution (Art. III. § 2, subd.
3; amendments, Art. VI), and demanded by the appellant, is a com-
mon law jury of twelve men.

2. There appears to be nothing in the legislation of Congress
relating to the exercise of this consular jurisdiction to preclude
compliance with the constitutional requirement.

Mr. Assistant Attorney-General Parker, for appellee.
Mr. Justice Field, after stating the case, delivered the
opinion of the court:

The Circuit Court did not refuse to discharge the peti-
tioner upon any independent conclusion as to the validity
of the legislation of Congress establishing the consular tri-
bunal in Japan, and the trial of Americans for offenses
committed within the territory of that country, without the
indictment of a grand juiy, and without a trial by a petit
jury; but placed its decision upon the long and uniform
acquiescence by the executive, administrative, and legislative
departments of the government in the validity of the legis-
lation. Nor did the Circuit Court consider whether the
status of the petitioner as a citizen of the United States,
or as an American within the meaning of the treaty with
Japan, could be questioned, while he was a seaman of an
American ship, under the protection of the American flag,
but simply stated the view taken on that subject by the
Minister to Japan, the State Department, and the President.
Said the court:

"During the thirty years since the statutes conferring the judicial
powers on ministers and consuls, which have been referred to, were
enacted, that jurisdiction has been freely exercised. Citizens of the
United States have been tried for serious offences before these

48 I EXTRATERRITORIAL CASES.

officers, without preliminary indictment or a common law jury and
convicted and punished. These trials have been authorized by the
regulations, orders and decrees of ministers, and it (462) must be
presumed that the regulations, orders and decrees of ministers pi-e-
scribing the mode of trial have been transmitted to the Secretary
of the (sic) State, and by him been laid before Congress for revision,
as required by law. Unless the petitioner was not properly subject
to this jurisdiction because he was not a citizen of the United States,
his trial and sentence were in all respects modal (sic), as well as sub-
stantial, regular and valid under the laws of Congress, according to
the construction placed upon these statutes by the acquiescence of
the executive, administrative and legislative departments of the
government for this long period of time.""

Under these circumstances the Circuit Court was of
opinion that it ought not to adjudge that the sentence
imposed upon the petitioner was utterly unwarranted and
void, when the case was one in which his rights could be
adequately protected by this court, and when a decision by
the Circuit Court setting him at liberty, altho it might
be reversed, would be practically irrevocable.

The Circuit Court might have found an additional ground
for not calling in question the legislation of Congress, in
the uniform practice of civilized governments for centuries
to provide consular tribunals in other than Christian coun-
tries, or to invest their consuls with judicial authority,
which is the same thing, for the trial of their own subjects
or citizens for offenses committed in those countries, as
well as for the settlement of civil disputes between them;
and in the uniform recognition, down to the time of the
formation of our government, of the fact that the establish-
ment of such tribunals was among the most important
subjects for treaty stipulations. This recognition of their
importance has continued ever since, tho the powers of
those tribunals are now more carefully defined than for-
merly.^

The practice of European governments to send officers to
reside in foreign countries, authorized to exercise a limited
jurisdiction over vessels and seamen of their country, to
watch the interests of their countrymen and to assist in ad-

- In re Ross, 44 Fed., 185.

" Dainese v. Hale, ante, p. 32.

IN RE ROSS, MAY 25, 1891. 49

justing their disputes and protecting their commerce, goes
back to a very early period, even preceding what are termed
the Middle (463) Ages. During those ages these commercial
magistrates, generally designated as consuls, possessed
to some extent a representative character, sometimes
discharging judicial and diplomatic functions. In other
than Christian countries they were, by treaty stipulations,
usually clothed with authority to hear complaints against
their countrymen and to sit in judgment upon them when
charged with public offences. After the rise of Islamism,
and the spread of its followers over eastern Asia and other
countries bordering on the Mediterranean, the exercise of
this judicial authority became a matter of great concern.
The intense hostility of the people of Moslem faith to all
other sects, and particularly to Christians, affected all their
intercourse, and all proceedings had in their tribunals.
Even the rules of evidence adopted by them placed those of
different faith on unequal grounds in any controversy with
them. For this cause, and by reason of the barbarous and
cruel punishments inflicted in those countries, and the fre-
quent use of torture to enforce confession from parties
accused, it was a matter of deep interest to Christian govern-
ments to withdraw the trial of their subjects, when charged
with the commission of a public offence, from the arbitrary
and despotic action of the local officials. Treaties confer-
ring such jurisdiction upon these consuls were essential to
the peaceful residence of Christians within those countries
and the successful prosecution of commerce with their
people.

The treaty-making power vested in our government ex-
tends to all proper subjects of negotiation with foreign
governments. It can, equally with any of the former or
present governments of Europe, make treaties providing for
the exercise of judicial authority in other countries by its
officers appointed to reside therein.

We do not understand that any question is made by coun-
sel as to its power in this respect. His objection is to the
legislation by which such treaties are carried out, contend-
ing that, so far as crimes of a felonious character are con-

14008 O. W. 4

50 I EXTRATERRITORIAL CASES.

cerned, the same protection and guarantee against an undue
accusation or an unfair trial, secured by the Constitution
to citizens of the United States at home, should be enjoyed
by them abroad.

(464) In none of the laws which have been passed by
Congress to give effect to treaties of the kind has there
been any attempt to require indictment by a grand jury
before one can be called upon to answer for a public offence
of that grade committed in those countries, or to secure a
jury on the trial of the offence. Yet the laws on that
subject have been passed without objection to their con-
stitutionality. Indeed, objection on that ground was never
raised in any quarter, so far as we are informed, until a
recent period.

It is now, however, earnestly pressed by counsel for the
petitioner, but we do not think it tenable. By the Con-
stitution a government is ordained and established "for the
United States of America," and not for countries outside
of their limits. The guarantees it affords against accusa-
tion of capital or infamous crimes, except by indictment
or presentment by a grand jury, and for an impartial trial
by a jury when thus accused, apply only to citizens and
others within the United States, or who are brought there
for trial for alleged offences committed elsewhere, and not
to residents or temporary sojourners abroad.' The Con-
stitution can have no operation in another country.^ When
therefore, the representatives or officers of our government
are permitted to exercise authority of any kind in another
country, it must be on such conditions as the two countries
may agree, the laws of neither one being obligatory upon
the other. The deck of a private American vessel, it is true,
is considered for many purposes constructively as territory
of the United States, yet persons on board of such vessels,
whether officers, sailors, or passengers, cannot invoke the
protection of the provisions referred to until brought
within the actual territorial boundaries of the United

' Cook V. United States, 138 U. S., 157, 181.

'Compare Dorr v. U. S., 195 U. S., 138, 49 L. ed., 128; Downes
V. Bidwell, 182 U. S., 244, 45 L. ed., 1088. Ed.

IN RE ROSS, MAY 25, 1891. 51

States. And, besides, their enforcement abroad in numer-
ous places, where it would be highly important to have
consuls invested with judicial authority, would be imprac-
ticable from the impossibility of obtaining a competent
grand or petit jury. The requirement of such a body to
accuse and to try an offender would, in a majority of cases,
cause an abandonment of all prosecution. The framers of
the Constitution, who were fully (465) aware of the neces-
sity of having judicial authority exercised by our consuls
in non-Christian countries, if commercial intercourse was
to be had with their people, never could have supposed
that all the guarantees in the administration of the law
upon criminals at home were to be transferred to such
consular establishments, and applied before an American
who had committed a felony there could be accused and
tried. They must have' known that such a requirement
would defeat the main purpose of investing the consul with
judicial authority. While, therefore, in one aspect the
American accused of crime committed in those countries
is deprived of the guarantees of the Constitution against
unjust accusation and a partial trial, yet in another aspect
he is the gainer, in being withdrawn from the procedure of
their tribunals, often arbitrary and oppressive, and some-
times accompanied with extreme cruelty and torture.*^

We turn now to the treaties between Japan and the United
States. The treaty of June 17, 1857, executed by the consul
general of the United States and the governors of Simoda
is the one which first conceded to the American consul in
Japan authority to try Americans committing offences in
that country. Article IV of that treaty is as follows :

"Art. IV. Americans committing offences in Japan shall be tried
by the American consul general or consul and shall be punished
according to American laws. Japanese committing offences against

" Letter of Mr. Gushing to Mr. Calhoun of September 29, 1844,
accompanying President's message communicating abstract of treaty
with China, Senate Doc, 58, 28th Congress, 2d Sess. ; Letter on Judi-
cial Exterritorial Rights by Secretary Frelinghuysen to Chaii'man of
Senate Committee on Foreign Relations of April 29, 1882, Senate
Doc, 89, 47th Cong., 1st Sess.; Phillimore on Int. Law, vol. 2, part
7; Halleck on Int. Law, c. 41.

52 I EXTRATERRITORIAL CASES.

Americans shall be tried by the Japanese authorities and punished
according to Japanese laws." '

The treaty with Japan of July 29, 1858, in some partic-
ulars changes the phraseology of the concession of judicial
authority (466) to the American consul in Japan, but, as
we shall see subsequently, without revocation of the conces-
sion itself. Its sixth article is as follows:

"Art. VI. Americans committing offences against Japanese shall
be tried in American consular courts and when guilty shall be
punished according to American law. Japanese committing offences
against Americans shall be tried by the Japanese authorities and
punished according to Japanese law. The consular courts shall be
open to Japanese creditors to enable them to recover their just claims
against American citizens and the Japanese courts shall in like man-
ner be open to American citizens for the recovery of their just claims
against Japanese.'' "

As will be seen, the language of the fourth article of the
treaty of 1857 is that "Americans committing offences in
Japan shall be tried," etc. ; while the language of the sixth
article of the treaty of 1858 is that "Americans committing
offences against Japanese shall be tried," etc. Offences
committed in Japan and offences committed against Jap-
anese are not necessarily identical in meaning. The latter
standing by itself would require a more restricted construc-
tion. But the twelfth article of that treaty obviates that.
It is as follows :

"Art. XII. Such of the provisions of the treaty made by Com-
modore Perry and signed at Kanagawa on the 31st of March, 1854,
as conflict with the provisions of this treaty are hereby revoked;
and as all the provisions of a convention executed by the consul
general of the United States and the governors of Simoda, on the
17th of June, 1857, are incorporated in this treaty, that convention
is also revoked."

It will thus be perceived that the revocation of the treaty
of 1857 was made upon the assumption and declaration that
all its provisions were incorporated into the treaty of 1858.
The revocation must, therefore, be held to be limited to
those provisions and those only which are thus incorporated,
that treaty still remaining in force as to the unincorporated

11 U. S. Stats, at Large, 723.

12 U. S. Stats, at Large, 1056.

IN RE ROSS, MAY 25, 1891. 53

provisions. This has been the practical construction given
to the alleged revocation by the authorities of both coun-
tries— a (467) construction which, in view of the erroneous
statement as to the incorporation into the new treaty of all
the provisions of the former one, is reasonable and just.

Our government has always treated Article IV of the
treaty of 1857 as continuing in force, and it is published as
such in the United States Consular Regulations,^ issued in
1888. Its official interpretation is found in Article 71 of
those regulations, which declares that "consuls have exclu-
sive jurisdiction over crimes and offences committed by
citizens of the United States in Japan." Mr. Bingham, our
minister to that country for several years after the treaty
of 1858, always assumed the incorporation into that treaty
of all the provisions of the treaty of 1857, or that they
were saved by it. When the prisoner reached San Fran-
cisco, on his way from Japan to Albany, he applied to the
Circuit Court of the United States for a writ of habeas
corpus, and cited the sixth article of the treaty of 1858,
insisting that it only provided for the trial of Americans by
American consular courts in Japan for offences committed
against Japanese, and therefore he could not be held to
answer for the murder of the second officer of the American
ship Bullion, when in Japanese waters, because he was not a
Japanese subject. In a communication made under date of
June 8, 1881, by the minister to the Secretary of State,
reference is made to this position, and the following lan-
guage is used:

"Nothing, in my opinion, could more strongly testify to the utter
weakness of the claim made for Ross against the government than
this attempt to limit the jurisdiction of our consuls in Japan over
Americans guilty of crimes by them committed within this empire,
to such crimes only as they should commit upon the person of
Japanese subjects. According to this logic, Americans may in Japan
murder each other and the citizens or subjects of all lands save the
subjects of Japan with impunity — as it is admitted by this government
that it cannot try an American for any offence whatever — and it must
also be conceded that the tribunals of no other government than our
own can try Americans for crimes by them committed within this em-

° Appendix No. 1, p. 313.

54 I EXTRATERRITORIAL CASES.

pire. In giving my reasons to the department for sustaining the
jurisdiction of the United States in this case, and for approving
as I did the conviction of Ross, in which the consul general and
the four associates who sat with him had concurred, 1 cited Article
IV of our convention of 1857 with Japan, to wit: 'That Americans
committing offences in Japan shall be tried by the American consul
general or consul, and shall be punished according to American law.'
This provision of the convention of 1857 and all other provisions
thereof were saved and incorporated in our treaty of 1858 with
Japan, Article XII, [quoted above.] You will observe that Mr.
Townsend Harris was the consul general of the United States who
negotiated both of these treaties with Japan, and that the treaty
of 1858 was ratified April 12, 1860, and that thereafter, to wit,
June 22, 1860, Congress passed the act to carry into effect this treaty
vdth Japan, and provided that the minister and consuls of the United
States in Japan be 'fully empowered to arraign and try in the
manner (in said statute provided) all citizens of the United States
charged with offences against law committed' (by them in Japan) ;
[sec. 4084, Rev. Stat.] ; and also by section 4086 provided that the
jurisdiction in both civil and criminal matters in Japan shall 'in
all cases be exercised and enforced in conformity with the laws of
the United States, which so far as necessary to execute such treaty
are extended over all citizens of the United States therein, and over
all others to the extent the terms of the treaty justify or require.'
Here was the construction above stated by me asserted by the same
Senate which ratified the treaty, and by the same President who
approved both the treaty and the act of Congress. The President
and the department have always construed the treaty of 1858 as
carrying with it and incorporating therein the fourth article and
all other provisions of the convention of 1857."

The legislation of Congress to carry into effect the treaty
with Japan is found in the Revised Statutes, in sections
most of which apply equally to treaties with China, Siam,
Egypt and Madagascar (sees. 4083-4091). Confining our-
selves to the treaty with Japan only, we find that the
legislation secures a regular and fair trial to Americans
committing offences within that empire.

(469) It enacts that the minister and consuls of the United
States, appointed to reside there, shall, in addition to other
powers and duties imposed upon them respectively, be in-
vested with the judicial authority therein described, which
shall appertain to their respective offices and be a part of
the duties belonging thereto, so far as the same is allowed by
treaty; and empowers them to arraign and try, in the

IN RE ROSS, MAY 25, 1891. 55

manner therein provided, all citizens of the United States
charged with offences against law committed in that coun-
try, and to sentence such offenders as therein provided, and
to issue all suitable and necessary process to carry their
authority into execution. It declares that their jurisdiction
in both criminal and civil matters shall in all cases be
exercised and enforced in conformity with the laws of the
United States, which, so far as necessary to execute the
treaty and suitable to carry it into effect, are extended over
all citizens of the United States in Japan, and over all others
there to the extent that the terms of the treaty justify or
require. It also provides that where such laws are not
adapted to the object, or are deficient in the provisions
necessary to furnish suitable remedies, the common law and
the law of equity and admiralty shall be extended in like
manner over such citizens and others; and that if neither
the common law, nor the law of equity, or admiralty, nor
the statutes of the United States, furnish appropriate and
sufficient remedies, the minister shall, by decrees and reg-
ulations, which shall have the force of law, supply such
defects and deficiencies. Each of the consuls is authorized,
upon facts within his own knowledge, or which he has good
reason to believe true, or upon complaint made or informa-
tion filed in writing and authenticated in such way as shall
be prescribed by the minister, to issue his warrant for the
arrest of any citizen of the United States charged with
committing in the country an offence against law; and to
arraign and try any such offender; and to sentence him to
punishment in the manner therein prescribed.

The legislation also declares that insurrection or rebellion
against the government, with intent to subvert the same,
and murder, shall be punishable with death, but that no
person (470) shall be convicted thereof unless the consul
and his associates in the trial all concur in the opinion, and
the minister approves of the conviction. It also provides
that whenever in any case the consul is of opinion that, by
reason of the legal questions which may arise therein, assist-
ance will be useful to him, or that a severer punishment
than previously specified in certain cases will be required,

56 I EXTRATERRITORIAL CASES.

he shall summon to sit with him on the trial one or more
citizens of the United States, not exceeding four, and in
capital cases not less than four, who shall be taken by lot
from a list which has been previously submitted to and
approved by the minister, and shall be persons of good
repute and competent for the duty.

The jurisdiction of the consular tribunal, as is thus seen,
is to be exercised and enforced in accordance with the laws
of the United States ; and, of course, in pursuance of them
the accused will have an opportunity of examining the com-
plaint against him, or will be presented with a copy stating
the offence he has committed, will be entitled to be confronted
with the witnesses against him and to cross-examine them,
and to have the benefit of counsel ; and, indeed, will have the
benefit of all the provisions necessary to secure a fair trial
before the consul and his associates. The only complaint of
this legislation made by counsel is that, in directing the trial
to be had before the consul and associates summoned to sit
with him, it does not require a previous presentment or
indictment by a grand jury, and does not give to the accused
a petit jury. The want of such clauses, as affecting the
validity of the legislation, we have already considered. It
is not pretended that the prisoner did not have, in otner
respects, a fair trial in the consular court.

It is further objected to the proceedings in the consular
court that the offence with which the petitioner was charged,
having been committed on board of a vessel of the United
States in Japanese waters, was not triable before the con-
sular court; and that the petitioner, being a subject of Great
Britain, was not within the jurisdiction of that court.
These objections we will now proceed to consider.

The argument presented in support of the first of these
(471) positions is briefly this. Congress has provided for
the punishment of murder committed upon the high seas,
or any arm or bay of the sea within the admiralty and
maritime jurisdiction of the United States, and out of the
jurisdiction of any particular State; and has provided that
the trial of all offences committed upon the high seas, out
of the jurisdiction of any particular State, shall be in the

IN RE ROSS, MAY 25. 1891. 57

district where the offender is found or into which he is
first brought. The term "high seas" includes waters on the
sea coast without the boundaries of low- water mark; and
the waters of the port of Yokohama constitute, within the
meaning of the statute, high seas.

Therefore it is contended that, although the ship Bullion
was at the time lying in those waters, the offence for which
the appellant was tried and convicted was committed on the
high seas and within the jurisdiction of the domestic tri-
bunals of the United States, and is not punishable elsewhere.
In support of this position it is assumed that the jurisdic-
tion of the consular court is limited to offences committed
on land, within the territory of Japan, to the exclusion of
offences committed on waters within that territory.

There is, as it seems to us, an obvious answer to this
argument. The jurisdiction to try offences committed on
the high seas in the district where the offender may be
found, or into which he may be first brought, is not ex-
clusive of the jurisdiction of the consular tribunal to try
a similar offence when committed in a port of a foreign
country in which that tribunal is established, and the
offender is not taken to the United States, There is no
law of Congress compelling the master of a vessel to carry or
transport him to any home port when he can be turned over
to a consular court having jurisdiction of similar offences
committed in the foreign country,^- The provisions confer-
ring jurisdiction in capital cases upon the consuls in Japan,
when the offence is committed in that country, are embodied
in the Revised Statutes, with the provisions as to the
jurisdiction of domestic tribunals over such offences com-
mitted on the high seas ; and those statutes were reenacted
together, and, as reenacted, went into operation at the same
time. To both effect must (472) be given in proper cases,
where they are applicable. We do not adopt the limitation
stated by counsel to the jurisdiction of the consular tribunal,
that it extends only to offences committed on land. Neither
the treaty nor the Revised Statutes to carry them into effect
contain any such limitation. The latter speak of offences

" Op. Attys. Gen., VII, 722.

58 I EXTRATERRITORIAL CASES.

committed in the country of Japan — meaning within the ter-
ritorial jurisdiction of that country — which includes its
ports and na\igable waters as well as its lands.

The position that the petitioner, being a subject of Great
Britain, was not within the jurisdiction of the consular
court, is more plausible, but admits, we think, of a sufficient
answer. The national character of the petitioner, for all
the purposes of the consular jurisdiction, was determinable
by his enlistment as one of the crew of the American ship
Bullion. By such enlistment he becomes an American
seaman — one of an American crew on board of an American
vessel — and as such entitled to the protection and benefits of
all the laws passed by Congress on behalf of American sea-
men, and subject to all their obligations and liabilities.
Altho his relations to the British government are not so
changed that, after the expiration of his enlistment on
board of the American ship, that government may not en-
force his obligation of allegiance, and he on the other hand
may not be entitled to invoke its protection as a British
subject, that relation was changed during his service of
seaman on board of the American ship under his enlistment.
He could then insist upon treatment as an American seaman,
and invoke for his protection all the power of the United
States which could be called into exercise for the protection
of seamen who were native born. He owes for that time
to the country to which the ship on which he is serving
belongs, a temporary allegiance, and must be held to all
its responsibilities. The question has been treated more as
a political one for diplomatic adjustment, than as a legal
one to be determined by the judicial tribunals, and has been
the subject of correspondence between our government and
that of Great Britain.

The position taken by our government is expressed in a
(473) communication from the Secretary of State, to the
British government, under date of June 16, 1881. It was the
assertion of a principle which the Secretary insisted

"is in entire conformity with the principles of English law as applied
to a mercantile service almost identical with our own in its organiza-
tion and regulation. That principle is that, when a foreigner enters
the mercantile marine of any nation and becomes one of the crew

IN RE ROSS, MAY 25, 1891. 59

of a vessel having undoubtedly a national character, he assumes a
temporary allegiance to the flag under which he serves, and in
return for the protection afforded him becomes subject to the laws by
which that nation in the exercise of an unquestioned authority governs
its vessels and seamen. If, therefore," he continued, "the govern-
ment of the United States has by treaty stipulation with Japan
acquired the privilege of administering its own laws upon its orwn
vessels and in relation to its own seamen in Japanese territory,
then every American vessel and every seaman of its crew are
subject to the jurisdiction which by such treaty has been transferred
to the government of the United States.

"If Ross had been a passenger on board of the Bullion, or if,
residing in Yokohama, he had come on board temporarily and had
then committed the murder, the question of jurisdiction would have
been very different. But, as it was, he was part of the crew, a
duly enrolled seaman under American laws, enjoying the protection of
this government to such an extent that he could have been protected
from arrest by the British authorities; and his subjection to the laws
of the United States cannot be avoided just at the moment that it
suits his convenience to allege foreign citizenship. The law which
he violated was the law made by the United States for the govern-
ment of United States vessels; the person murdered was one of his
own superior officers whom he had bound himself to respect and
obey and it is difficult to see by what authority the British govern-
ment can assume the duty or claim the right to vindicate that law
or protect that officer.

"The mercantile service is certainly a national service, although
not quite in the sense in which that term would be applied to the
national navy. It is an organized service governed (474) by a special
and complex system of law, administered by national officers, such
as collectors, harbormasters, shipping masters and consuls, appointed
by national authority. This system of law attaches to the vessel and
crew when they leave a national port and accompanies them round
the globe, regulating their lives, protecting their persons and punish-
ing their offences. The sailor, like the soldier during his enlistment,
knows no other allegiance than to the country under whose flag he
serves. This law may be suspended while he is in the ports of a
foreign nation, but where such foreign nation grants to the country
which he serves the power to administer its own laws in such foreign
territory, then the law under which he enlisted again becomes
supreme."

The Secretary concluded his communication with the
following expression of the determination of our govern-
ment:

"So impressed is this government with the importance and pro-
priety of these views, that while it will receive with the most re-

60 I EXTRATERRITORIAL CASES.

spectful consideration the expression of any different conviction
which Her Britannic Majesty's government may entertain, it will
yet feel bound to instruct its consular and diplomatic officers in
the East, that in China and Japan the judicial authority of the
consuls of the United States will be considered as extending over
all persons duly shipped and enrolled upon the articles of any
merchant vessel of the United States, whatever be the nationality
of such person. And all offences which would be justiciable by
the consular courts of the United States, where the persons so
offending are native born or naturalized citizens of the United
States, employed in the merchant service thereof, are equally justici-
able by the same consular courts in the case of seamen of foreign
nationality."

The determination thus expressed was afterwards carried
out by incorporating the doctrine into the permanent reg-
ulations of the department for the guide of the consuls of
this country.^^

The views thus forcibly expressed present in our judg-
ment the true status of the prisoner while an enlisted
seaman on the American vessel, and give effect to the
purpose of the treaty (475) and the legislation of Congress.
The treaty uses the term "Americans" in speaking of those
who may be brought within the jurisdiction of the consular
court for offences committed in Japan. The statute de-
signates them as "citizens of the United States," and yet
extends the laws of the United States, so far as they may
be necessary to execute the treaty and are suitable to carry
the same into effect, not only over all citizens of the United
States in Japan, but also over "all. others to the extent that
the terms of the treaty justify or require."

Reading the treaty and statute together in view of the
purpose designed to be accomplished, we are satisfied that it
was intended by them to bring within our laws all who are
citizens: and also all who, tho not strictly citizens, are
by their service equally entitled to the care and protection
of the government. It is a canon of interpretation to so
construe a law or a treaty as to give effect to the object
designed, and for that purpose all of its provisions must be
examined in the light of attendant and surrounding cir-
cumstances. To some terms and expressions a literal

''126. Regulation.

IN RE ROSS, MAY 25, 1891. 61

meaning will be given, and to others a larger and more
extended one. The reports of adjudged cases and approved
legal treatises are full of illustrations of the application of
this rule. The inquiry in all such cases is as to what was
intended in the law by the legislature, and in the treaty
by the contracting parties.

In a case '- which was before this court at the last
term, it was held that the District of Columbia, as a political
community, is one of "the States of the Union," within the
meaning of that term as used in the consular convention of
1853 with France ; such construction being necessary to give
consistency to the provisions of the convention, and not
defeat the consideration given by France for her concession
of certain rights to citizens of the United States. And in
the present case, to carry out the intention of the treaty
and statute in question, they will be construed to apply to
all parties who are by public law, or the law of the country,
entitled to be treated for the time, from their employment
and service, as citizens. There are many adjudications to
the effect that such character will be ascribed to parties
and they (476) be held liable to all its consequences, and
entitled to all its benefits, on other grounds than birth or
naturalization.

A statute of Henry VIII enacted that if anybody should
rob or take "the goods of the king's subjects within this
realm," and be found guilty, the party robbed should have
restitution of the goods. Of this statute Sir Matthew Hale
said that "though it speaks of the king's subjects, it extends
to aliens robbed ; for though they are not the king's natural
born subjects, they are the king's subjects when in England,
by local allegiance." ^-^

In another case ^^ which is in point certain parties were
indicted in the Circuit Court of the United States for the
District of Massachusetts and convicted of murder on the
high seas. It appeared that a vessel, apparently Spanish,
was captured by privateers from Buenos Ayres, and a prize

" De Geofroy v. Riggs, 133 U. S., 258, 33 L. ed., 642.

'' 1 Hale's Pleas of the Crown, p. 542.

" United States v. Holmes, 5 Wheat, 412, 5 L. ed., 122.

62 I EXTRATERRITORIAL CASES.

crew was put on board, of whom the prisoners were a part.
One of them was a citizen of the United States and the
others were foreigners. The crime was committed by
drowning the person whose death was charged, by the
prisoners driving or throwing him overboard. On motion
for a new trial certain questions arose on which the judges
were divided in opinion. One of these was, whether it
made any difference as to the point of jurisdiction, whether
the prisoners or any of them were citizens of the United
States, or that the offence was committed, not on board of
any vessel, but on the high seas. The court said that the
question contained two propositions ; one as to the national
character of the offender and the person against whom the
offence was committed; and, second, as to the place where
it was committed. In respect to the first the court was of
the opinion that it made no difference whether the offender
was a citizen of the United States or not ; adding

"if it (the offence) be committed on board of a foreign vessel by
a citizen of the United States, or on board of a vessel of the United
States by a foreigner, the offender is to be considered, pro hcic vice,
and in respect to this subject, as belonging to the nation under whose
flag he sails." * * *

One James Anderson, an American citizen, was in-
dicted at the Central Criminal Court in England for
murder on board a vessel belonging to the port of
Yarmouth, in Nova Scotia; she was registered in London,
and was sailing under the British flag. At the time the
offence was committed the vessel was in the river Garonne,
within the boundaries of the French Empire, on her way
up to Bordeaux, which city is, by the course of the river,
about ninety miles from the open sea. The vessel had pro-
ceeded about half way up the river, and was at the time
of the offence about 300 yards from the nearest shore, the
river at that place being about half a mile wide. The tide
flows up to the place and beyond it. The prisoner was
convicted, and the case was reserved for the opinion of the
court. It was contended '^ on behalf of the prisoner that the
court had no jurisdiction in the case because he was an

" The Queen v. Anderson, L. R. 1 Crown Cases Reserved, 161.

IN RE ROSS, MAY 25, 1891. 63

American citizen and in a foreign country at the time the
offence was committed; and also that section 267 of the
Merchant Shipping Act, which it was said the Crown relied
upon at the trial, applied only to British seamen. Mr.
Justice Blackburn in regard to this last statement observed :

"The expression, 'British seamen,' may mean one who, whatever his
nationality, is serving- on board a British ship," and also that it
had been decided "that a ship, which bears a nation's flag, is to be
treated as a part of the territory of that nation. A ship is a kind
of floating island."

Counsel answered that if it floated into the territory of
another nation it would cease to be so, and the jurisdiction
of the flag would then be excluded, and that the man might
have been tried in France; to which Chief Justice Bovill
replied :

"Even if he might, why should not this country legislate to
regulate the conduct of those on board its own vessels, or as to have
concurrent jurisdiction?"

All the judges concurred in sustaining the conviction.
In giving his opinion the Chief Justice said:

"There is no doubt that the place where the off'ence was committed
was within the territory of France, and that the prisoner was,
therefore, subject to the laws of France, which that nation might
enforce if they thought fit; but at the same time he was also within
a British merchant vessel, on board that (478) vessel as a part of
the crew, and, as such, he must be taken to have been under the
protection of the British law, and also amenable to its provisions.
It is said that the prisoner was an Americaa citizen; but he had em-
barked by his own consent on board a British ship and was at the time
a portion of its crew. There are many observations to be found
in various writers to show that in some instances, tho subject
to American law as a citizen of America, and to the law of France
as being found within French territory, yet that he must also be
considered as being within British jurisdiction as forming a part
of the crew of a British vessel, upon the principle, that the juris-
diction of a country is preserved over its vessels, tho they may
be in ports or rivers belonging to another nation." '"

Mr. Justice Blackburn said:

"Where a nation allows a vessel to sail under her flag, and the
crew have the protection of that flag, common sense and justice
require that they should be punishable by the law of the flag." "

"P. 165. "P. 170.

g4 I EXTRATERRITORIAL CASES.

The views expressed by the Department of State, quoted
above, are in harmony with the doctrine uniformly asserted
by our government against the claim by England of a right
to take its countrymen from the deck of an American
merchant vessel and press them into its naval service. It
is a part of our history that the assertion of this claim, and
its enforcement in many instances, caused a degree of irrita-
tion among our people which no conduct of any other
country has ever produced. Its enforcement was deemed a
great indignity upon this country and a violation of our
right of sovereignty, our vessels being considered as parts
of our territory. It led to the War of 1812, and altho
that war closed without obtaining a relinquishment of the
claim, its further assertion was not attempted. At last, in
a communication by Mr. Webster, then Secretary of State,
to Lord Ashburton, the special British minister to this coun-
try, on the 8th of August, 1842, the claim was repudiated,
and the announcement made that it would no longer be
allowed by our government and must be abandoned. The
conclusion of Mr. Webster's communication bears upon the
question before us. After referring to the claim of Great
(479) Britain, and demonstrating the injustice of the posi-
tion and its violation of national rights, he said :

"In the early disputes between the two governments, on this so
long-contested topic, the distinguished person to whose hands were
first intrusted the seals of this department declared, that 'the simplest
rule will be, that the vessel being American shall be evidence that
the seamen on board are such.' Fifty years' experience, the utter
failure of many negotiations, and a careful reconsideration now
had of the whole subject at a moment when the passions are laid, and
no present interest or emergency exists to bias the judgment, have
convinced this government that this is not only the simplest and
best, but the only, rule which can be adopted and obsei-ved consistently
with the rights and honor of the United States and the security
of their citizens. That rule announces, therefore, what vdll hereafter
be the principle maintained by their government. In every regularly
documented American merchant vessel, the crew who navigate it
will find their protection in the flag which is over them." ^^

This rule, that the vessel being American is evidence that
the seamen on board are such, is now an established doctrine

Webster's Works, VI, 325.

IN RE ROSS, MAY 25, 1891. 65

of this country; and in support of it there is with the
American people no diversity of opinion and can be no
division of action.

We are satisfied that the true rule of construction in the
present case w^as adopted by the Department of State in the
correspondence with the English government, and that the
action of the consular tribunal in taking jurisdiction of the
prisoner Ross, tho an English subject, for the offence
committed, was authorized. While he was an enlisted sea-
man on the American vessel, which floated the American
flag, he was, within the meaning of the statute and the
treaty, an American, under the protection and subject to the
laws of the United States equally with the seaman who was
native born. As an American seaman he could have de-
manded a trial before the consular court as a matter of
right, and must therefore be held subject to it as a matter
of obligation.

We have not overlooked the objection repeatedly made and
(480) earnestly pressed by counsel, that the consular tri-
bunal is a court of limited jurisdiction. It is undoubtedly a
court of that character, limited by the treaty and the
statutes passed to carry it into effect, and its jurisdiction
cannot be extended beyond their legitimate meaning. But
their construction is not, therefore, to be so restricted as
to practically defeat the purposes to be accomplished by the
treaty, but rather so as to give it full operation, in order
that it may not be a vain and nugatory act.

It is true that the occasion for consular tribunals in Japan
may hereafter be less than at present, as every year that
country progresses in civilization and in the assimilation of
its system of judicial procedure to that of Christian coun-
tries, as well as in the improvement of its penal statutes;
but the system of consular tribunals which have a general
similarity in their main provisions, is of the highest im-
portance, and their establishment in other than Christian
countries, where our people may desire to go in pursuit of
commerce, will often be essential for the protection of their
persons and property.

14008 O. W. 5

66 I EXTRATERRITORIAL CASES.

We have not considered the objection to the discharge of
the prisoner on the ground that he accepted the conditional
pardon of the President. If his conviction and sentence
were void for v^ant of jurisdiction in the consular tribunal,
it may be doubtful whether he was estopped, by his ac-
ceptance of the pardon, from assailing their validity; but
into that inquiry we need not go, for the consular court
having had jurisdiction to try and sentence him, there can
be no question as to the binding force of the acceptance.

Order affirmed.

BEFORE THE JUDICIAL COMMITTEE OF THE PRIVY
COUNCIL.

[Decided Feb. 16, 1901, Appeal Cases, (1901) 373].

The Secretary of State for Foreign Affairs, Appellant,
V, Charlesworth, Pilling Co., et al., Respondents.

SYLLABUS.
(By the Editor.)

1. EXTRATERRITORIALITY: LEX LOCI REI SITAE. "The law of

England recognizes the principle that the incidents of land are
governed by the law of its site" and this is not affected by
extraterritoriality.

2. Id.: Id.: Expropriation: Compensation for Buildings erected by

the British Government on land expropriated from one of its
own subjects in Zanzibar is regulated by local Mohammedan
law.

3. Id. : Id. By said law, such buildings do not become the landowner's

property, tho he has the right of removal, and the value of
that right is his measure of compensation as regards buildings.

4. Id. : Id. : Id. : Land. But British extended legislation considered in

estimating compensation for the land.

5. Id.: Judicial Notice of the local law is taken by British extra-

terfitorial courts.

Sir Robert B. Finlay (Attorney-General), Sir Edward
Carson (Solicitor-General), Mayne and Sutton, for appel-
lant.

Haldane, Q. C, and Branson, for respondents.

Lord Hobhouse:

These appeals relate to the amount of compensation to be
paid for land in the Island of Mombasa, taken by the Govern-

SECRETARY V. CHARLESWORTH ET AL., FEB. 16, 1901. 67

ment under statutory powers. The suits were commenced
by two claims lodged with the Collector by the firms of
Charlesworth, Pilling & Co., and T. D. Charlesworth & Co.,
who were respectively owners of different plots of the land
so taken. The collector, Mr. Craufurd, who was also acting
on behalf of the Government, made awards which the plain-
tiffs did not accept, and which, therefore, were referred to
the consular court of Mombasa. The vice consul, Mr. Ga-
tor, awarded larger sums, which the defendant has not
disputed. But the plaintiffs were still dissatisfied, and they
appealed to the court for Zanzibar. The court again en-
hanced the amount of compensation, with the effect that
both parties are dissatisfied and both appeal from the
decrees. There are, therefore, four appeals, two original
and two cross-appeals, in the two suits. They have all
been consolidated, and have been argued as one case falling
under the same considerations, with the exception that one
important item of claim is peculiar to one plot belonging
to Charlesworth, Pilling & Co.

Mombasa is a small island adjacent to the coast of con-
tinental Africa, and it forms part of the mainland dominions
of the Sultan of Zanzibar. The authorities who have dealt
with this case are established and regulated by Her Ma-
jesty's Order in Council passed in 1884 and founded on a
previous treaty ; and by a subsequent treaty with the Sultan
of Zanzibar in the year 1886. There have been later trans-
actions between the Sultan and an English company and
the Queen which are referred to in the judgment of the
Vice-Consul and in the case lodged by the defendant, the
Secretary of State. They confer on the Queen's Govern-
ment extensive powers of administration during the con-
tinuance of existing agreements. But they are expressed
not to affect the Sultan's sovereignty, and for the purpose of
deciding questions of an international character in these
suits, they have not been discussed in the courts below, and
need not now be discussed.

The Order in Council dated October 17, 1884, is
founded on the usual form of recital that by treaty, grant,
usage, sufferance, and other lawful means. Her Majesty
the Queen has power and jurisdiction in relation to Her

68 I EXTRATERRITORIAL CASES.

Majesty's subjects and others within the dominions of His
Highness the Sultan of Zanzibar. The passages material
for the decision of the present questions will be found in
ss. 6, 7, and 8. Section 6 shows that the order applies
to British subjects in Zanzibar, to British ships in Zanzibar
waters, to Zanzibar subjects and foreigners in specified
cases, and to British-protected persons in so far as by treaty
or the other means mentioned Her Majesty has jurisdiction
in Zanzibar in relation to them.

"Sec. 7. All Her Majesty's jurisdiction exercisable in Zanzibar
under the Foreign Jurisdiction Acts for the hearing and determina-
tion of criminal and civil matters * * * shall be exercised under
the provisions of this order, so far as this order extends and applies.

"Sec. 8. (a) * * * Subject to the other provisions of the
order and to any treaties for the time being in force relating to
Zanzibar, Her Majesty's criminal and civil jurisdiction in Zanzibar
shall, so far as circumstances admit, be exercised on the principles
of, and in conformity with, the enactments for the time being ap-
plicable, as hereinafter mentioned, of the Governor-General of India
in Council, and of the Governor of Bombay in Council, * * * and
so far as such enactments * * * are inapplicable, shall, so far
as circumstances admit, be exercised under and in accordance w^ith
the common and statute law of England in force at the commence-
ment of this order.

" (^b) * * =f: declares certain Indian enactments not affecting
this question to be applicable to Zanzibar.

"(c) * * * Any other existing or future enactments of the
Governor-General of India in Council, or of the Governor of Bombay
in Council, shall also be applicable to Zanzibar, but shall not come
into operation until such times as may, in the case of any of such
enactments respectively, be fixed by the Secretary of State."

The subsequent treaty, concluded in 1886, has the fol-
lowing provisions:

"Art. V. Subjects of Her Britannic Majesty shall be permitted
throughout the dominions of His Highness the Sultan to acquire by
gift, purchase, intestate succession, oy under will, or in any other
legal manner, land, houses, and property of every description whether
movable or immovable, to possess the same, and freely to dispose
thereof by sale, barter, donation, will, or otherwise.

"Art. XVI. Subjects of Her Britannic Majesty shall, as regards
their person and property, enjoy within the dominions of His High-
ness the Sultan of Zanzibar the rights of exterritoriality.

"The authorities of His Highness the Sultan have no right to
interfere in disputes between subjects of Her Britannic Majesty

SECRETARY V. CHARLES WORTH ET AL., FEB. 16, 1901. 69

amongst themselves or between them and members of other Christian
nations. Such questions, whether of a civil or criminal nature, shall
be decided by the competent consular authorities. The trial and also
the punishment of all offenses and crimes of which British subjects
may be accused within the dominions of His Highness the Sultan,
also the hearing and settlement of all civil questions, claims, or dis-
putes in which they are the defendants, is expressly reserved to the
British consular authorities and Courts, and removed from the juris-
diction of His Highness the Sultan.

"Should disputes arise between a subject of His Highness the
Sultan or other non-Christian power not represented by Consuls at
Zanzibar, and a subject of Her Britannic Majesty, in which the British
subject is the plaintiff or the complainant, the matter shall be brought
before and decided by the highest authority of the Sultan, or some
person specially delegated by him for this purpose. The proceedings
and final decision in such a case shall not, however, be considered
legal unless notice has been given, and an opportunity afforded for
the British Consul or his substitute to attend at the hearing and
final decision.

"Art. XX. Should a British subject die within the dominions of
His Highness the Sultan of Zanzibar, or dying elsewhere leave prop-
erty therein movable or immovable, the British Consul shall be
authorized to collect, realize, and take possession of the estate of
the deceased to be disposed of according to law.

"Art. XXI. The houses, dwellings, warehouses, and other premises
of British subjects or of persons actually in their regular service
shall not be entered or searched under any pretext by the officials
of His Highness without the consent of the occupier, unless with
the cognizance and assistance of the British Consul or his substitute."

Article XXIII provides for the free exercise of religious
worship.

In the year 1895 the Government were planning railway
communication from some point in Mombasa into the Afri-
can mainland. In December, 1895, the plaintiffs entered
into agreements by which they acquired title to three of
the plots of land in question. The fourth plot was pur-
chased in April, 1896. At the close of the year 1895 the
engineers of the government entered on the land and began
to erect railway offices on one of the plots known in these
proceedings as Saidbin-Rashid. This was done without
any lawful authority; and it has given rise to questions of
some subtlety on which the Consular Court and the Zanzibar
Court have differed in opinion. Their Lordships will first
address themselves to these questions.

70 I EXTRATERRITORIAL CASES.

It was not until May 27, 1896, that the Indian Land
Acquisition Act of 1894 was brought into force in Zanzibar,
and not till November 2, 1896, that Mr. Craufurd, the
Consul-General, issued a notice under s. 6 of that Act
declaring that the land would be required for the railway,
and inviting claims for compensation. The day of that
declaration is the day on which the property is to be valued
for purposes of compensation.

The plaintiffs contend that on that day the buildings
erected by the Government were theirs, and they claimed be-
fore the Collector to be paid for them. They did not in the
first instance claim any specific sum for the buildings apart
from the land, but in the course of the hearing before the
Vice-Consul they put the amount at Rs. 168,000. They
contend that the rights of the parties are governed by
English law, according to which the buildings would become
attached to the land. The defendant contends that the
case is governed by Mohammedan law and that the land-
owner is not entitled to the buildings. The Vice-Consul
decided that Mohammedan law applied and compelled him
to disallow the plaintiffs' claim entirely. The Zanzibar Court
decided that English law applied and they awarded to the
plaintiffs Rs. 60,140, which was the cost of the buildings
to erect. The plaintiffs insist on the larger sum claimed
by them as being the actual value on November 2, 1896.

The first question is whether the dispute is to be governed
by the English or the Mohammedan rules applicable to un-
authorized buildings on land. The Indian enactments,
which the Order in Council makes applicable as far as
circumstances admit, either directly or by the order of the
Secretary of State, do not fit this case; and therefore Her
Majesty's jurisdiction is to be exercised under and in ac-
cordance with the law of England. But the law of England
recognizes the principle that the incidents of land are gov-
erned by the law of its site. Therefore, by the terms of
the order, if we look no further. Her Majesty would exer-
cise her Zanzibar jurisdiction on the principle that Zan-
zibar law, which is Mohammedan law, applies to this case.
And so far there is no difference of opinion in the court
below.

SECRETARY V. CHARLES WORTH ET AL., FEB. 16, 1901. 71

But then the order is made subject to treaties for the
time being in force, and Art. XVI of the treaty of 1886
confers on British subjects the rights of exterritoriality
as regards their persons and their property. The whole
controversy turns on the meaning of this one word "ex-
territoriality." The learned counsel who argued this case
could not find any decision on the construction of the term
in a treaty. Nor do the textbooks ^ tell us much more than
that the word denotes a fiction by which the house and
land occupied by a foreign sovereign or his ambassador was
treated in law as a part of his dominions; and that it is
a convenient word to denote any group of privileges belong-
ing to that class. The same writers warn us that fictions
and metaphors must not be pushed too far.

The Court for Zanzibar appears to have pushed the met-
aphor very far; holding that the term works a complete
separation of the British subject and his property from the
country in which they are. It seems to have adopted the
principle contended for in the Consular Court, and negatived
by the Vice-Consul, namely, that where there is a question
relating to land between two British subjects, the land must
be looked upon as actually a piece of British land for the
purpose of applying the law.

Looking at the latter part of Section XVI, and the suc-
ceeding sections of the treaty which have been quoted
above, we find that it actually specifies all the usual benefits
accorded by Mohammedan powers to a British subject. If
he is accused of crime or is defendant in a civil suit, his
case is decided by his ovm nation's Consul. If he is com-
plainant the Consul may intervene to protect his interest.'
His servants receive similar protection.^ In case of bank-
ruptcy his property is dealt with according to British law.^
On his death his property is to devolve according to British
law and to be administered by the Consul.^ His house is

'Their Lordships refer to Hall on International Law, p. 163; (4th
ed.), p. 173; Westlake on Private International Law, (3rd ed.), p.
226

^Art. XVI.

' Art. XVII.

*Art. XVIII.

= Art. XX.

72 I EXTRATERRITORIAL CASES.

not to be entered by the Zanzibar authorities against his
consent unless the Consul authorizes it.*' He is to enjoy
the free public exercise of his own form of religion.' Their
Lordships do not say that the list of specific instances,
tho very full, is exhaustive of the general term. Other
cases of the same kind would doubtless be included if such
there are. But it is reasonable to conclude that the things
specified show the nature of the immunities desired by and
accorded to the British subject — complete personal pro-
tection, assurance of satisfactory judicial tribunals, and
such enjoyment of his property for himself and for those
who claim under him as British law would afford him for
British property. It is going a long way beyond that,
and beyond the reason for these immunities, to say that the
moment a plot of land is purchased by an Englishman it
is stamped with the same character and is attended by the
same incidents that would belong to it if it were actually
transferred to England and surrounded by other English
land ; and to say that his neighbours, who may or may not be
British subjects, must have their rights and liabilities
governed by its fictitious and not by its actual situation.
Their Lordships hold that the grant of exterritoriality
does not involve any such conclusion, and that the Vice-
Consul is right in holding that in this case the local law
applies.

The next question is how the local law is to be ascertained.
Is it matter of evidence, or should the Consular Court take
judicial notice of it? The Vice-Consul held that he was
an English judge, that it was to him foreign law and must
be proved by evidence, tho he says it is an extreme
instance of that principle, especially as he is also one of
the Sultan's judges administering Mohammedan law. That
circumstance, however, should make no difference in the
principle, tho it enabled the Vice-Consul personally to
appreciate the evidence which he took. The Zanzibar
Court was not called upon to express any opinion on this
point because it held that the English law applies.

'Art. XXI. 'Art. XXIII.

SECRETARY V. CHARLESWORTH ET AL., FEB. 16, 190 1. 73

The situation is one of some complexity. The root of the
jurisdiction is the treaty grant or other matter by which
the Queen has power and jurisdiction in Zanzibar. She
thereby becomes an authority in the foreign territory of
Zanzibar, tho exercising her powers quite independently
of the will of the Sultan. On that state of things the
foreign jurisdiction acts supervene for the purpose of
binding all the subjects of the Queen ; and they enable
Her to order in what way Her authority in Zanzibar shall
be exercised. She orders that it shall be exercised in ac-
cordance partly with certain Anglo-Indian laws and partly
with English law. The English law again for certain pur-
poses, of which the present purpose is one, incorporates
the local law of Zanzibar. But thruout the matter
Zanzibar remains foreign territory, and the Queen and
Her officers are acting as Zanzibar authorities by virtue of
the power which she has acquired, and which is, within its
limits, a sovereign power. It results that a judge acting
within these limits is a Zanzibar judge and is bound to take
judicial notice of the Zanzibar law, whatever it may be,
applicable to the case before him.

The Vice-Consul, acting on his view, took evidence on
the Mohammedan law, which he found to be in favor of the
defendant's contention. He also stated that such was his
own opinion, which his experience as a Mohammedan judge
qualified him to form. Their Lordships are now called upon
to pronounce for themselves, and to apply, the Moham-
medan law which the plaintiffs' counsel have argued to be in
their favor. On this point they do not feel any difficulty.
They follow the law laid down in the Hedaya.^

"If a person usurp land and plant trees in it, or erect a building
upon it, he must in that case be directed to remove the trees,
and clear the land, and to restore it to the proprietor. If removal
* * * be injurious to the land, the proprietor of the land has
the option of paying to the proprietor of the trees or the building
a compensation equal to their value, and thus possessing himself
of them; because in this case there is an advantage to both and the
injury to both is obviated."

'Book 37, p. 539 (as translated by Hamilton).

74 I EXTRATERRITORIAL CASES.

The passage then goes on to show that the compensation
is the value which the trees or houses bear upon the pro-
prietor being directed to remove them, because their owner
is not at hberty to have them on the ground. That is con-
clusive against the plaintiffs' contention that the buildings
had become their property on November 2, 1896.

The plaintiffs' counsel then argued that at all events they
had on that day a right to call on the defendant to remove
the buildings, and that they were entitled to be paid for
their land with all rights attaching to it. It is not easy
to see what such a right would be worth to them; but it
is sufficient to say that no such claim has been made. Their
Lordships must hold that the Vice-Consul was right in
wholly disallowing the claim of the plaintiffs in respect of
buildings, and that the defendant's appeal on this point
must prevail.

There has been great difficulty in ascertaining the value
of the land taken. By the Land Acquisition Act, the Court
is directed " to take into consideration the market value of
the land at the date of the publication of the declaration,
and it is forbidden ^^ to take into consideration,

"Fifthly, any increase to the value of the land acquired likely to
accrue from the use to which it will be put when acquired. Sixthly,
any increase to the value of the other land of the person interested
likely to accrue from the use to which the land acquired will be put."

The plaintiffs claimed to be paid for the whole area as
for building ground at Rs. 2 per square yard=Rs. 11,132
per acre, yielding a total of (in round numbers) Rs. 700,000.
The Collector took the average of a number of purchases
effected by private contract between himself and various
owners. That amounted to Rs. 431 per acre, yielding a total
of about Rs. 32,000. The Vice-Consul rejected both these
principles. The claims of the plaintiffs he treated as utterly
extravagant. There is land available, and in demand for
building, in and adjoining to the town of Mombasa, and
again adjoining to the harbor of Kilindini, and sea frontage
is valuable. The plaintiffs' land is at considerable distances
from both these places and it has no sea frontage. There

• Sec. 23. " Sec. 24.

SECRETARY V. CHARLESWORTH ET AL., FEB. 16, 1901. 75

is no reason to suppose that it has any present value for
habitations. The most part of it is jungle, tho here
and there are some patches of cultivation. Both courts
are agreed that, independently of the railway, its value is
very small. The rather crude principle adopted by the Col-
lector has this defect, that it does not distinguish between
the various plots of land sold to him, which varied largely
in price from Rs. 750 an acre, and more, down to Rs. 64.
Moreover, several of the contracts were made with Arabs,
and the Vice-Consul thinks them of little value as evidence
of price because he did not find that the Arabs had taken
in the idea that the value of their land, which they could
actually obtain by bargaining, had been enhanced by the
railway scheme; so that the prices given to them would
unduly lower the average. As for Indians, he thinks that
they were fully alive to the advantage they had got and
w^ere quite capable of insisting upon it. * * * ^^

The Zanzibar Court treat the matter very differently.
After disposing of Mr. Craufurd's purchases and expressing
agreement with the learned judge below, that if the Govern-
ment had come promptly into the field they would have had
to pay very little, they continue as follows :

"The purchases made by Mr. Craufurd, which have been dealt with
already, not constituting in our opinion such sales as to give us a fair
and proper rate, we must rely on other facts, and the evidence pro-
duced at the trial in the Court below.

"When we consider the potential or prospective value of the land
taken, whether what was or is now mere agi-icultural land will prob-
ably in a few years' time become valuable, we must bear in mind the
fact that all this land is in close proximity and contiguous with the
terminus of a railway running many hundreds of miles into the heart
of the African Continent, for the construction of which 3,000,000^
has been voted by the Imperial Government. Altho the plaintiffs'
view of value in the future may be somewhat sanguine, yet we think
the learned judge was also somewhat pessimistic; a railway must
increase trade and traffic and the value of building sites near its
most important station, which undoubtedly is Mombasa."

The only ''other fact" mentioned besides the evidence of
specific purchases on which the Vice-Consul proceeded, and
on which their Lordships have already commented, is the

" A further portion of the discussion of the facts is omitted. Ed.

76 I EXTRATERRITORIAL CASES.

sale by one of the plaintiffs to the other at a fictitious price.
For after mentioning this and referring to the opinions of
two gentlemen who gave evidence, and of another gentle-
man who was not called, as to the prospects of the Protec-
torate, they inclined to the opinion that it is in a prosperous
condition, "and it is legitimate to infer that the railway
has been a most important factor in effecting it." They
then add:

"On therefore the potential values we feel bound to differ from
the learned judge, and for that reason to estimate more highly the
properties the subject of this appeal."

Their Lordships cannot read this part of the judgment
without seeing that the learned judges have admitted into
their minds those very considerations which the Act directs
them to exclude, namely, speculations on the value likely to
be conferred on the land taken for the railway by the con-
struction of the railway itself. To what extent their valua-
tion has been affected thereby does not appear, but it may
easily account, even if standing alone, for any amount of
increase over a market price which has been inferred from
an examination of actual transactions.

Their Lordships conclude that the valuation of the Vice-
Consul is more consonant to the evidence, and is based on
sounder principles than that of the Zanzibar Court. The
plaintiffs have profited largely by advances in the prosperity
of the Protectorate which have been caused by the advent
of the British Government and by the action it has taken.
If the officials had acted promptly the plaintiffs would have
got little if anything more than their purchase-money plus
the statutory 15 per cent. As it is they have, by the Vice-
Consul's valuation, got within twelve months: for one plot
twice what they paid for it, for another half as much again,
for a third fifteen times as much, and for the fourth six
times as much. The very large increase on those prices
which the Zanzibar Court has awarded is due either to
attending to evidence not properly applicable to the case,
or to general considerations which ought not to have been
allowed to enter into the mind at all. As regards evidence,
they have given misleading importance to sales of small

SECRETARY V. CHARLESWORTH ET AL., FEB. 16, 1901. 77

building plots within or close to Mombasa; and they have
treated the transfer from one set of plaintiffs to the other
as if it had some relation to market value. As regards
general considerations, possibly that of the behavior of the
Collector, and certainly the large importance attached to
"potential values," have been sources of error.

The Zanzibar Court made one decree on both appeals of
the plaintiffs. It should have dismissed both with costs.
Their Lordships will humbly advise His Majesty the King
to make an order to that effect on the defendant's appeals,
and to dismiss the plaintiffs' appeals. The plaintiffs must
pay to the defendant the costs of the consolidated appeals. ^-

*" In Macdonald v. Anderson (H. B. M. Supreme Court for China),
North China Herald, LXXII, 247 (Jan. 16, 1904), Grantham for the
plaintifl', Kent for the defendant, where the foregoing decision was
followed in the main, Bourne, J., for the court said:

This is a suit for recovery of land, heard at Tientsin on the 10th,
11th, 12th, 13th and 14th November, 1903. The plot of land in ques-
tion is situated within the Tientsin British Municipal Extension, and
was registered at His Britannic Majesty's Consulate at Tientsin on
18th August, 1896, as the property of the plaintiff, having been con-
veyed to him by Sun Fu-hsing under Chinese deed of perpetual lease
dated IGth July, 1896, and was registered at the same Consulate both
in 1887, and on the 13th December, 1897, as the property of the de-
fendant having been conveyed to his predecessor in title, Mr. James
Henderson, by Liu K'ai-t'ai under Chinese deed of perpetual lease
dated September, 1861, the plaintiff and defendant being British, and
Sun and Liu Chinese, subjects.

The Tientsin British Municipal Extension is, as I understand, an
area handed over by the Chinese Government to be municipally con-
trolled by the British local authorities. There was no demise of
the land, as there was by the Chinese to the British Government in
the case of the Tientsin British Concession. The native proprietors
may hold their land thereon, or sell to foreigners of any nationality,
as they please. In fact the conditions are much the same as those
under which the Shanghai Settlement is held. The sovereignty un-
doubtedly remains in the Emperor of China.

The registration of these Chinese deeds by the Consul appears to
have been no more in effect than the record for purposes of evidence
of the fact that a conveyance of certain land had been made on a
certain date to a British subject, and differs in principle from the
system of registration of title to land followed in His Britannic Ma-
jesty's Consulate-General at Shanghai, and since 1902, by direction
of his Majesty's Minister, also at Tientsin, by which the Chinese

78 I EXTRATERRITORIAL CASES.

local land authority, as agent of the Chinese Government, issues
a new title to the British holder in exchange for the native convey-
ance, which is thus virtually merged in a superior form of title
granted immediately to the British subject by the Chinese Govern-
ment. This latter system is the Registration of Title, the Registrar
by his act vesting the legal estate in the holder, who then appears to
have a title indefeasible except in cases of fraud or mistake. I con-
ceive that, if under this latter system of registration two deeds had
been issued for the same land, a bona fide holder of the prior deed
would get the land, the holder of a subsequent deed being left to his
right of action against a fraudulent seller or a negligent Chinese
land authority.^ But under the system of Registration of Conveyances
as practised at Tientsin when the deeds in question were registered,
I think the title cannot be held to be established by the Magistrate's
seal and the Consul's registration ; for there is often nothing to show
how the Magistrate's seal was obtained — as in the case of defendant's
deed of 1861. It was given in evidence that, at the time these deeds
were registered by the Consul, no reference was made to the magis-
trate when a conveyance bearing his seal was brought in for regis-
tration. I must therefore go behind the registration and decide the
question of title on the original Chinese deeds.

The plaintiflF's case was that on the 16th July, 1896, he obtained
on perpetual lease from Sun Fu-hsing land measuring 8.16 mow.
The Chinese deed was sealed by the Tientsin magistrate — the proper
land authority — who located the land on the Cemetery Road (now
called the Canton Road) , that road being its southern border, and the
eastern wall of the foreign cemetery, its western border. The deed
was then returned to the Consul by the Taotai, who said that Mac-
donald's title was good, and was registered by His Majesty's Consul
at Tientsin on the 8th August, 1896, as No. 35 of 1896. Sun Fu-hsing
had bought the land from Chang Han-chang by a deed dated April
25th, 1896; and some person of the surname Chang from Li Yu-te
by a deed dated April, 1879.

The page in the Land Register Recording No. 35 of 1896 is marked
in blue pencil "Cancelled. Belongs to W. C. C. Anderson," without
name or date. It was shown in evidence that this note of cancellation
was written in 1897 by order of His Majesty's Consul after a cor-
respondence with the Tientsin Taotai — the senior local Chinese civil
authority. I need scarcely say that this so-called cancellation is of
no effect. Since Magna Charta an Englishman can only be divested
of his property by the judgment of his peers or the law of the land.
Under the Orders-in-Council for the government of His Majesty's
subjects in China the Consul is judge of a provincial court; he can
therefore after the proper process by a judgment delivered in Court
divest a man of his property; but he is then the King's Judge ad-
ministering the law. In this case there was no suit instituted; he

* Hogg v, Chu Fu-fu, North-China Herald, 5th September, 1900.

MACDONALD V. ANDERSON, JAN. 16, 1904. 79

was acting in his capacity of Consul in virtue of the King's Commis-
sion, that is of the prerogative; and the King cannot in virtue of his
prerogative divest a subject of his rights.

Soon after the purchase, the plaintiff contracted -with his seller Sun
Fu-hsing for filling in the land. Sun Fu-hsing was thereupon arrested,
and his coolies prevented by the municipal police from going upon
the land. In December, 1896, the defendant began to fill in. On these
facts Mr. Grantham for the plaintiff contended that the plaintiff having
been disseised, he ought to be regarded as in legal possession, the
defendant being put to prove his title. But it will be seen from the
statement of defendant's case below that the defendant and his pre-
decessor in title, Mr. Henderson, exercised frequent acts of owner-
ship over this land from 1861 until 1895, that the plaintiff entered
upon the land during defendant's short absence in the summer of 1896,
that the entry was objected to as soon as noticed by defendant's agent,
Mr. Morling, and that from the autumn of 1896 until today the de-
fendant has again been in possession. If Macdonald had brought his
action as soon as he was dispossessed in 1896 it is possible that he
might have been regarded for the purposes of pleading as in legal
possession; but I think that today Mr. Anderson has legal possession,
and is entitled so to plead as he has done. I promised Mr. Grantham
to deal with this point altho it is not really material, for on the
production of plaintiff's registered title-deed the onus of showing that
he has a better title is thrown on the defendant.

The defendant's case is that the land in question was part of a
plot originally acquired in 1861 by Mr. James Henderson, who traded
as Kwanglung, from a prominent native named Liu K'ai-t'ai. The
deed was sealed by the Tientsin Magistrate. It was not sent to the
Consulate for registration until 1887, at the time of the transfer from
Henderson to Anderson described below. The conveyance from Hen-
derson to Anderson was again registered on 30th December, 1887.
The western portion of the lot was marked off as a foreign cemetery
in 1864, being paid for by public subscription, and was taken over
by the Municipal Council in 1876. Earth was taken from the eastern
portion — the land in question — to raise the level of the western por-
tion— the cemetery — by Henderson who managed the cemetery. Later
Henderson removed earth from this plot to raise the level of his lot
on the concession. In 1875 a Chinese theatrical troupe rented the
land from Henderson. In 1877 Henderson removed earth from this
plot to raise the level of the Cemetery Road which was bought and
made by him on behalf of the Council. In 1887 Mr. Henderson, in-
tending to go home, requested his son-in-law Mr. Cousins to sell this
land for him. The land was advertised for sale by auction in the
"Chinese Times," but was sold by Mr. Cousins by private treaty to
Mr. J. M. Dickinson for Tls. 330. It was then a deep pond. Mr.
Henderson refused to ratify this sale, when it was agreed that the land
should be put up to auction, and that Messrs. Henderson and Dickin-
son should divide any excess of price obtained over Tls. 330. The land

80 I EXTRATERRITORIAL CASES.

was then advertised again in the "Chinese Times" and "Shihpao," a
native paper, and bought by auction on 21st November, 1887, by Mr.
W. C. C. Anderson the defendant for Tls. 1,070. Henderson now con-
veyed the whole original lot including the foreign cemetery to Anderson
who reconveyed the western portion — the cemetery — to the Municipal
Council. In 1895 Mr. Anderson sent his employe Mr. Thomson to
survey the land. He then made a plan which is now put in, showing
that the dimensions of the land in question were 346 feet from East
to West along the cemetery road, 198 feet from North to South along
the cemetery eastei'n wall, and that nearly the whole area was .a
deep pond. On 31st December, 1895, His Britannic Majesty's Consul
claimed, on behalf of the Chinese Government from the defendant, land
tax on the land in question. In July, 1896, Mr. Anderson went to
Japan returning in September. During his absence Mr. Morling his
partner noticed that the pond was being filled in, and wrote to the
Consul protesting and Mr. Anderson did the same on his return.
The result was a correspondence lasting several months between the
Consul and the Taotai, which ended in the cancellation of the plain-
tiff's registration noticed above.

On these facts Mr. Kent, for the defendant, claimed that the Real
Property Limitation Act, 1874, applied, and the defendant and his
predecessor in title, Mr. Henderson, having been in possession of this
land for twelve years from January, 1879, when that statute came
into force, the plaintiff's right of action was barred.

Mr. Kent relied firstly on Hanson v. Watson ' in which Hannen
C. J. decided that Shanghai land held under a perpetual lease was
realty in English Law, and secondly on the principle that limitation
of actions belongs to procedure which is governed by the lex fori, that
is, here, English Law. In regard to the first point I hold that the
law of China ought to be applied to the facts of the case. The Court
administers the law of England " but what is the law of England in
regard to immovable property situated within the dominions of the
Emperor of China? Undoubtedly that rights in respect of such prop-
erty shall be governed by the lex sihis — that is, by the law of China.*

To apply the lav/ of English realty to land under the sovereignty
of China is to disregard the distinction between the real and personal
statutes — a fundamental principle of Private International Law which
can be traced back through the legal history of the western world
to the time of the Roman Republic, and which is as necessary today
as ever. It is true that our extraterritorial rights in China are not
rooted in the history of western law, as are those in the Levant,
for they are the creatures of the treaties with China, the earliest of

' "North China Daily Herald" 8th October, 1899.

•' 1865 Order-in-Council, art. 5.

'Story, Conflict of Laws, Ch. X; Heffter, Sec. 42, V; Dicey, Con-
flict of Laws, Rule 138; Wushishan Case, "North China Herald,"
XXIII, 90.

MACDONALD V. ANDERSON, JAN. 16, 1904. 81

which was ratified in 1842; but I think there is no doubt that the
Orders-in-Council, from which this Court derives its jurisdiction, wei'e
framed on the long-established lines of an extraterritorial personal
law. When article 5 of the Order-in-Council of 1865 provides that
His Majesty's jurisdiction shall, as far as circumstances admit, be
exercised upon the principles and in conformity with the Common
Law, the Rules of Equity, the Statute Law and other law for the
time being in force in and for England, it could not have been in-
tended that the Court was to apply to land in China the English
law in regard to land in England."^ A well known rule of construc-
tion requires that such an intention, being to change the common
law, should be explicitly stated." "It is in the last degree improbable
that the Legislature would overthrow fundamental principles
* * * without expressing its intention with irresistible clearness." '
The principle that the land and its incidents are subject to the
lex situs is not arbitrary but founded upon cogent considerations of
justice and convenience — one of the most obvious of which is that
contiguous plots of land should be subject to the same law in regard
to such incidents as prescription and servitudes. The land of British
subjects at Tientsin is often conterminous with that owned by French-
men, Germans and subjects of other Treaty Powers. If the home
land law of each proprietor is to apply to his land in Tientsin there
will be different periods of limitation, prescription for servitudes,
etc. according to the nationality of the ovmer for the time being. For
example the German period of limitation is 30 years with conditions,'
and the French also 30 years" while the English is 12 years; that is a
British subject could acquire a title to a part of his German neigh-
bor's land by 12 years' possession, while the German could only get
the same right by 30 years' possession of the British subject's land, or
the German might reduce the necessary period from 30 to 12 years by
transferring the legal estate to a British subject. Such injustice and
confusion must, in any case, throw doubt on a construction involving
them; but I can find no color for such a construction either in the
Foreign Jurisdiction Act or in the China Orders-in-Council. The
same reasoning excludes the law of the owner's domicile."' Moreover
supposing that we were in a circulus inextricabilis and that while the
English law applies the lex sittis, the lex sittis applies the English
law, that law cannot be the law of realty, and must, therefore, English
law being ex hypothesi to be applied, be the law of personalty. For
the distinction in English law between realty and personalty is not

'Cf. Westlake (3rd ed.), 226.
' Cf. Story, sec. 463.

"Maxwell, Interpretation of Statutes (3rd ed.), 113.
" German Civil Code, sec. 927.
"Civil Code (Napoleon), sec. 2262.

"Doe dem. Birtwhistle v. Vardell, 5 B. & C, p. 451, per Abbott,
C. J.

14008 O. W 6

82 I EXTRATERRITORIAL CASES.

founded on principle, but is historically derived from the old forms
of action." Realty included only interests in land for the enforce-
ment of which a real action was available. But a real action in
England was not open to a plaintiff in regard to any interest in land
but freehold, certainly not in regard to land under the sovereignty of
a Foreign Prince, a result utterly repugnant to feudal theory.'- There-
fore foreign land cannot be realty in English law, unless explicitly
made so by legislation. Supposing then, English law has to be ap-
plied, land in China would fall under the same law as English chattels
real, and for the same reason — that there would have been no real
action open to the plaintiff." When foreign lands — even foreign
possessions of the Crown — were intended to be held under an English
feudal tenure, this was explicitly stated; e. g. when, in 1669, Charles
II granted Bombay to the East India Company it was "to be held of
the King in Common soccage as of the Manor of East Greenwich."

Stress was laid at the Bar and in the judgment in Hanson v.
Watson on the fact that the tenure of the Chinese land in question
corresponded with some particular English tenure of land. But that
would seem to be immaterial. Will the courts in England apply the
English law of realty to possession or ownership of land in the United
States because the conditions of the tenure chance to agree with some
English mode of holding land? The question is precluded by the fact
that the land is foreign.

But I should have been bound by the decision in Hanson v. Watson
if that case had not been virtually overruled, as it seems to me, by
a subsequent case in the Privy Council." * * * It is true that the
court in Zanzibar had as its local law the Mohammedan Code, a certain
written law, while we in China are thrown back on a very few Avritten
rules — the Penal Code — the greater part of which cannot be applied
to a Christian community — upon local customs and upon the Judge's
conscience. But that is not a legal reason for applying the English
feudal tenures to land in China, altho it may be a moral one for
legislation. I am clear that I ought to apply Chinese law to the facts
of this case.

In regard to Mr. Kent's second contention that limitation of actions
belongs to procedure and is therefore governed by the lex fori, altho
Professor Dicey '' leans to the opinion that limitation of actions in
regard to immovables is governed by the lex fori, I think the reason-
ing of Mr. Foote '* read in connection with the facts of this case, is
conclusive that where the lex situs and lex fori are different, as they

"Goodere, Real Property (3rd. ed.), 6.
" Digby, Law of Real Property, 69.
"Williams, Real Property (16th ed.), 2.

" Secretary of State for Foreign Affairs v. Charlesworth, Pilling
& Co., ante, 66.

" Conflict of Laws, 525.

'" Private International Jurisprudence, 142-145 (3rd ed.) , 205-8. Ed.

MACDONALD V. ANDERSON, JAN. 16, 1904. g3

are here, limitation of actions must be governed by the former." I
therefore hold that the Real Property Limitation Act does not apply.

[Here follows a discussion of the title deeds and other questions

of fact.]

The plaintiff therefore fails to establish his title to this land. In
regard to costs, if I were satisfied that the plaintiff had thruout
acted with complete bona fides, I should make no order, as I think the
defendant was negligent in not keeping boundary stones, with the
Consular lot number cut on them, upon land of which he was not
in physical possession, and that such negligence might well have led
an innocent victim to fall into a net prepared by native conspirators.
But looking to the whole evidence I come to the conclusion that the
plaintiff deserves no unusual consideration. I think he must have
known thruout that his seller's title was a doubtful one. Costs
ought therefore to follow the event. Judgment for defendant with
taxed costs.

The law applicable to land in China owned by His Majesty's sub-
jects has been so long a moot point and the interests involved are
so large that I think I ought, now that the question has been raised
by this suit, to state my opinion of the effect of the judgment of the
Privy Council in the above case." That case seems by analogy to
establish two propositions: that Chinese law ought to be applied by
His Majesty's Courts in China to the incidents of land in China, and
that His Majesty's judges in China ought to take judicial notice of
Chinese law. In regard to the first, the greater pai't of Chinese writ-
ten law would be void and inoperative in an English Court as in-
consistent with the policy of English law.'° Further, Chinese land
law consists almost entirely of local custom: a great deal of English
law has been uniformly followed for half a century by His Majesty's
subjects in China, and has thus acquired the force of Chinese law,
e. g., testamentary disposition of land in China according to the
English form, and English forms in conveyancing. Where there is
no custom, the duty of the Chinese judge is to decide according to
good conscience. The British Court would, I conceive, in such cases
draw on the civil law as developed by modern continental codes and
text writers, including our own law of personal property, which comes
in some respects from the same source.^" If a land law so derived
is thought too uncertain to support the large foreign commercial in-
terests now centered in Shanghai and Tientsin, legislation alone can
supply the remedy. Rights of limitation and servitudes might be
governed by Land Regulations approved by the Treaty Powers, and
succession ab intestato by Order-in-Council. In regard to judicial

"Pitt V. Dacre, 1876, 3 Ch. D., 295; Westlake, sec. 171.
'' Secretary of State v. Charlesworth, Pilling & Co., ante, 66.
'"Dicey, pp. 29, 32; Fitzgerald, In re (1903), 1 Ch. 941.
'"Maine's Ancient Law, 283.

84 I EXTRATERRITORIAL CASES.

notice, there is in fact no Chinese written civil law. Judicial notice
might be taken of the Penal Code of the present dynasty," but
custom would have to be proved by evidence.

IN THE UNITED STATES COURT FOR CHINA.
United States v. C. A. Biddle.

[Criminal Cause No. 6; filed March 6, 1907.]

SYLLABUS.

(By the Court and the Editor.)

JURISPRUDENCE; The Term "Common Law" as used in the Act of
Congress of June 30, 1906, creating this court, interpreted to
mean those principles of the common law of England and those
stautes passed in aid thereof, including the law administered
in the equity, admiralty and ecclesiastical tribunals, which were
adapted to the situation and circumstances of the American
colonies at the date of the transfer of sovereignty, as modified,
applied, and developed by the decisions of the state and Federal
courts, and incorporated generally into statutes and constitutions.

Arthur Basset, Esq., U. S. District Attorney, for the pros-
ecution.
Francis Ellis, Esq., for defendant.

WiLFLEY, J.:

The information in this case charges C. A. Biddle with
the crime of obtaining money under false pretenses. A
demurrer to the information has been filed on the ground
that the facts alleged in the information do not constitute an
off'ense. The demurrer is based upon the contention that
obtaining money under false pretenses is a statutory and
not a common law offense, and, since there is no United
States statute on the subject, it is not a crime to obtain
money under false pretenses in China.

The law defining and providing for the punishment of
the crime of obtaining money under false pretenses is found
in [an English statute ^] which was enacted to supply the
defects of the common law relating to cheats. The Amer-

-' Ta Ching Lu Li (Staunton's Translation, London, 1810).
'30 Geo. II (1757), cap. 24, sec. 1.

UNITED STATES V. BIDDLE, MARCH 6, 1907. 85

ican statutes on obtaining money under false pretenses
follow it in substance. -

The question is raised by the demurrer : Is the above men-
tioned provision of the English law included in the "common
law" as the term is used in Section 4 of the Act of June 30,
1906, establishing this court? This calls for an interpre-
tation of the term as used in the statute.

Chief Justice Marshall, in a ruling made during the trial
of Aaron Burr, held that the term "common law" referred to

"those general principles and those general usages which are to be
found, not in the legislative acts of any particular state, but in that
generally recognized and long established law, which forms the sub-
stratum of the laws of every state." '^

This is an accurate general definition of the term common
law as it existed in the United States at the time the eminent
jurist gave this opinion; but in order to meet the practical
demands of the situation which now confronts the newly
established United States Court for China, it is necessary to
descend more into detail and to define the meaning of the
term with greater particularity.

When our ancestors came to the New World they claimed
the common law of England as their birthright and brought
it with them, except such parts as were judged inapplicable
to their new conditions. The common law of England is
the unwritten law as distinguished from the written or
statute law, and, in its ordinary acceptation, it includes
those general customs which pervade the whole realm, and
particular laws which have been, by degrees, added thereto.

The common law as introduced into the United States
embraces those general principles of the common law of
England and those English statutes passed in aid thereof,
which were applicable to the new conditions and circum-
stances existing in the American colonies at the date of the
change of sovereignty.^

- Bishop, New Criminal Law, II, pp. 236-7.

* Hinckley, American Consular Jurisdiction in the Orient, pp. 51-3.

^ Mr. Justice Story in Petterson v. Winn, 5 Pet. (U. S.), 242; see
also Commonwealth v. Knowlton, 2 Mass., 530. (And compare Forbes
V. Scannell, 13 Cal., 242, 285; Ware v. Wanless, 2 Wyoming, 144, 152.
Ed.)

gg I EXTRATERRITORIAL CASES.

This is also the view taken by Professor Bishop in his
recent work on Criminal Law, wherein he says:

"The common law of England, as modified by statutes, and includ-
ing the law as administered in the equity, admiralty and ecclesiastical
tribunals, travelled with the original colonists to this country; and
here so much of it as was adapted to their altered situation and circum-
stances, yet no more, became and thenceforward constituted, our
American common law. But when it was thus adopted by us, we
were not a nation. Not even the Revolution, but the Constitution
of the United States, gave us nationality. The Revolution and the
Constitution did not annihilate any law with which they were not in
conflict. The laws existing when each transpired remained such in
their several localities, and so they would have done if the colonies
and the states had been politically annihilated. . . . The result is
that the nation has no common law within the territorial limits of
the States, and all unwritten law within them is State law. Yet in
reason it is obvious that there are circumstances under which, not a
national common law, but the somewhat varying local laws of each
of the several States, constitute an unwritten rule for the tribunals
of the United States."'

In America the United States courts, when called upon
to interpret and apply the common law, are not confronted
with the difficulty which now confronts this court, because
there a United States court has only to administer the
common law of the state or states in which the pending case
originated.'' The common law of each state is usually well
defined. Here we have the situation of a United States
court sitting outside the territorial limits of the States and
outside the territorial limits of the Nation itself, which is
called upon to interpret and apply the common law. It
is readily seen that this gives rise to difficulties which
do not exist in the United States courts sitting in America.
The difficulty was recognized by the Honorable Caleb Cush-
ing, who, as Commissioner, negotiated the treaty of July 3,
1844, and who subsequently, as Attorney-General of the

^ Bishop, New Criminal Law, vol. 1, p. 104. See also Minor, In-
stitutes (1891), I, 34.

" Rather that "of the state in which it is sitting," for "there is no
common law of the United States" as distinguished from (that of)
the individual states," i. e., no "national customary law distinct from
the common law of England, as adopted by the several states each
for itself." Corpus Juris, XII, 196. Cf. U. S. Rev. Stats., sees. 858,
915, 916. Ed.

UNITED STATES V. BIDDLE, MARCH 6, 1907. 87

United States, delivered an opinion ^ upon the meaning of
the term "common law" as used in the Act of Congress of
August 11, 1844, which was passed pursuant to said treaty.
The term "common law" is used in the statute of August 11,
1848, in the same sense in which it is used in the statute
of June 30, 1906.

The brilliant discussion of the subject by Mr. Gushing
at once indicates the difficulties of, and the necessity
for, a definite and comprehensive interpretation of the
term as used in the law. For the reasons pointed out in the
foregoing discussions it is well-nigh impossible to include in
a single statement a definition of the common law which
will be comprehensive enough to cover the entire field. It
is believed, however, that the authorities warrant the
following: The term "common law" as used in the
statute is interpreted to mean those principles of the
common law of England and those statutes passed in aid
thereof, including the law administered in the equity, ad-
miralty, and ecclesiastical tribunals, which were adapted to
the situation and circumstances of the American colonies
at the date of the transfer of sovereignty, as modified,
applied and developed generally by the decisions of the
State courts and by the decisions of the United States courts,
and incorporated generally into the statutes and constitu-
tions of the States.

Holding, therefore, that above mentioned English,
statute is a part of the common law within the meaning of
the term as used in the Act establishing this court, the
demurrer is

OVERRULED.^

''Ante, p. 7 et seq.

" The sentence of conviction following this order was reversed by
the Court of Appeals (post, p. 128) but its general doctrine was left
undisturbed tho it has lost much of its importance thru the recognition
by that Court, as in force here, of certain special acts of Congress
embodying the modern criminal law of the United States. It is no
longer necessary for Americans in China to resort to the common law
or English statutes in order to ascertain either the definition or the
penalty of crimes. Ed.

88 I EXTRATERRITORIAL CASES.

IN THE UNITED STATES COURT FOR CHINA.

Axel Hillebrandt, Plaintiff v. S. Zimmerman & Co.,

Defendant.

[Civil Cause No. 4; filed March 6, 1907.]

SYLLABUS.
(By the Editor.)

1. CARRIERS. Delivery of cargo on the wharf in consignee's pres-

ence is sufficient.

2. SET-OFF. This Court will entertain in a set-off against a foreign

plaintiff to the extent only of his claim.

John Hays, Esq., for plaintiff.

Stirling Fessenden, Esq., for defendant.

WiLFLEY, J.:

This is a suit to recover Roubles 1,003.20, the value of
the shortage on a cargo of flour shipped by plaintiff from
Shanghai to Vladivostok by defendants' steamship Han-
namet. Defendants deny liability and file a set-off of
Mex. $393.

The testimony disclosed that during March 1906 plaintiff
shipped 6,900 sacks of flour from Shanghai to Vladivostok
by defendants' steamer Hannamet. Plaintiff went to
Vladivostok on the Hannamet for the purpose of looking
after and disposing of his cargo. Mr. M. A. Katz also
went to Vladivostok on the Hannamet as a representative
of Zimmerman & Co. 6,900 sacks of flour were loaded on
board the Hannamet at Woosung about the 1st of March,
1906. The contract of shipment was an ordinary bill of
lading in which A. Hillebrandt was consignee. The Han-
namet arrived at Vladivostok on or about the tenth of the
month. The vessel remained in the harbor for two days
and then went alongside the wharf and discharged her
cargo in about seven days. Mr. Hillebrandt proceeded to
sell his cargo immediately and before he left Vladivostok,
which was about March 17, he had sold his entire cargo,
and delivered from the wharf all except a small portion of
it. He testified on this point:

HILLEBRANDT V. ZIMMERMAN & CO., MAR. 6, 1907. 89

"I had disposed of all the flour before it was discharged. I took
delivery of it as fast as it was discharged. I saw my cargo out on
the jetty. It was four or five days before I received the last of it.
I left for Shanghai the same day on which the last of the cargo was
discharged."

The testimony is conclusive that all of the ship's cargo
was discharged on the wharf at Vladivostok while Hil-
lebrandt was there. No evidence was produced to show
what length of time intervened between Mr. Hillebrandt's
departure from Vladivostok and the date on which the
parties to whom he had sold the last of his flour applied
for the same at the wharf. Mr. Katz testified that part
of plaintifl"s cargo remained on the wharf for a period of
two weeks, during which time he took all the precautions
possible under the circumstances to protect it from theft
and exposure. The testimony shows that there is no cus-
tom in Vladivostok under which merchants are allowed a
certain time in which to remove their goods from the
wharves. The rule is that they must take charge of their
cargo at once. When Mr. Hillebrandt arrived in Shanghai
he received notice from Vladivostok of a shortage of 456
bags. He returned to Vladivostok about a month later
and verified the shortage.

The foregoing facts give rise to two questions as follows :
(1) Was the discharge of plaintiff's cargo on the wharf at
Vladivostok a delivery within the meaning of the law re-
lating to the duties and liabilities of carriers at sea? (2)
If this question be answered in the negative, are defendants
liable for the shortage disclosed by the evidence in this case ?

It becomes necessary to determine what constitutes a
complete delivery. The authorities discuss this subject un-
der two heads: viz., the duties of a common carrier in
those cases (a) where the consignee is not present, and (b)
where he is present at the point of destination to take over
the goods upon arrival. In this instance it is not necessary
to consider the first class of cases because the plaintiff, Mr.
Hillebrandt, went along with the cargo on the Hannamet for
the purpose of taking charge and disposing of it at Vladi-
vostok. The question of what constitutes delivery in the

90 I EXTRATERRITORIAL CASES.

second set of cases, namely, when the consignee has due
notice and is present at the point of destination when the
goods arrive, was settled by the Supreme Court of the United
States in a case ' where the facts were as follows : The
barque Ta7igier arrived in the port of Boston on April 8
with a cargo of cotton. She commenced the discharge of
her cargo on Monday and on the same day the master gave
notice to the consignees of his readiness to deliver the goods.
On Wednesday all of the cotton which had been unloaded
on Monday and Tuesday was removed except 325 bales,
which remained on the wharf over night. The unloading
was completed on Thursday at 5 p. m. About 3 p. m. of
the next day the cotton remaining on the wharf was con-
sumed or damaged by an accidental fire. The contract
of the carrier was to deliver in like good order and condition
at the port of Boston unto Goddard & Pritchard. The Court
there decided that by the commercial and maritime law
it is a settled rule that a carrier by water shall carry from
port to port and from wharf to wharf and is not bound
to deliver at a warehouse or business place of the consignee.
It also held that goods delivered at a proper wharf at a
proper time, with notice to consignee, is a good delivery.

"Where the proper consignee of the goods is present, accepts the
consignment and pays the freight and the goods are accordingly un-
loaded with reasonable opportunity for him to remove them, custody
is transferred from the carrier and responsibility devolves upon the
consignee to secure them from the weather and depredation, and
otherwise make disposition of them." -

The text writers take a similar view of the subject.

"The rule long since sanctioned in Great Britain, where goods are
brought by water, is that delivery on the usual wharf will discharge
the carrier, and such also is the American rule. This is particularly
true of transportation between foreign ports which for centuries has
involved the use of Bills of Lading. The usage at the present day
generally requires the consignee to take off his merchandise in lighters
from the vessel's side on its arrival in port; otherwise the carrier
shall land the goods on the wharf and finally shall warehouse them

'Richardson v. Goddard, 23 How., 28, 16 L. ed., 412.
" Goodwin v. Baltimore & Ohio Railroad, 50 N. Y., 154; paraphrased
in Schouler, Bailments and Carriers, sec. 504.

HILLEBRANDT V. ZIMMERMAN & CO., MAR. 6, 1907. 91

if they are not called for in a reasonable time. Personal delivery
dispenses with 'personal notice' and affording 'reasonable opportunity*
to remove the goods." ^

All of the elements of delivery as defined by the foregoing
authorities are present in this case, and we hold that the
cargo in question was legally delivered to plaintiff at Vlad-
ivostok when it was discharged upon the wharves in the
presence of Mr. Hillebrandt himself and that the custody
thereof and liability therefor then passed from defendant
to plaintiff.

In view of this holding it is not necessary to consider
the second proposition above mentioned as to the duties and
liabilities of a carrier after the cargo had been discharged
upon the wharf had there not been a personal delivery to
the consignee.

This leaves to be disposed of the matter of the set-off
contained in defendant's answer. A set-off is a counter-
demand, generally of a liquidated debt, growing out of a
separate transaction, for which an action might be
maintained by the defendant against the plaintiff to recover
a judgment in his own favor. Such is the character of the
cross action in this case. This Court has no jurisdiction
to give a judgment in such a case, because it is without
power to enforce a judgment against anyone other than
an American citizen. It has been held by Attorney-General
Speed * that in cases between a foreign plaintiff and an
American defendant, where the foreigner establishes his
claim against the American, the latter may plead a counter-
demand in an amount equal to or less than the amount
of the claim of the foreigner and the Court will allow the
same. But in no instance will the Court give affirmative
judgment against a foreign litigant in any amount. * * *

Petition of plaintiff is denied and defendant's plea of
set-off is dismissed without prejudice. Plaintiff will pay
the costs.

^ Schouler, Bailments and Carriers, sec. 511. See also Sullivan v.

Thompson, 99 Mass., 259.
' Ante, p. 27.

92 I EXTRATERRITORIAL CASES.

IN THE UNITED STATES COURT FOR CHINA.

IN RE YOUNG JOHN ALLEN'S WILL.

[Special Proceeding No. 41; filed August 16, 1907.]

SYLLABUS.

(By the Court and the Editor.)

1. BOMICIL ' under American law is that place which a person has

freely chosen for his abode and from which he has no present
intention of removing.

2. EXTRATERRITORIALITY is that condition by which a state, usually

by virtue of a treaty, extends its jurisdiction beyond its own
boundaries into the territory of another state and exercises the
same over its nationals who, for the time being, may be sojourn-
ing within the territory of the other state.

3. Id.: Domicil. There is nothing in the theory or practical operation

of the law of extraterritoriality repugnant to, or irreconcilable
with, the application of the American law of domicil by American
Courts to American citizens residing in a country with which
the United States has treaties of extraterritoriality.

4. Id. : Id. Dr. Young J. Allen, having resided in Shanghai for a

period of forty-seven years prior to his death, and having ex-
pressed the intention of making Shanghai his pennanent home,
thereby acquired an extraterritorial domicil in China.

5. Id. : Lex Domicillil The Court in administering his estate will

be guided by the law in force in China, the place of his domicil
at the date of his death, and not by the statutes of Georgia, the
place of his domicil of origin.

6. Id. : Id.: Holographic Wills are valid in this jurisdiction.

Edgar Pierce Allen, Esq., for the proponent.

WILFLEY, J.:

In view of the well established principle that the personal
property of a deceased person must be administered ac-
cording to the law of his domicil, it becomes necessary at
the outset to determine where the testator in the will here
presented for probate was domiciled at the date of his death.

The facts in this case are as follows : Dr. Young J. Allen
was born in the year 1836 in the State of Georgia. In
1860 he moved to China, where he lived continuously for a
period of forty-seven years. He died in Shanghai on May

'Spelling preferred by Anderson's Law Die. (1893), Standard
Dictionary (1907), Bouvier's (1914), and adopted by Prof. J. B. Moore.
See his American Notes to Dicey, Conflict of Laws (1896), pp. 727
et seq.

IN RE ALLEN'S WILL, AUG. 16, 1907. 93

30, 1907. China was the chosen field of his activities and
the instruction of its people in the principles of Christian
civilization was his life work. Here his family was reared
and now lives. Here his estate, consisting solely of per-
sonal property, was accumulated, and it was his oft ex-
pressed intention to make China his permanent home. The
will which his legal representatives now present for probate
is wholly in his own handwriting and was duly attested by
two witnesses, neither of whom, however, is within the
jurisdiction of the Court. This being the case, the instru-
ment before the Court must be regarded as an holographic
will, which under the common law, now in force in China,
is valid - tho the Court is not informed that such a will
is recognized by the law of Georgia.

These facts present for consideration one of the most
complex and important subjects connected with the opera-
tion of the law of extraterritoriality. Succinctly stated, the
legal question here involved is : Can an American citizen
acquire what may be termed an extraterritorial domicil
in China? Can he have a domicil out of the United. States
in which he is nevertheless governed by the laws of the
United States or must he retain that of the state where he
was domiciled before settling in China? In investigating
this subject it will be necessary to have a clear conception
first, of the American law of domicil and second, of the true
meaning of extraterritoriality.

II.

That a person must always have a domicil somewhere,
that no person may have more than one domicil at a time,
that every natural person free and sui juris may change his
domicil at pleasure, and that civil status, with its attendant
rights and disabilities, depends, not upon nationality but
upon domicil, are propositions upon which the authorities
are universally agreed. While domicil has been defined by
law writers in a variety of ways, yet there are two elements
which are found in all definitions, namely, residence and
a7iimus manendi, or intention of continued residence. In

"^ In re Lucy Lucker's Will, post, p. 626. Ed.

94 I EXTRATERRITORIAL CASES.

recent years, however, there has been a tendency on the
part of the courts to modify this definition by substituting
for the animus manendi, or intention of residing per-
manently in a certain place, the absence of the animus re-
vertendi, or the intention of returning to the place of former
residence.
Vattel ^ defines domicil as

"an habitation fixed in some place with the intention of remaining
there always."

Savigny * says,

"That place is to be regarded as a man's domicil which he has freely
chosen as his permanent abode (and thus for the center at once of
his legal relations and his business) ."

According to Judge Story,^

"That place is properly the domicil of a person in which his hab-
itation is fixed without any present intention of removing there-
from."

Phillimore '^ defines it as

"Residence at a particular place accompanied with (positive or
presumptive proof of) an intention to remain there for an unlimited
time."

The definition of Vice-Chancellor Kindersley,' while lack-
ing in precision, is perhaps more comprehensive than any
of the foregoing. It is as follows :

"That place is properly the domicil of a person in which he has
voluntarily fixed the habitation of himself and his family, not for a
mere special and temporary purpose, but with a present intention
of making it his permanent home, unless and until something (which
is unexpected or uncertain) shall occur to induce him to adopt some
other permanent home." '

Mr. Webster, while Secretary of State, had occasion to
consider the law of domicil, and expressed his views on the
subject as follows:

"Law of Nations Liv. i. c. XIX, s. 214.
■•Conflict of Laws (Guthrie's trans., 2nd ed.), p. 97.
'Conflict of Laws (7th ed.), s. 43.
'Int. Law (3d ed.) IV, s. 49.
Mn Lard v. Colvin, 28 L. J. (Ch.), 366 (1859). Ed.

IN RE ALLEN'S WILL, AUG. 16, 1907. 95

"The general rule of the public law is, that every person of full
age has a right to change his domicil; and it follows, that when he
removes to another place, with an intention to make that place his
permanent residence, or his residence for an indefinite period, it
becomes instantly his place of domicil; and this is so, notwithstanding
he may entertain a floating intention of returning to his original
residence or citizenship at some future period. * * * ijj questions
on this subject, the chief point to be considered is the animus ma-
nendi, or intention of continued residence; and this must be decided
by reasonable rules and the general principles of evidence. If it
sufficiently appear that the intention of removing was to make a
permanent settlement, or a settlement for an indefinite time, the right
of domicil is acquired by a residence even of a few days." *

The feature here prominently brought out, that domicil
will not be defeated by a mere "floating intention" to re-
move from the locality at some future date, has been adopted
by American courts in recent years.'-'

In view of the foregoing we feel warranted in holding
that under American law, a person's domicil is that place
which he has freely chosen for his abode and from ivhich
he has no present i7iteyition of removing.

III.

It now becomes necessary to ascertain if there be any
reason why the foregoing principles may not be applied to
American citizens residing in a country with which the
United States has a treaty of extraterritoriality. This
leads to an investigation of the real meaning of extra-
territoriality. It is well-nigh impossible to give an exact
definition of the term, yet its practical application is not
difficult of comprehension. Broadly speaking, extraterri-
toriality ^° is a term used to describe the act by which a
state extends its jurisdiction beyond its own boundaries
into the territory of another state, and exercises the same
over its nationals who, for the time being, may be sojourning
in the territory of the other state. It is usually based upon

* Thrasher's Case, Moore, International Law Digest, III, 818.
^ Oilman v. Oilman, 52 Maine, 165, 83 Am. Dec, 502.
^^ For other definitions, see the article "Extraterritoriality," in
Corpus Juris. Ed.

96 I EXTRATERRITORIAL CASES.

treaty but the rights and privileges arising therefrom are
frequently amplified by usage and sufferance. Extraterri-
toriality is put in operation mainly by western states in
oriental countries where it signifies principally the exemp-
tion of the nationals of said western states from local juris-
diction and a corresponding exercise of jurisdiction over
them by their own national authorities.

For the purpose of ascertaining the practical operation
of the law of extraterritoriality, we shall now trace in
brief outline the history of its application in China by two
prominent western nations, the United States and Great
Britain, under their treaties of extraterritoriality with that
country. It will be observed that the treaties under which
these two nations operate in China are substantially the
same. Great Britain, however, has exercised its rights
and privileges under the treaties and developed its law of
extraterritoriality in China to a far greater extent than has
the government of the United States.

The first treaty of extraterritoriality between the United
States and China was entered into on July 3, 1844, and a
second treaty was concluded on June 18, 1858. Articles
XXV and XXVII, respectively, of said treaties provide:

"All questions in regard to rights, whether of property or of
person, arising between citizens of the United States in China, shall
be subject to the jurisdiction and regulated by the authorities of their
own Government."

Congress in 1848 and in 1860 enacted statutes for the
purpose of carrying into full force and effect the provisions
of these treaties, and to that end extended certain laws
to China and created Consular Courts, vesting them with
authority to apply and execute said laws. The body of laws
which Congress has extended to Americans in China consists
of those statutes of the United States suitable to carry the
treaties into effect, the common law, including the law of
equity and admiralty, and certain regulations of the
American Minister to China promulgated to supply the
deficiencies in these laws.^^

" U. S. Revised Statutes, sec. 4086.

IN RE ALLEN'S WILL, AUG. 16, 1907. 97

On June 30, 1906, Congress passed the act creating this
Court and vested it substantially with the jurisdiction
formerly exercised by the Consular Courts. ^^

Great Britain, on the other hand, by successive foreign
jurisdiction acts from 1843 to 1890, by numerous Orders
in Council, by regulations promulgated by the British
Minister at Peking, and by the decisions of the British
Supreme Court at Shanghai, has amply provided for the
protection and government of its subjects in China, and
has probably carried the law of extraterritoriality in China
to a higher degree of development than any other power.
The extent to which Great Britain has exercised its power
under the treaties will appear from an examination of what
is known as the Foreign Jurisdiction Act of 1890, and an
examination of the jurisdiction possessed by the British
Supreme Court at Shanghai. Section 1 of said act,
provides :

"It is and shall be lawful for Her Majesty the Queen to hold,
exercise and enjoy any jurisdiction which Her Majesty now has, or
may at any time hereafter have, within a foreign country in the same
and as ample a manner as if Her Majesty had acquired that jurisdic-
tion by the cession or conquest of territory."

Section 8 of the act provides :

"Any act or thing done in pursuance of any jurisdiction of Her
Majesty in a foreign country shall be as valid as if it had been done
according to the local law then in fo^'ce in that country."

And Paragraph 2 of Section 5 provides :

"Thereupon those enactments (described in the first schedule of
this Act) shall, to the extent of that jurisdiction, operate as if that
country were a British possession and as if Her Majesty in Council
were the Legislature of that possession." "

The British Supreme Court in China, which was es-
tablished in 1866, is vested with jurisdiction to execute the
laws which Great Britain has extended to its subjects in
China. It is in fact a British Court, and in addition to
ordinary civil jurisdiction, exercises it in cases involving

" For a complete statement of the history of the American law
of extraterritoriality in China, see Hinckley, American Consular Juris-
diction in the Orient.

" 53 and 54 Victoria, Chapter 37.

14008 O. W. 7

98 I EXTRATERRITORIAL CASES.

admiralty, bankruptcy and lunacy, and, in addition to the
ordinary criminal jurisdiction, in some special statutory
offenses such as offenses against the Patents and Trade-
marks Acts.^^ To such an extent has the British jurisdic-
tion in China been developed that there is almost no legisla-
tive or judicial phase of the law in force in England which,
if necessary in China, has not its counterpart here. On
the other hand "common law" and "equity" form the vague
and indefinite description of the main law in force in respect
to Americans in China. ^^

From the foregoing it will be seen that while the Emperor
of China exercises nominal sovereignty over all Chinese
territory including that occupied by the nationals of the
United States and Great Britain, yet the jurisdiction of
these two countries over their own citizens who reside in
China is, for all practical purposes, as full and complete as
if China were in fact territory belonging to these nations.

IV.

We come now to the consideration of the main question
in this case, namely, whether there be anything in the
practical operation of the law of extraterritoriality fatal
to the application of the principles of the American law
of domicil to Americans residing in China. So far as we
are able to ascertain, this question has not been passed
upon by the courts of the United States, nor has it been
made the subject of discussion by the executive branch of
the government. It has, however, received the careful
consideration of the courts of last resort of Great Britain
with the unlooked for result that there is now no such thing
known to the British law of extraterritoriality as an Anglo-
Chinese domicil.

The leading case "'' on this subject originated in Shang-
hai, and the facts were as follows: After some previous
changes of residence, Tootal, a subject of Great Britain, in
1862 came to reside in Shanghai, and with the exception of

" Piggott, Exterritoriality, 40.

'' This view was changed by the announcement of the doctrine of
Biddle v. U. S., post, p. 120. Ed.

''Re Tootal's Trusts, L. R. 23 C. D., 532.

IN RE ALLEN'S WILL, AUG. 16, 1907. 99

some short visits to England for health and business, he
continued to reside at Shanghai until 1878, the date of his
death. It was admitted that some years before his death
he had determined to reside permanently at Shanghai, had
relinquished all intention of ever returning to England
and had expressed this intention on a number of oc-
casions. In his will he described himself as a resident of
Shanghai in the Empire of China. The decision of the
Court was written by Mr. Justice Chitty, who held that
British subjects in eastern countries in all cases retain
their domicil in that portion of the British Empire
in which they were domiciled previously to taking up
their abode in an eastern state. The decision is based
on the proposition that residence in a "territory" is an es-
sential part of the legal idea of domicil, and holds that

"there is no authority that an individual can become domiciled as a
member of a community which is not a community possessing the
supreme or sovereign te}~ritorial power."

The doctrine thus laid down was followed by the Court
in a later case,^' where the decision was written by Lord
Watson.

"Their Lordships," he says, "are satisfied that there is neither
principle nor authority for holdinr- that there is such a thing as
domicil arising from society and not from connexion with a locality.
In re Tootal's Trusts is an authority strictly in point, and their Lord-
ships entirely concur in the reasons by which Mr. Justice Chitty sup-
ported his decision in that case." ''"

While these decisions fix the law of Great Britain on this
subject for the present, the doctrine here laid down has
not commended itself to the judgment of the leading British
commentators on the subject of extraterritoriality. Sir
Francis Piggott, Chief Justice of Hongkong, in a work
which has just come from the press, expresses the opinion

"that when the question is again raised it will be found that the
principles established by the most recent cases necessitate a recon-
sideration of the law laid down on the subject by Mr. Justice Chitty."

The learned justice then enters upon an exhaustive exam-

" Abd-ul-Messih v. Farra, 13 App. Cases, 431.
''See also Maltass v. Maltass, 1 Rob. Ecc, 80; The Indian Chief,
3 Rob. Adm., 29.

100 I EXTRATERRITORIAL CASES.

ination of the principle upon which the foregoing decisions
are based, and discusses the same as follows :

"At the time when many of the definitions were framed, the law
applicable to exterritoriality was little known, and in some cases
was not present in the mind of the judges who framed them. Local-
ity and territory were obviously the terms which would be used;
the community among which a person settled being as obviously
identified with the locality. But it attached undue importance to
the word to insist that because 'locality' is used in the definitions
in cases where there could be no question as to its fitness, therefore
it excluded the idea of 'relationship to a community' in the first
case that came up for argument, in which the point was whether
'relationship to a community' is or is not involved in domicil * * =!•
The community referred to is of course the community which in-
habits a country, or a definite locality; in other words, a community
which has laws and customs of its own, which the Government of
the locality imposes on all members of it; but the question is wheth-
er the reason of the rule, the whole principle on which it is based,
do not render it as applicable to an exterritorial community as to
a territorial one. On the hypothesis the circumstances may be the
same in the one as in the other. A man may set up his home in a
Treaty Port, he may have banished forever the idea of returning
to his native country; the animus manendi may be clear, without
shadow of doubt; on the hypothesis, too, there is a body of law
regulating the community. Why is it impossible then for the ordi-
nary principles of the law to be applied, and for the personal rela-
tions of the permanent members of the community to come under
that law permanently as the law of the domicil of their choice: of
those who are born members of the community as the law of the
domicil of their origin? * * * Linking these two propositions
together, it is suggested that the inevitable result is a modification of
Lord Watson's interpretation of the law of domicil referred to above
on the following lines: The law ivhich regulates a man's personal
status must be that of the governing power in whose dominions
his intention is permanently to reside, or must be so recognized and
established by that governing power as to be in fact the law of the
land." '"

The subject has been carefully gone into by Hall,-" the
celebrated authority on International Law, who likewise
takes issue with the Court in the Tootal's Trusts case, and
expresses his view on the subject as follows :

"It is perhaps to be regretted that a change in the law is not made
which a short Order in Council could easily efi'ect. Anglo-Oriental

'" Piggott, Exterritoriality, 228, 230, 232-3.

" Foreign Jurisdiction of the British Crown, pp. 184-6.

IN RE ALLEN'S WILL, AUG. 16, 1907. 101

domicil has its reasonable, it may almost be said, its natural place.
Conflicts between the differing laws of England, of Scotland, of the
various self-governing colonies, are inevitable within British jurisdic-
tion in the East; but it is unnecessary to multiply the points of
collision. So long as persons have not identified themselves with
the life of a new community, they must keep each his own law;
but as soon as they have shown their wish and intention to cut
themselves adrift from the association of birth, they prove their
indifference to the personal law attendant on their domicil of origin;
there is, therefore, no reason why simplicity and unity of law should
not be gained for British subjects by attributing community in the
laws of England to all of European blood. There is also every reason
for avoiding very grave difficulties of another kind, which are opened
thru invariable preservation of the domicil of origin. English fam-
ilies, even in the present day, often remain thru more than
one generation in Oriental countries as their permanent place of
abode; formerly the history of persons whose domicil might become
a matter of importance was generally known sufficiently well; many
are now of obscure antecedents and of an origin uncertain among
the numerous places from which British subjects can derive. As
no domicil can be acquired in an Anglo-Oriental community, it be-
comes every year more probable that cases will occur in which the
determination of the domicil of a father, perhaps of a grandfather,
may become necessary, and in which it may be equally impracticable
to impute an English domicil or to attribute any other with fair
probability. It would be a great advantage that in such cases there
should be a fixed rule which should correspond with the obvious
facts, and that the courts, instead of searching with infinite trouble
and expense for an ancestral domicil, should be enabled to find that
a domicil had been acquired in the Eastern country which carried
with it the application of English law; — that, in other words, re-
.sidence in China under English law, with the anhmis manendi, should
imply domicil in China under the condition of the applicability of
the special law of the English community established there, as that law
is defined by Order in Council. Theoretically the conception of such
a domicil is unobjectionable if once the mind is cleared of the notion,
at present dominant, that domicil is the creature of place and inten-
tion alone. In Europe it is so, because residence in a place implies
subjection to the common territorial law, and to no other; in the
East it is not necessarily so, because residence there implies subjec-
tion to the law of one or other of several different communities, the
personal laws of which receive equal recognition from the territorial
sovereign power. Association with place is necessary to domicil;
but it is not always the sole determinant factor. In any case, even
if the conception of domicil here suggested be anomalous, the conven-
ience of giving effect to it is large enough to excuse a certain
sacrifice of logical principle."

102 I EXTRATERRITORIAL CASES.

After a careful consideration of the principles of law on
this subject as well as the practical demands of the situation,
this Court is inclined to give greater weight to the foregoing
argument of Mr. Hall than to the line of reasoning adopted
by Mr. Justice Chitty in the Tootal's Trusts case. We can
see no good reason for holding that a citizen of the United
States cannot be domiciled in China. Mr. Justice Chitty's
decision destroys in their application to China all the def-
initions of domicil contained in the books. It ignores
both of the essential elements of residence and intention.
The British Courts were correct when they stated that there
was no authority for holding that an individual could not
become domiciled as a member of a community which was
not one possessing the supreme or sovereign territorial
power. This fact, however, is without significance when
it is noted that the courts were considering the first case
of this character which had ever been presented for judicial
determination. At the time the Tootal's Trusts case came
up for consideration, the British law of extraterritoriality
was not so well developed as it is now, and the subsequent
trend of events has given it a difl'erent meaning from what
it had at the time the decision was rendered. It was quite
natural for the courts thirty years ago to announce that
the immiscible character of the two races and the radical
difference between the religions, customs, habits and laws
of peoples of the two countries raised a strong presumption
against the British subject becoming domiciled in China,
At that time it was doubtless the fixed purpose of the ma-
jority of those who came to China to sojourn here only a few
years and then return to the country from which they came.
This is not the case at present. Many families dwell here
now with the fixed purpose of making China their perma-
nent home. There are abundant examples of such families
and they are likely to become more common in the future.
By reason of this fact the number of heirs and distributees
of foreign citizens decedent in China who live in China in
proportion to those who dwell in the countries from which
said foreigners came, is rapidly growing larger, thus neces-

IN RE ALLEN'S WILL, AUG. 16, 1907. 103

sitating the adoption of a rule which will meet the practical
demands of the situation.

From the standpoint of expediency, Hall has very clearly
pointed out that conflicts between the laws of England,
Scotland and various self-governing colonies are inevitable
within British jurisdiction in the East. This proposition
is too clear to require the support of argument. If this
Court should adopt the rule laid down by the British Courts,
such conflicts would be perhaps more numerous and more
pronounced in the administration of American law in China
than in administration here of the law of Great Britain.
The adoption of such a rule would put this Court to the
necessity in the matter of probating wills of applying the
laws of forty-six ^^ different commonwealths, to say nothing
of the laws of our territories and insular possessions. This
would be practically impossible. Furthermore, the adop-
tion of the British rule would require this Court not only to
hold that Dr. Allen, who had resided in China for forty-seven
years and who had expressed his intention of residing here
permanently, was domiciled in Georgia, but also to hold that
his children and grandchildren, some of whom have never
been in Georgia, and who never expect to reside there, are
nevertheless domiciled in that State. This proposition is too
extravagant to be maintained. It requires a greater stretch
of the imagination and the adoption of a greater fiction of
law to hold that a person can be domiciled in a country where
he does not reside and has no intention of residing at any
future time than to hold that a citizen of a foreign State can
acquire an extraterritorial domicil in a community which
is not the community possessing the sovereign territorial
power. Every consideration of reason and convenience
demands that the American law of domicil be applied by
American Courts in China.

We hold therefore:

1. That there is nothing in the theory or practical op-
eration of the law of extraterritoriality inconsistent with
or repugnant to the application of the American law of

Now forty-eight, besides the District of Columbia. Ed.

104 I EXTRATERRITORIAL CASES.

domicil to American citizens residing in countries with
which the United States has treaties of extraterritoriality.
2. That Dr. Young J. Allen, having lived in China for
a period of forty-seven years and having expressed his
intention to live here permanently, thereby acquired an
exti^aterritorial domicil in China; consequently this Court
in the administration of his estate will be guided by the
law which Congress has extended to Americans in China,
which is the common law."

"- Mr. Huberich ^ thinks that "The result of the case is correct. But
the reasons supporting it are not very clearly stated; there is a
tendency to confuse the question as to the amount of evidence neces-
sary to overcome the presumption against the acquisition of a domicil
in China with the question of legal possibility of acquiring such a
domicil under any circumstances."

Nevertheless, the "result" has been accepted not only in the United
States " but also in the very jurisdiction (England) where the contrary
doctrine arose. For In re Tootal's Trusts, 23 Ch. Div., 532, and its
corresponding dicta have been overruled and the doctrine here an-
nounced by Judge Wilfley is now that of the House of Lords, the
highest judicial tribunal of the British Empire.

Casdagli v. Casdagli, A. C. (1919), 145, was a proceeding by a
wife for dissolution of marriage, originally brought in the High
Court in England, against the husband residing, then for twenty-
one years, in Egypt, intending to remain and claiming domicil there.
Counsel for the wife contended that, such domicil could not be ac-
quired and, on the authority of the cases above referred to, both the
High Court and the Court of Appeal ^ sustained this contention. But
the House of Lords reversed both Courts and dismissed the petition
with costs.

The Lord Chancellor (Finlay) cited Mather v. Cunningham (post,
p. 136). In re Allen's Will {ante, p. 92) and said:

"What the petitioners contended for in Tootal's Trusts was what
is there called an Anglo-Chinese domicil. Some criticism has been
bestowed upon this and analogous expressions, but it appears to
me that the expression Anglo-Chinese domicil is apt to denote com-
pendiously a domicil in China acquired by a British subject and carry-
ing with it the privileges conferred by treaty upon British subjects
there residing. These privileges appear to have been analogous to

^ Domicil of Privileged Foreigners, Law Quarterly Review, XXIV,
447. See also Dickinson, The Domicil of Persons Residing Abroad
Under Consular Jurisdiction, Mich. Law Rev., XVII, 437.

•Mather v. Cunningham (post), p. 136.

=* Casdagli v. Casdagli, 87 L. J. P., 73.

CASDAGLI V. CASDAGLI, 1919. 105

those enjoyed by British subjects residing in Egypt. At p. 536
Chitty, J., says that the exception from the jurisdiction of His
Majesty's Supreme Court at Shanghai as a matrimonial Court in
regard to dissolution, nullity, or jactitation of marriage, apparently
left Englishmen subject to the jurisdiction of the Court for matri-
monial causes in England in respect of such matters. This state-
ment requires qualification. The absence of provision for divorce
in Shanghai cannot of itself confer jurisdiction upon the English
Court; it depends upon the question whether the domicil has re-
mained English. If the English domicil has been replaced by an
Anglo-Chinese one the jurisdiction of the English Courts w^ould be
gone. * * *

The decision is, of course, not binding upon this House, and it is,
in my opinion, erroneous. There has been no such general acqui-
escence in the correctness of the decision in In re Tootal's Trusts,
and change of position in reliance upon that decision, as to render
it improper that this House should act upon its own view of the
law. * * *

The fact that inconvenience has resulted from a particular deci-
sion would of course be no reason for disturbing it, if sound in law.
But, as in my opinion Tootal's case and the dicta approving it are
erroneous, I think that the British community in Egypt should be
relieved from the inconvenience which Cator, P. says * has been
thereby caused."

Lord Dunedin said :

"As to authority, the matter is reduced to two cases. In re Tootal's
Trusts and Abd-ul-Messih.'' Neither of those cases is technically
binding on your Lordships, but I will for the moment treat them
as if they were so. I do not set forth the facts, as that has already
been done by the noble Lords who preceded me. In re Tootal's Trusts
can be no authority for the proposition contended for because all
that it actually decided was that mere enrolment as a member of a
British community in China, to which community certain privileges
were by treaty conceded, did not per se create for the person so
enrolled an Anglo-Chinese domicil. The fact that in that case Tootal
had no Chinese domicil was based on admission, and therefore pos-
sibility had not to be considered. Apart from the actual decision
I cannot say that I approve of the remarks of Chitty, J. Nor am I
able to follow the noble Viscount in thinking that all that he meant
was that a Chinese domicil was such an improbable domicil for an
Englishman to adopt that he would not easily be brought to think
that it had been adopted. I think the American Court in Mather's
case were right upon the facts to refuse to follow what would
seemingly have been Chitty, J.'s opinion. Further, I am quite clear
that the head note in Abd-ul-Messih goes too for in saying 'Tootal's
Trusts approved.' The approval given by the Judicial Committee
was, as I read the judgment, limited to the proposition^which indeed
I think no one now disputes — that mere membership of a privileged
community will not per se constitute domicil."

Lord Philirnore said:

"My Lords, the jurisdiction of the High Court of Justice in its
matrimonial division is founded upon domicil. The domicil must be
in England.

'In The Dcrfflinger (No. 1), 3 Brit. & Col. Prize Cas., 389 (1916),
= 13 App. Cas., 431.

106 I EXTRATERRITORIAL CASES.

In this case the husband who has been sued by his wife had, no
doubt, his domicil of orij^in in England and the burden lies upon
him, as he disputes the jurisdiction, to show that he has acquired
another domicil. But Horridge, J. has found, and it is not disputed
that he has rightly found, that if it be possible for the husband to
have changed his domicil of origin into an Egyptian domicil he has
done so. I think also that if Horridge, /. had not felt himself
fettered by authority he would have held that there was no impos-
sibility in the husband's acquiring an Egyptian domicil."

After referring to the contrary authorities he continued :

"These decisions, or at any rate the principles supposed to be
extracted from them, have been commented upon and dissented from
in an important decision of the Supreme Court of Maine: Mather
V. Cunningham. It is true that in two cases in the Egyptian Prize
Court the learned Judges have given their adhesion to them. But,
on the other hand, in The Etimaeus " the President expressly reserved
his opinion upon the principle supposed to be extracted from In re
Tootal's Trusts. * * *

Under the capitulations and the subsequent treaties and arrange-
ments with Turkey, with Egypt under the Khedive as still a part
of the Ottoman dominions, with Egypt now as a protected State,
and under the analogous arrangements which exist in China and
at one time existed in Japan and Zanzibar, Europeans of many
nations, including the British, have peculiar privileges and some im-
munities, the measure of which is to be found in the expressed
terms of the several grants. In so far as it may be said that the
effect of them is to constitute separate little national communities,
this is immaterial on the question of domicil.

The result is that while there is authority for saying that there
is improbability in the change of domicil to an Oriental country,
even a so highly civilized one as Egypt, there is no legal impossibility."

Previous to the decision in the principal case Judge Wilfley had
held ' that the United States Court for China had inherited jurisdic-
tion in probate and administration cases from the consular courts
and that

"since neither the general laws of the United States nor the laws
relating in particular to extraterritorial jurisdiction contain specific
pi'ovisions on the administration of estates, and since the Minister
has issued no regulations on the subject, it followed that the only
source from which jurisdiction might be drawn was the common law."

The doctrine subsequently announced by the Court of Appeals *
provided other "specific provisions on the administration of estates"
which have since been applied by the United States Court.

Moreover the reservation by the United States in the original
treaty with China of "all questions in regard to rights, whether of
person or property" * and the grant to the consuls of "all the judicial
authority necessary to execute the provisions of said treaty * * ♦

'1 Brit. & Col. Prize Cas., 615.

'/« re John Pratt Roberts' Will, May 15, 1907.

" Biddle v. United States, post, p. 120.

" Treaty of 1844, art. XXI, Malloy, Treaties, I, 202.

BROOKS V. IRVINE ET AL., AUG. 21, 1907. 107

in regard to civil rights" ^^ would seem to include probate jurisdiction
and afford a sufficient basis for its exercise without needing to in-
v'oke the common law."

IN THE UNITED STATES COURT FOR CHINA.
Francis M. Brooks, Plaintiff, v. P. W. Irvine, C. W. Mead
and The International Banking Corporation, De-
fendants.

[Civil action No. 39; filed August 21, 1907.]

SYLLABUS.

(By the Editor.)

EQUITABLE ASSIGNMENT: PRIORITY OF LlENS. An order upon a
specific fund in bank creates thereon an equitable lien which
prevails over a subsequent attachment.

Lorrin Andrews, Esq., for plaintiff.
Arthur Bassett, Esq., for defendant.

WiLFLEY, J.:

On or about July 29, 1905, defendant Mead borrowed from
plaintiff the sum of Mex. $2,750 and executed a promissory
note which recited that the same was for value received,
and that the sum would be returned within sixty days ; but
it was not. On October 31, 1906, Mead gave an order on the
International Banking Corporation at Shanghai in which
he directed said Banking Corporation to "pay to the order
of Francis M. Brooks the sum of $3,025, as soon as the
money you have of mine is released from the Standard Oil
Company bond." Plaintiff testified that he received this
order in due course, and immediately upon its receipt he
presented it to said International Banking Corporation at
Shanghai. On or about December 31, 1906, the manager
of said Banking Corporation informed plaintiff that the
money referred to in the order of the defendant Mead was
not available. It appears that the International Banking
Corporation had become surety for Mead on a certain bond

"9 U. S. Stats, at Large, Sess. I, Ch. 140, sec. 3; 12 U. S. Stats.
at Large, Sess. I, Ch. 179, sec. 3.

" See In re Estate of Alberta C. K. Fitch and Yao Sui Dong v.
American Food Mfg. Co., Ltd., post, p. 869.

108 I EXTRATERRITORIAL CASES.

which the latter had executed to the Standard Oil Company
of New York, and in order to protect said Banking Cor-
poration against any loss which might result by reason of
this transaction, Mead had agreed that said bank should
hold a certain fund which he had deposited with said bank.
The testimony showed that at the date of filing this suit,
the Standard Oil Company bond had been cancelled snd
the claim of said International Banking Corporation to the
special fund above referred to, relinquished ; also that upon
the application of defendant Irvine, an alleged creditor of
Mead, the United States Court for China issued an attach-
ment against the funds of Mead in the hands of said Inter-
national Banking Corporation, and as a result thereof, all
of the moneys which Mead had on deposit in said bank were
transferred to the account of the Marshal of the United
States Court for China.

In view of the foregoing facts, namely, that said C. W.
Mead was indebted to the plaintiff in the amount claimed
in the petition, and that he had given an order to the plain-
tiff on the International Banking Corporation for the pay-
ment of the same out of a special fund belonging to said
Mead held by said Banking Corporation, the Court finds
that said order created an equitable lien upon said special
fund.i

It is therefore ordered that

1. The attachment issued by the Court upon the applica-
tion of P. W. Irvine be dismissed ;

2. The Marshal transfer said funds which have been de-
posited in his name as a result of the attachment, to the
International Banking Corporation;

3. Said International Banking Corporation pay to plain-
tiff the sum of $3,025 Mexican ;

4. Defendant pay the costs.

'In National Bank v. Millard, 10 Wall. (U. S.), 152, 19 L. ed.,
897, the Supreme Court held that the holder of a check could not
sue the bank thereon unless it had been accepted. See also First
Nat. Bank v. Whitman, 94 U. S., 343, 24 L. ed., 229; Basket v. Hassell,
107 U. S., 602, 27 L. ed., 500; Phoenix Bank v. Risley, 11 U. S., 125,
28 L. ed., 374. The contrary view is presented in Fonner v. Smith,
31 Neb., 107. Ed.

CUNNINGHAM V. RODGERS, AUG. 19, 190 7. 109

IN THE UNITED STATES COURT FOR CHINA.

Albert W. Cunningham, Administrator, Plaintiff, v. James
Linn Rodgers, Consul-General of the United States at
Shanghai, China, Defendant.

[Civil action No. 33; filed August 19, 1907.]

SYLLABUS.
(By the Court and the Editor.)

1. ADMINISTRATION OF ESTATES: JURISDICTION. China, in so far as

the administration of estates of Americans decedent therein is
concerned, is a separate, distinct and complete jurisdiction, similar
to that of one of the unorganized territories of the United
States.

2. Id. : The Personal Representative's Authority is limited to the

jurisdiction wherein the Letters were issued.

Geo. F. Curtis, Esq., for plaintiff.
Arthur Bassett, Esq., for defendant.

Wilfley, J.:

The question raised by the plea in abatement filed herein
is whether an administrator appointed in the State of Maine
can, in his capacity as such, prosecute a suit in the extra-
territorial jurisdiction of China.

The pleadings in this case disclose that on June 10, 1905,
Henry H. Cunningham, an American citizen, died at Shang-
hai, China, leaving a will in which Edward H. Dunning was
named as executor. On June 26, 1905, Edward H. Dunning
presented said will to the American Consular Court at
Shanghai for probate. Consul-General James Linn Rod-
gers, sitting as Judge, admitted the will to probate and
confirmed said Edward H. Dunning as executor. The
estate was then administered by said executor under the
direction of said Consular Court, in accordance with the
provisions of the will. On May 17, 1907, Albert W. Cun-
ningham, administrator of the estate of Henry H. Cunning-
ham in the State of Maine, filed suit against James Linn
Rodgers, Consul-General of the United States at Shanghai,
China, charging him with negligence and misconduct in
office in this, that said James Linn Rodgers administered
the estate of said Henry H. Cunningham in his judicial ca-

110 I EXTRATERRITORIAL CASES.

pacity, and not in his capacity as Consul-General in ac-
cordance with the provisions of sections 1709, 1710 and
1711 of the Revised Statutes of the United States and
asked for a judgment against said James Linn Rodgers in
the sum of $58,165.85.

In abatement of this suit defendant files a plea in which
he contends that said plaintiff Albert W. Cunningham,
being the administrator of the estate of Henry H. Cunning-
ham in the State of Maine only, is without right or author-
ity in his capacity as such administrator to prosecute a suit
of any character in the extraterritorial jurisdiction of
China.

It is manifest from the facts recited in the petition that
Consul-General Rodgers entertained the view that he, as
Judge of the Consular Court sitting in Shanghai, had juris-
diction under the common law to probate wills and ad-
minister the estates of Americans decedent in China, and
that he was of the opinion that Henry H. Cunningham was
a citizen of the United States domiciled in China. * * *

This Court has held that it has jurisdiction to probate
wills and administer estates of Americans decedent in China
in accordance with the provisions of the common law, that
prior to the inauguration of this Court, the American Con-
sular Courts in China were clothed with the same juris-
diction ' and that an American citizen may be domiciled in
China. -

The significance of the foregoing decisions is that under
the treaties of extraterritoriality in force between the
United States and China and the Acts of Congress passed
pursuant thereto, and for the purpose of carrying the same
into full force and effect, China, in so far as the adminis-
tration of the estates of Americans decedent therein is
concerned, is a separate, distinct and complete jurisdiction,
similar to that of an unorganized territory belonging to
the United States.

The law on the question raised by defendant's plea in
abatement is clear. The authorities all hold that the right

^In re Roberts' Will, No. 10; May 15, 1907.
" In re Young John Allen's Will, ante, p. 92.

CUNNINGHAM V. RODGERS, AUG. 19, 1907. HI

of an administrator of an estate does not go beyond the
limits of the state in which he is appointed.

"The plaintiff certainly cannot maintain this bill as administrator
of Stewart, even if the bill can be construed as framed in that aspect;
because he admits that he has never taken out letters of administra-
tion in New York; and the letters of administration granted to him
in Michigan confer no power beyond the limits of that state and
cannot authorize him to maintain any suit in the courts, either state
or national, held in any other state." ^

"The first plea puts in issue the representative character of the
plaintiff in the state of Wisconsin. It denies that, as to the causes
of action stated in the declaration, he is or ever has been adminis-
trator of the effects of the deceased, and thus raises the question
whether an administrator, appointed in one state, can, by virtue of
such appointment, maintain an action in another state to enforce
an obligation due his intestate. And upon this subject the law is
well settled. All the cases on the subject are in one way. In the
absence of any statute giving effect to the foreign appointment, all
the authorities deny any efficacy to the appointment outside of the
territorial jurisdiction of the state within which it was granted. All
hold that in the absence of such a statute no suit can be maintained
by an administrator in his official capacity, except within the limits
of the state from which he derives his authority. If he desires to
prosecute a suit in another state he must first obtain a grant of
administration therein in accordance with its laws." *

In view, therefore, of the foregoing-, we hold that Albert
W. Cunningham as administrator of the estate of Henry H.
Cunningham, appointed by the courts of the State of Maine,
is without authority to prosecute this action.

The plea in abatement is sustained.'^

'Johnson v. Powers, 139 U. S., 156, 35 L. ed., 112.

' Noonan v. Bradley, 9 Wall. (U. S.), 394, 19 L. ed., 757.

'In the earlier Estate (No. 30) of W. N. Pethick, deceased, the
same Judge, by an order of April 3, 1907, appointed an administra-
tor in China, though one had already been named by the Courts of
New York for decedent's estate there.

In Cunningham v. Rodgers, Wash. L. Rep., XLVIII, 216, action
against the same defendant was instituted in the Supreme Court of
the District of Columbia, which sustained a demurrer for want of
jurisdiction. This ruling was upheld by the Court of Appeals (March
1, 1920) on the ground that under Rev. Stats., sec. 1697, only the
administrator could maintain the action.

112 I EXTRATERRITORIAL CASES.

IN THE UNITED STATES COURT FOR CHINA.
ToEG & Read, Plaintiffs, v. Thomas Suffert, Defendant.

[Civil action No. 28; filed September 3, 1907.]

SYLLABUS.

(By the Editor.)

1. WAGERING CONTRACTS, while enforcible at common law, are void

under the decisions of the American Courts, Federal and state.

2. Id. : Evidence examined and found to show that the contract sued

arose in a wager.

Stirling Fessenden, for plaintiff.
A^. C. Home, for defendant.

WiLFLEY, J.:

This is a suit brought by Toeg & Read, a firm of stock-
brokers in Shanghai, against T. Suffert, an American
citizen, on a note for Tls. 4,949 given in payment of losses
sustained by the latter as a result of a transaction in shares
on the Shanghai Stock Exchange, in which Toeg & Read
acted as Suffert's agents.

The history of the transaction, according to the testimony,
is as follows: On April 15, 1920, defendant gave plaintiffs
an order for the purchase of seventy-five "Farnham Boyd"
shares, which order was executed by the latter who paid for
the said shares at the rate of Tls. 267^ per share. These
shares were purchased for the "July Settlement." They
were sold under instructions from defendant on July twenty-
sixth at Tls. 190 per share. The net loss sustained, after de-
ducting interest, commissions, and other small items, was
Tls. 4,949. On August 31, 1902, Suffert executed the fol-
lowing note to plaintiffs:

"Shanghai, August 31, 1902.
On demand I promise to pay to the order of Messrs. Toeg & Read
the sum of Taels Four Thousand Nine Hundred and Forty Nine,
Shanghai Sycee, for value received.
Tls. 4,949.

(Sgd.) T. Suffert."

Demand having been made upon the foregoing note and
payment refused, suit was instituted in this Court on said

TOEG & READ V. SUFFERT, SEPT. 3,1907. 113

note on May 6, 1907. Defendant in his answer filed herein
admits the execution of said note, but denies liability under
it on the ground that the obligation in satisfaction of which
it was given grew out of a transaction on the Shanghai
Stock Exchange which was in fact and in law a gambling
transaction, and for this reason the alleged obligation is
illegal and void.

The foregoing facts are undisputed. The main fact in
dispute is whether the transaction was intended to be in
the nature of an investment or a settlement on differences.
Plaintiffs allege that they were ignorant of defendant's
intention in the matter, while defendant contends that it
was his purpose to enter upon a purely speculative venture
and that this purpose was made known to the plaintiffs at
the time the orders were given.

The Act of June 30, 1906, creating this Court, author-
izes it to apply the laws of the United States now in force
in the Consular Courts in China, and when such laws are
deficient "the common law and the law as established by the
decisions of the Courts of the United States shall be applied
by said Court in its decisions and shall govei^n the same."
This Court has defined the common Jaw, to mean the
common law of England and the statutes passed in aid
thereof which were adapted to the situation of the Amer-
ican colonies at the date of transfer of sovereignty "as mod-
ified, applied, and developed generally by the decisions of
the state courts and the decisions of the United States
Courts, and incorporated generally into the statutes and
constitutions of the States."^

It will be seen that this Court will only enforce those
principles of the common law which have been introduced
generally into the laws of the various states of the Union,
and which, in the language of Chief Justice Marshall, "form
the substratum of the laws of every state," so that in the
case under consideration it will not be sufficient to show what
the common law rule relating to gambling and wagering
laws was at the date of the transfer of sovereignty unless

* U. S. V. Biddle, ante, p. 84.

14008 O. W. 8

1X4 I EXTRATERRITORIAL CASES.

it also be shown that said rule has been incorporated gen-
erally into the law of the various states of the Union and
applied generally by our state and federal courts. The act
creating this Court provides in terms that the law estab-
lished by the decisions of the courts of the United States
shall be applied by this Court.

An examination of the authorities will disclose the fact
that the rule of law relating to stock exchange transactions
as found generally in the statutes of the states and as
applied and developed generally by the decisions of the
state courts and of the United States Courts, is clear and
well established. Nearly all of the states of the Union
have enacted statutes covering this subject, which make
trading on the stock exchange on "margins," on "future
delivery," or with view to "settlement on differences,"
gambling contracts and hence illegal and void.

Great Britain has also enacted statutes on this subject.^
Sir John Barnard's Act dealt with the "infamous practice
of stock-jobbing," and was more particularly directed to
wagers on the price of stock, or, as they are sometimes
called, "agreements to pay differences." This was followed
by the Statute of 8 & 9 Victoria, c. 109, s. 18, which
provides

"that all contracts or agreements, whether by parol or in writing,
by way of gambling or wagering, shall be null and void; and that
no suit shall be brought or maintained in any court of law or
equity for recovering any sum of money or valuable thing alleged
to be won upon any wager, or which should have been deposited
in the hands of any person, to abide the event on which any wager
should have been made."

Interpreting this act, the English Courts, while holding
that a transaction on the stock exchange with view to
settlement on differences was a wagering contract which
could not be enforced between the principals, decided that
a contract between one of the parties to the transaction
and his broker by which the broker incurred liabilities for
his principal while acting in conformity to the rules of the

^ The most important are Sir John Barnard's Act, 7 George II,
c. 8, and 8 & 9 Victoria, c. 109, s. 18.

TOEG & READ V. SUFFERT, SEPT. 3, 1907. 115

stock exchange, was not a gambling contract within the
meaning of the law.''

The American courts, however, have not followed the
early English decisions on this subject, but have seen fit
to give a different interpretation to statutes of a similar
nature, and the modern decisions of the courts of Great
Britain which have been brought to our attention indicate
that they also are unwilling to follow the rule laid down
by the early English decisions. It is certain, however, that
the rule of the early English courts has not been adopted
generally by the American state and the federal courts.
The general rule on the subject has been clearly and suc-
cinctly stated as follows : *

"At common law wagers which did not violate any rule of public
decency or morality, or any recognized principle of public policy,
were not prohibited. Since the passing of the above statute (8 & 9
Vict., c. 109, s. 18), however, cases have arisen which present the
question whether an executory contract for the sale of goods is not
a device for indulging in the spirit of gaming which the statute
was intended to repress. It has already been shown {ante, par. 78,
etc.) that a contract for the sale of goods to be delivered at a future
day is valid, even though the seller has not goods, nor any other
means of getting them than to go into the market and buy them.
But such a contract is only valid where the parties really intend and
agree that the goods are to be delivered by the seller, and the price
to be paid by the buyer. /•/, tinder guise of such a contract, the
real intent be merely to speculate in the rise and fall of prices, and
the goods are not to he delivered, hut one party is to pay to the
other the difference hetween the contract price and the market price
of the goods at the date fixed for executing the contract, then the
whole transaction constitutes nothing more than a wager, and is null
and void under the statute."

The Supreme Court of the United States, in a number of
decisions, has adopted in terms the rule as laid do\vn by
Benjamin, and has carried its application one step farther.
It has also held that a broker, who, in the capacity of
agent, represents a trader on the stock exchange may be
so connected with the transaction as to render any con-
tract which he may make with his principal illegal and void.'

' The leading case on the subject, is Thacker v. Hardy, 4 Q. B.
D. 685.

* Benjamin, Sales (7th Am. ed.) sec. 542.

' The leading cases on this point are Irwin v. Williar, 110 U. S.
509, 28 L. ed. 225 and Embrey v. Jemison, 131 U. S. 336, 33 L. ed. 172.

116 I EXTRATERRITORIAL CASES.

"It is certainly true," said the court in the first of these cases,'
"that a broker might negotiate such a contract without being privy
to the illegal intent of the principal parties to it which renders it
void, and in such a case, being innocent of any violation of law, and
not suing to enforce an unlawful contract, has a meritorious ground
for the recovery of compensation for services and advances. But we
are also of the opinion that when the broker is privy to the unlaw-
ful design of the parties, and brings them together for the very
purpose of entering into an illegal agreement, he is particeps criminis
and cannot recover for services rendered or losses incurred by him-
self on behalf of either in forwarding the transaction." * * *

"* * * for, as was propei'ly said in the charge, 'it makes no
difference that a bet or wager is made to assume the form of a con-
tract. Gambling is none the less such because it is carried on in the
form or guise of legitimate trade.' It might therefore be the case,
that a series of transactions, such as that described in the present
record, might present a succession of contracts, perfectly valid in
form, but which on the face of the whole, taken together, and in
connection with all the attending circumstances, might disclose in-
dubitable evidences that they were mere wagers."

The general principle laid down in the second case "^ was
that a contract for the purchase of future delivery of
actual cotton being contemplated by the parties, but the
settlement in respect to which was to have been upon the
basis of mere "differences" between the market price and
contract price of said cotton futures according to the
fluctuations of the market, was a, wagering contract, and
illegal and void as well under the statutes of New York and
Virginia as generally in this country. The Court also held
that the original payee cannot maintain an action on a
note, the consideration of which is money advanced by him
upon or in execution of a contract of wager, he being a
party to such contract, or having directly participated in
the making of it in the name, or on behalf of one of the
parties.

The attitude of the state courts generally on the question
under consideration is illustrated by the utterances quoted
below :

"The mere fact that there was specific property about which the
transaction occurred would make no difference. Parties may as

"Irwin V. Williar, 110 U. S. 509, 28 L. ed. 225, disapproving
Thacker v. Hardy, 42 Q. B. D. 685.

' Embrey v. Jemison, 131 U. S. 336, 33 L. ed. 172.

TOEG & READ V. SUFFERT, SEPT. 3, 1907. 117

effectually gamble with reference to actual property as with reference
to the prices of different classes of property. The cases do not turn
upon that point, but upon the actual intent of the parties." '

"The rule is well established that when the parties to an executory
contract for the sale of property do not intend that the property
shall be delivered, but that the transaction is to be settled by the
payment of the difference between the contract price and the market
price of the article at a time stated, the contract is void. * * *

"It is the duty of the courts, therefore, where the validity of the
contract is challenged, to receive evidence outside of the words of
the contract and examine the facts and circumstances which attended
the making of it in order to ascertain if possible whether it was
intended as a bona fide transaction for the purchase and delivery of
property or merely colorable.'"*

"A transaction in stocks by way of margin, settlement of differ-
ences and payment of gain or loss, without intending to deliver
stocks, is a mere wager." '"

"And to justify a court in upholding such agreement it is not
too much to require a party claiming rights under it to make it satis-
factorily and affirmatively appear that the contract was made with
an actual view to delivery and receipt of grain, not as an evasion
of the statute against gaming, or as a cover for a gambling trans-
action." "

In view of the foregoing principles of law which have
been thoroly and universally established by the decisions of
the courts of the United States, and which have been in-
corporated generally into the state statutes, it is manifest
that the fate of this case must turn upon the answer given
to the question : Was it the intention of the defendant
Suffert and plaintiff Read at the time the order to purchase
the shares in question was given that said purchase should
be for the purpose of investment and for the actual delivery
of the shares, or was it understood between the said parties
that the contract was made with a view to a settlement on
"differences"? The testimony on this point is somewhat
contradictory, plaintiff Read stating that he had no knowl-
edge of defendant's intention when the transaction was
made, defendant, on the other hand, holding that it was

' First National Bank v. Carroll, 80 la. 11, 45 N. W. 304, 8 L. R.
A. 276.

" Sprague v. Warren, 26 Neb. 326, 41 N. W. 1113, 3 L. R. A. 679.

" Waugh v. Beck, 114 Pa. St. 42, 6 Atl. 923.

" Barnard v. Backhaus, 52 Wis. 593, 6 N. W. 252, 9 N. W. 595.

11^ I EXTRATERRITORIAL CASES.

his intention to speculate on the rise and fall of stocks and
that he informed plaintiff Read of this fact on various
occasions. The testimony (p. 33) of Suffert on this point
is as follows:

"I told Mr. Read, not only on one occasion but on several occasions,
that I was buying and selling only on differences, that I had never
taken the shares up with anybody else, or intended to. I told him
that to protect me, so to speak."

In view of the conflicts on this point it becomes necessary
to examine all the testimony produced at the trial and to
consider all the circumstances attending the transaction
for the purpose of ascertaining the real intention of the
parties. The record shows that plaintiff Read met the
defendant at the Race Club in 1902, at which time they
engaged in a conversation on the subject of trading on the
stock exchange. As a result of this conversation, it appears
that plaintiffs purchased for defendant's account a large
number of shares during the six months immediately fol-
lowing. According to Read's testimony, plaintiffs pur-
chased for defendant's account, on January 24, 30 "Pulps,"
on February 17, 60 "Pulps," on April 15, 75 "Farnhams";
on July 26 he sold 75 "Farnhams." Mr. Read also testified
(p. 4) that the "actual transaction upon which this case
is based was for the July settlement." The record also
shows that plaintiffs submitted statements covering these
transactions to defendant Suffert on various occasions,
which indicate that all of said purchases were for future
delivery.

Eliminating, for the time being, the consideration of the
testimony of defendant Suffert on the question of intention,
it is hardly reasonable to suppose from plaintiff Read's own
testimony that he entertained the view that this transaction
was a bo7ia fide one for the actual purchase and delivery of
shares. The testimony shows that he knew very little about
Suffert at the time the transaction was made, and what he
did know was not such as to warrant him in making a large
investment on his behalf. He testified (p. 6) on this point
as follows:

"Q. Did he (Suffert) come to you in the first instance or did you
go to him?

TOEG & READ V. SUFFERT, SEPT. 3, 1907. 119

A. My recollection is that he first approached me at the coffee
table at the Race Club. He gave me an order to buy twenty Langkats.

Q. At that time did you know Mr. Suffert as an operator in shares?

A. I did not know that. He was a member of the Race Club and at
that time I believe he had one or two ponies."

On cross-examination, Mr. Read made the following state-
ment:

"Q. When you bought these shares, which you allege for Mr. Suf-
fert, had you any knowledge of his financial position?

A. None whatever, except that he was a member of the Race Club.

Q. That is not a very expensive matter.

A. No, but race ponies is.

Q. You bought shares to an amount exceeding Tls. 30,000 on ac-
count of Mr. Suffert?

A. Yes."

There is nothing in the record which goes to show that
defendant Suffert was a man of any financial standing in
this community, or that plaintiffs had any reason to believe
that he was. The testimony also shows that these transac-
tions took place at a time when gambling on the stock ex-
change was rife in Shanghai. The testimony of Mr. Read
on this point is as follows :

"Q. You say this was the top of a big boom? You mean in spec-
ulation?

A. You can call it speculation if you like.

Q. Buying for a rise?

A. Everybody had been making money.

Q. Over speculating?

A. People had been making money.

Q. Don't you mean by speculating?

A. I admit to a great extent."

It thus appears that the testimony in this case establishes
the following facts :

1. That plaintiffs made and executed the above-mentioned contract,
involving the outlay of large sums of money, without any knowledge
of the financial standing of defendant Suffert further than that he
was a member of the Shanghai Race Club and owned one or two
ponies;

2. That when the stocks in question were purchased for defendant,
no demand was made upon him for the purchase price of the same:
on the other hand a number of accounts were rendered by plaintiffs
covering said transactions, all of which indicate that the parties un-
derstood the transaction to be with view to settlement on differences;

]^20 I EXTRATERRITORIAL CASES.

3. That speculating in shares in this community is usually rife, and
that the transaction under consideration was made during a period
when there was a so called boom in stocks in Shanghai;

4. That defendant has testified clearly and specifically that he told
plaintiff Read on several occasions that the buying and selling was
on differences and that he never had taken up shares with anybody
else and never intended to do so with him.

In view of these facts, it is impossible to escape the con-
viction that the contract in question v^^as made v^ith view
to settlement on differences pure and simple and that it
was so understood by the parties at the time the contract
was made.

We hold, therefore,

1. That the transaction in question which gave rise to the
obligation upon which this suit is based was a gambling
transaction which, under the law, was illegal and void.

2. That said plaintiffs herein, acting as brokers for said
defendant in said transaction were privy to the unlawful
designs of the parties to the contract and aided in bringing
them together for the purpose of entering into said illegal
agreement, thereby became particeps criminis, and hence
cannot recover for services rendered or losses sustained by
them on behalf of said defendant in said transaction.

The plaintiffs will pay the costs.^-

IN THE UNITED STATES CIRCUIT COURT OF APPEALS.
Charles A. Biddle v. United States.

[No. 1463; filed October 28, 1907.]

SYLLABUS.

(By the Editor.)

1. EXTRATEREITORIAL JURISDICTION: THE OBJECT of the Sino-
American treaties and the legislation for executing them was
to secure for Americans in China the benefits of their own sys-
tem of criminal procedure and at the same time to subject them
to punishment for acts made criminal by any law of the United
States or by the common law.

" An appeal was dismissed (167 Fed. 125) oh the ground that the
cause could be brought up by writ of error only.

BIDDLE V. UNITED STATES, OCT. 28, 1907. 121

2. CRIMES: Obtaining Property Under False Pretenses was an

offense at common law.

3. Id. : Id.: It is also an offense under the Acts of Congress in force

over Americans in China.

4. Id. : Id.: Information for said offense held insufficient in not al-

leging misrepresentation as to some past or existing fact.

5. Id. : Id. : Evidence found insufficient to convict of such offense.

Edwin H. Lamme and Francis Ellis, for appellant.
Robert T. Devlin, U. S. District Attorney, and Benjfimin
L. McKinley, Assistant, contra.

De Haven, District Judge:

This is an appeal by the defendant from a judgment of
the United States Court for China, by which he was con-
victed of the crime of obtaining money under false pre-
tenses and sentenced to imprisonment for the term of one
year in the jail at Shanghai.

It is claimed by the appellant, first, that the court below
was without jurisdiction to try him for such alleged crime,
because the act of obtaining money or goods by false pre-
tenses was not an offense at common law, and is not made
a crime by the laws of the United States ; and second, that
the evidence was not sufficient to warrant his conviction.

The United States Court for China was created by the
Act ^ of June 30, 1906, and by section one of that act was
given,

"exclusive jurisdiction in all cases and judicial proceedings whereof
jurisdiction may now be exercised by United States consuls and
ministers by law and by virtue of treaties between the United States
and China, except in so far as the said jurisdiction is qualified by
section two of this Act."

Section 4, of the same act, provides :

"The jurisdiction of said United States court, both original and
on appeal, in civil and criminal matters, and also the jurisdiction of
the consular courts in China, shall in all cases be exercised in con-
formity with said treaties and the laws of the United States now
in force in reference to the American consular courts in China, and
all judgments and decisions of said consular courts, and all decisions,

' 34 U. S. Stats, at Large, Pt. I, Ch. 3934, p. 814.

122 I EXTRATERRITORIAL CASES.

judjvments, and decrees of the United States court, shall be enforced
in accordance with said treaties and laws. But in all such cases when
such laws are deficient in the provision necessary to give jurisdiction
or to furnish suitable remedies, the common law and the law as es-
tablished by the decisions of the courts of the United States shall be
applied by said court in its decisions and shall govern the same sub-
ject to the terms of any treaties between the United States and
China."

The law in relation to the jurisdiction of consular courts
at the date of the passage of the act creating the United
States Court for China, is found in section 4086 of the
Revised Statutes, and is as follows :

"Jurisdiction in both civil and criminal matters shall, in all cases,
be exercised and enforced in conformity with the laws of the United
States, which are hereby, so far as is necessary to execute such
treaties, respectively, and so far as they are suitable to carry the
same into effect, extended over all citizens of the United States in
those countries, and over all others to the extent that the terms of
the treaties, respectively, justify or require. But in all cases where
such laws are not adapted to the object, or are deficient in the pro-
visions necessary to furnish suitable remedies, the common law and
the law of equity and admiralty shall be extended in like manner over
such citizens and others in those countries."

The United States by its treaty with China, acquired
extraterritorial jurisdiction in civil controversies between
its citizens residing in China, and in respect to all crimes
committed by its citizens residing there, and Congress in
the statutes above referred to provided tribunals to exercise
such jurisdiction, "in conformity with the laws of the United
States," and when these laws "are not adapted to the object,
or are deficient in the provisions necessary to furnish suit-
able remedies," then in accordance with the common law.

The object of the treaty and the intention of Congress,
in creating the United States Court for China, in so far as
that court is given criminal jurisdiction, was to throw
around American citizens residing or sojourning in China,
and there charged with crime, the beneficent principles of
the laws of the United States relating to the trial of persons
charged with crime; the rules of evidence, the presumption
of innocence, the degree of proof necessary to convict, the
right of the accused to be confronted with witnesses against

BIDDLE V. UNITED STATES, OCT. 28, 1907. 123

him, exemption from being compelled to criminate himself,
etc. But while securing to them these privileges, the
statute at the same time made them subject to punishment
for acts made criminal by any law of the United States,
or for acts recognized as crimes under the common law.

II.

This brings us to the consideration of the question,
whether obtaining money or goods by false pretenses is an
offense which may be thus punished, if committed by an
American citizen in China. This particular kind of cheat-
ing was not a crime under the ancient common law. It was
first so declared - in the year 1757, by the statute of 30
Geo. II, chap. 24.

"Under this statute for the first time, the crime ceased to depend
on the particular kind of pretense used, the statute being couched in
terms bi'oad enough to include the use of any false pretense whatever,
altho, as will appear later, the judges, in construing the statutes,
excepted certain classes of pretenses from it. It was this statute
that created the crime now commonly known as obtaining goods under
false pretenses. Several statutes have been enacted in England since
the statute of 30 Geo. II to supply defects found therein, but its
general provisions, in so far as they defined the crime, remain un-
changed." ^

But, if the Statute of 30 Geo. II, and those amendatory
of it, which were in force at the date of the separation of
the American colonies from the mother country, are to be
considered as a part of the common law to which Congress
referred in the enactment above quoted, the jurisdiction of
the court over the offense of obtaining money under false
pretenses would be undoubted; and we are of opinion that
in making the common law applicable to offenses committed
by American citizens in China, and the other countries with
which we have similar treaties, Congress had reference to
the common law in force in the several American colonies
at the date of the separation from the mother country, and
this included not only the ancient common law, the lex non

^ Bishop, Criminal Law (3rd ed.) vol. 2, sec. 392.
* Cyc. XIX, 387.

124 I EXTRATERRITORIAL CASES.

scripta, but also statutes which had theretofore been passed
amendatory of or in aid of the common law.

"The rule is familiar to the legal profession, that colonists to an
uninhabited country carry with them the laws of their mother country,
as far as applicable to their new situation and circumstances; and
that, in their new home, the laws thus taken with them, whether in
the mother country they were written or unwritten, are regarded as
unwritten, or common law." *

The a,uthor of a great work,^ says :

"The colonies also had legislatures of their own, by which laws
had been passed which were in force at the time of the separation,
and which remained unaffected thereby. When, therefore, they
emerged from the colonial condition into that of independence, the laws
which governed them consisted, first, of the common law of England,
so far as they had tacitly adopted it as suited to their condition;
second, of the statutes of England, or of Great Britain, amendatory
of the common law, which they had in like manner adopted; and
third, of the colonial statutes. The first and second constituted the
American common law, and by this in great part are rights adjudged
and wrongs redressed in the American States to this day."

III.

In holding that the court below had jurisdiction of the
information upon which the defendant was tried, it is not
necessary for us to rest our decision entirely upon the pro-
position that obtaining money or goods under false pre-
tenses is an offense at common law, within the meaning
of the statute conferring jurisdiction upon the United
States Court for China, as we are clearly of opinion that
such an act is a crime under the laws of the United States,

It is true, there is no general statute applicable to every
state in the Union, making this an offense against the United
States, nor could there be in view of the fact that under
our system of government, the right to punish for such acts
committed within the political jurisdiction of the state, is
reserved to the several states ; but in legislating for territory
over which the United States exercises exclusive legislative
jurisdiction, Congress has made the act of obtaining money

* Bishop, Criminal Law (3rd ed.), sec. 155.

" Cooley, Constitutional Limitations (2nd ed.), 25.

BIDDLE V. UNITED STATES, OCT. 28, 1907. 125

under false pretenses, a crime. Thus in section 54 of Title
I., Part I, of the Act passed March 3, 1899, entitled, "An Act
to define and punish crimes in the District of Alaska and
to provide a code of criminal procedure for said District,"
Congress has enacted, that obtaining money or property
from another by any false pretense, shall constitute a crime,
subjecting the offender to punishment by imprisonment in
the penitentiary not less than one nor more than five years.
So also, under section 842 of the Act of March 3, 1901,
entitled "An Act to establish a code of law for the District
of Columbia," obtaining from any person anything of value
by means of false pretenses, is made a crime, and where
the value of the property so secured is thirty-five dollars
or upwards, subjects him to imprisonment not less than one
year nor more than three years; or, if less than that sum,
to a fine not more than two hundred dollars, or imprison-
ment for not more than six months, or both.''

Congress has thus clearly declared, that in the territory
of Alaska and in the District of Columbia over which the
government of the United States exercises exclusive legis-
lative jurisdiction, obtaining money or goods under false
pretenses, constitutes an offense.

In addition to these statutes, section 2 of the Act of July
7, 1898 ' which is in substance a reenactment of section 5391,
Revised Statutes, provides:

"That when any offense is committed in any place, jurisdiction
over which has been retained by the United States or ceded to it by
a State, or which has been purchased with the consent of a State for
the erection of a fort, magazine, arsenal, dockyard or other needful
building or structure, the punishment for which offense is not pro-
vided for by any law of the United States, the person committing
such offense shall, upon conviction in a circuit or district court of the
United States for the district in which the offense was committed, be
liable to and receive the same punishment as the laws of the State
in which such place is situated now provide for the like offense when
committed within the jurisdiction of such State, and the said courts
are hereby vested with jurisdiction for such purposes; and no

" 31 U. S. Stats, at Large, 1326.
'30 U. S. Stats, at Large, 717.

126 I EXTRATERRITORIAL CASES.

subsequent repeal of any such State law shall affect any such
prosecution."

Under this statute, any act committed in any place under
the jurisdiction of the United States, if made an offense
by the laws of the State, in which such place is situate,
when committed elsewhere in the State, is an offense
against the United States, and punishable as in the State
law provided.*

At the date of the passage of the Act of July 7, 1898,
just quoted, the act of obtaining money or goods by false
pretenses was made a crime by the laws of most of the
states of the Union, and is, therefore, under this statute,
also made a crime against the United States, in all places
over which the United States exercises exclusive legislative
jurisdiction, within the several states, having laws provid-
ing for the punishment of such an act as a crime.

In view of the legislation of Congress to which we have
referred (the Acts relating to Alaska, and the District of
Columbia, and the statute of July 7, 1898), our conclusion
is, that obtaining money or goods under false pretenses
is an offense against the laws of the United States, within
the meaning of the statute conferring jurisdiction upon
the United States Court for China, and that an American
citizen guilty of the commission of such an act in China
is subject to trial and punishment therefore by that court.

IV.

But, we are of opinion, that the information upon which
defendant was convicted, does not state facts sufficient to
constitute the offense of obtaining money under false pre-
tenses. The information so far as is necessary to be here
set out, charges, that the defendant,

"on or about the 31st day of October, 1906, in Shanghai, China, un-
lawfully and knowingly did falsely pretend to Woo Ah Sung, Zung
Yu Young, Ng Sih Yiek and Sz Yung, that the municipal authorities
of the International Settlement of Shanghai, China, would allow and
permit in the building known as Nos. 4 and 5 Mohawk Road, Shanghai,

■ Sharon v. Hill, 24 Fed. 731; U. S. v. Wright, Fed Cas. No. 16774;
U. S. V. Pridgeon, 153 U. S. 48-53, 38 L. ed. 631.

BIDDLE V. UNITED STATES, OCT. 28, 1907. 127

China, * * * Chinese gambling games to be played during the
Autumn Race Meeting of 1906, in Shanghai, China, which pretenses
were false as the said C. A. Biddle, with intent to defraud, unlawfully
did obtain from the said Woo Ah Sung, Zung Yu Dong, Ng Sih Yiek
and Sz Yung the sum of Tls. 3,000.00 Shanghai Sycee as rent for the
said premises to be used for the said gambling games."

It will be noticed that the alleged false pretenses relate
wholly to some future action of the municipal authorities of
the International Settlement of Shanghai, in permitting
Chinese gambling to be played during the Autumn Race
Meeting of 1906, in Shanghai. There is no averment that
defendant made any false representation as to any existing
fact, or past fact, and without such an averment the charge
of obtaining money under false pretenses cannot be sus-
tained.

"Both in the nature of things, and in actual adjudication, says Mr.
Bishop,* the doctrine is, that no representation of a future event,
whether in the form of a promise or not, can be a pretense, within
the statute; for the pretense must relate either to the past or the
present."

The statement is well sustained by decided cases. '^ Our
attention has not been called to any case which holds to
the contrary. [That] " which is cited by the learned attor-
ney for the United States, is in harmony with the rule as we
have stated it. In that case the defendant obtained money
upon a draft drawn by him, he falsely stating at the time
that he had credit with the firm upon which it was drawn,
for the amount of the draft, and that the draft would be
honored. In that case it will be perceived, there was the
false representation of an existing fact, and the court in its
decision upholding the conviction in that case, said:

"It is true that, to come within the statute, a representation must
be of some fact, past or present; but the statement of the defendant
that he had credit with the firm named for the amount of the draft,
and that the firm would honor the draft, when he knew that he had
no credit with the firm, and that the draft would not be honored or
paid, was sufficient."

" Bishop, Criminal Law (3rd ed.) II, sec. 401.
"People V. Miller, 169 N. Y. 339, 62 N. E. 418; Cook v. State, 71
Neb. 243; 98 N. W. 810.

" People V. Wasservogel, 77 Cal. 173.

128 I EXTRATERRITORIAL CASES.

Passing from the information to a consideration of the
evidence: It was wholly insufficient to justify the conviction
of defendant. It appears that on May 29, 1906, the defend-
ant in his own name, but in fact acting for the Hotel
Metropole Company, Limited, entered into a contract with
the firm composed of the Chinese named in the information,
whereby the defendant,

"let during the four days of the autumn race meeting of 1906, the
whole of the second floor and veranda of the building Nos. 4 and 5
Mohawk Road, for the purpose of running Chinese tables for the sum
of taels six thousand — Tls. 6,000 — fifteen hundred taels of which to
be paid on the signing of the contract by the said Yik Che as bargain
money, the balance to be paid on or before the first day of November,
1906. This contract to be null and void should the municipal author-
ities prohibit the running of the said building as a Chinese grand
stand during said race meeting and the above mentioned fifteen hun-
dred taels bargain money be returned to the said Yik Che."

It is very clearly shown by the evidence that, when the
payments were made under this contract, the parties knew
that gambling was not then permitted in Shanghai, and
would not be during the approaching Autumn race meeting
of 1906, unless the municipal authorities should in some
manner remove the prohibition. There was also some evi-
dence tending to show that the Council had refused, before
the making of the above lease, to give its consent to the
suspension of the ordinance against gambling in Shanghai,
and that this fact was known to the defendant and not
communicated by him to the lessees ; and that he and others
were endeavoring to get the Council to recede from its
position against gambling, during the time the several
payments were made under this lease; but there was no
evidence that defendant ever made any express or implied
representation that the ordinance against gambling had
been repealed or suspended ; there was no false representa-
tion of any existing fact.

The judgment ^^ is reversed, with directions to discharge
the defendant.

See ante, 87. Ed.

PRICE V. UNITED STATES, NOV. 5, 1907. 129

IN THE UNITED STATES CIRCUIT COURT OF APPEALS.
S. R. Price v. United States.

[No. 1429; filed November 5, 1907.]
[156 Fed. 950, 15 L. R. A. (N. S.) 1272.]

SYLLABUS.

(By the Editor.)

1. CRIMINAL PROCEDURE: DOUBLE JEOPARDY. A preliminary ex-

amination will not bar a subsequent prosecution and a plea in
bar which alleges no more is properly overruled.

2. ASSAITIT. Dangerous weapon defined.

3. Id. Merely pointing an unloaded pistol at another is a simple as-

sault but not one with a "dangerous weapon."

Be7^t Schlesmger, Esq., for appellant.
Robert T. Devlin, Esq., U. S. Dist. Atty., for the Govern-
ment.

De Haven, D. J. :

The defendant was charged by information, filed in the
United States court for China, with the crime of assault
with a dangerous weapon, was tried, convicted, and sen-
tenced to imprisonment for the term of six months in the
jail * * * at Shanghai. The case is before us on an
appeal by the defendant from this judgment.

The court did not err in overruling the defendant's "plea
in bar," in which he alleged facts in support of a plea of
former acquittal of the same offense by the United States
consular court at Shanghai. In overruling this plea, the
judge of the court below said:

"from the allegation of the plea it is evident that the accused was not
placed on trial on a valid information, since it appears that the in-
formation contained three distinct charges, in no one of which was
defendant charged with assault. The consul general has no jurisdic-
tion of the offense charged in the information on which the accused
is now on trial. If he had any jurisdiction at all, it was to hold a
preliminary examination with view to holding the accused for trial
by a higher court. It appears from the allegations of the complaint
(plea in bar?) that the consul general exercised only this jurisdic-
tion. The proceedings before him, therefore, cannot be pleaded in
the bar to this action."

14008 O. W. 9

130 I EXTRATERRITORIAL CASES.

We cannot say from the record before us that the court
erred in its construction of defendant's plea, and the ex-
hibits attached thereto showing the proceedings before the
consul general at Shanghai. The allegation that, after hear-
ing the testimony in the proceeding relied on as a bar, the
consular court "dismissed all the charges against the defend-
ant and discharged defendant therefrom, and at the same
time served upon the defendant new charges," upon which
he was held to answer before the United States court for
China, is not an averment that the defendant was in the
proceeding tried upon the present charge, or of any offense
included therein, and adjudged not guilty by the consular
court, and is entirely consistent with the conclusion that
that court did not in the proceeding before it determine the
guilt or innocence of the defendant but, after hearing evi-
dence, required a new complaint to be filed, charging him
with an assault with a deadly weapon, and held him to
answer for that offense before the United States Court for
China.

The court found, and there is evidence to justify the
finding, that the defendant, at the time and place stated
in the information, while engaged in an angry altercation
with the complaining witness, without justification, and
within shooting distance, drew a revolver and pointed it to-
ward the witness in a threatening manner, putting him
in such fear that he got under a table for safety. The
court also found, and, indeed, the fact is undisputed, that
the pistol was unloaded, but this was not known to the
complaining witness. We think, upon the facts stated, the
judgment of the court convicting the defendant of the
offense of an assault with a dangerous weapon cannot be
sustained. In order to constitute that offense, a dangerous
weapon must be used in making the ascault. The use of a
dangerous weapon is what distinguishes the crime of an
assault with a dangerous weapon from a simple assault.
A dangerous weapon "is one likely to produce death or
great bodily injury.'" Or perhaps it is more accurately
described as a weapon which in the manner in which it is

' United States v. Williams, 2 Fed. 64.

PRICE V. UNITED STATES, NOV. 5, 1907. 131

used or attempted to be used may endanger life or inflict
great bodily harm. And it is perfectly clear that an un-
loaded pistol, when used in the manner shown by the evi-
dence in this case, is not, in fact, a dangerous weapon.
If the defendant had struck or attempted to strike with it,
the question whether it was or was not a dangerous weapon
in the manner used, or attempted to be used, would be
one of fact ; but the courts quite uniformly hold as a matter
of law that an unloaded pistol, when there is no attempt to
use it otherwise than by pointing it in a threatening manner
at another, is not a dangerous weapon.

But, while the evidence does not show that the defendant
committed the crime of an assault with a dangerous weapon,
it is yet sufficient to prove him guilty of the minor offense
of assault. It is true, as contended by counsel for appellant,
that it has been adjudged in many cases that pointing an
unloaded pistol at another, accompanied by a threat to
shoot, does not constitute an assault.- * * * The cases
from Indiana and California are based upon a statute in
force in each of these states, defining an assault as "an
unlawful attempt coupled with a present ability to commit
a violent injury upon the person of another." [The Alabama
case] does not rest upon any statute but lays down the
broad rule

"that there can be no criminal assault without a present intention,
as well as present ability, of using some violence against the person
of another."

We do not concur in this statement of the law, and in our
opinion the true rule is stated by Mr. Bishop 3 * * *
in the following language :

"There is no need for the party assailed to be put in actual peril,
if only a well-founded apprehension is created; for his suffering is
the same in the one case as in the other and the breach of the public
peace is the same. Therefore, if within shooting distance, one menac-
ingly points at another with a gun, apparently loaded, not loaded in
fact, he commits an assault the same as if it were loaded. There

' Klein v. State, 9 Ind. App. 365, 53 Am. St. Rep. 854, 36 N. E.
763; Chapman v. State, 78 Ala. 463, 56 Am. Rep. 42, and People v.
Sylva, 143 Cal. 62, 76 Pac. 814.

'Crim. Law (3rd ed.) II, par. 53.

132 I EXTRATERRITORIAL CASES.

must in such a case be some power actual or apparent, of doing
bodily harm; but apparent power is sufficient."

This view is sustained by many cases, only two of which
will be cited.* In [the first] the defendant had been con-
victed of an assault. The trial court instructed the jury :

"That if the defendant, within shooting distance, menacingly pointed
at Harrington a gun, which Harrington had reasonable cause to be-
lieve was loaded, and Harrington was actually put in fear of immediate
bodily injury therefrom, and the circumstances of the case were such
as ordinarily to induce such fear in the mind of a reasonable man,
that then an assault was committed, whether the gun was in fact
loaded or not."

In sustaining this instruction, the supreme court of Massa-
chusetts said:

"It is not the secret intent of the assaulting party, nor the undis-
closed fact of his ability or inability to commit a battery, that is
material; but what his conduct and the attending circumstances denote
at the time to the party assaulted. If to him they indicate an attack,
he is justified in resorting to defensive action. The same rule applies
to the proof necessary to sustain a criminal complaint for an assault.
It is the outward demonstration that constitutes the mischief which
is punished as a breach of the peace."

In [the second case] the action was trespass for an
assault. It appears from the statement of facts that

"the evidence tended to show that the defendant snapped the gun
twice at the plaintiff, and that the plaintiff did not know whether
the gun was loaded or not, and that, in fact, the gun was not loaded."

The court ruled that the pointing of a gun, in an angry
and threatening manner, at a person 3 or 4 rods distant,
who was ignorant whether the gun was loaded or not, was
an assault, tho it should appear that the gun was not
loaded. In upholding this instruction the supreme court
of New Hampshire thus forcibly states the rule which justi-
fies it:

"We have a right to live in society without being put in fear of
personal haiTn. But it must be a reasonable fear of which we com-
plain. And it surely is not unreasonable for a person to entertain

*Com. v. White, 110 Mass. 407; Beach v. Hancock, 27 N. H. 223,
59 Am. Dec. 373.

GINSBURG ET AL. V. ZIMMERMAN, DEC. 11, 1908. 133

a fear of personal injury when a pistol is pointed at him in a threat-
ening manner, when, for aught he knows, it may be loaded, and may
occasion his immediate death. The business of the world could not
be carried on with comfort if such things could be done with im-
punity."

Our conclusion is that, when the court gave credit to
the testimony of the witnesses for the prosecution, as it
did, and also found from the evidence offered by defendant
that the pistol was unloaded, it should have found the de-
fendant guilty of a simple assault.

The judgment is reversed, and the case remanded for a
new trial.

IN THE UNITED STATES COURT FOR CHINA.

Morris Ginsburg and Marcus Mess, co-partners, doing
business under the name and style of GiNSBURG &
Company, plaintiffs, v. S. Zimmerman, doing business
under the name and style of S. Zimmerman & Company,
defendant.

[Civil Action No. 55; filed December 11, 1908.]

SYLLABUS.
(By the Editor.)

CONTRACTS: Public Policy. A charter party is not avoided by false
registration of the vessel nor by using her to transport coolies
from one foreign port to another.

Messrs. Ellis & Hays and W. S. Fleming, Esq., for
plaintiff.

Messrs. Jemigan & Fessenden, for defendant.

WILFLEY, J.;

On March 23, 1907, defendant Zimmerman executed a
certain charter party with plaintiffs Ginsburg and Mess,
owners of the steamship Maori King, for its use and hire
for three months, beginning on March 24, 1907, with the
option of renewal for a like additional period. The rate to
be paid per month was $8,750 Mexican currency. If the
vessel was not delivered at the expiration of the above-

134 I EXTRATERRITORIAL CASES.

mentioned period, the defendant was to pay for the use of
the same for extra time she was in use at the above-
mentioned rate. The steamship was to be redelivered in
good condition and any time occupied in making repairs
should count the same as if the vessel were in use under
the charter party.

Pursuant to agreement, the defendant took delivery of
said steamship on March 24, 1907 and kept control of her
continuously until November 4, 1907, using her to transport
Chinese coolies from Vladivostok to Guaymas, Mexico.
Plaintiffs paid for her use from March 24 to August 8,
1907, but since that time have made no payments. The
vessel was redelivered to plaintiffs in a damaged condition.
The testimony showed that it would require twelve days to
make the necessary repairs. The amount due for the use of
the ship from August 8 to November 4, under the charter
party, at the rate of $8,750 Mexican per month is $25,083.33
Mexican. Estimates for her repair amount to $8,133.33
Mexican and her use for twelve days at $8,750 per month
would be worth $3,500.

The defendant denies liability on two grounds:

1. Because the vessel was falsely registered. It appears
that, while owned by Russian subjects, she had been regis-
tered in Shanghai in the name of a British subject, and
that after the expiration of the charter party and the re-
delivery of the vessel she was declared forfeited in a suit
in H. B. M. Supreme Court for China and Korea on the
ground that said false registration was in violation of the
laws of Great Britain. It is defendant's contention that he
should be absolved from liability because the title of the
owners was jeopardized by said false registration.

The evidence shows that the registration did not incon-
venience, nor in any wise affect, defendant's use of the
ship under his contract. His position is very much that of
one who has leased a house, the title to which had been
fraudulently acquired, without affecting his use and occu-
pation. Suppose, by way of illustration, a trustee should
purchase a house at his own sale, and before the purchase
could be set aside he should release the property to one who

GINSBURG ET AL. V. ZIMMERMAN, DEC. 11, 1908. 135

should use and occupy it under his lease without incon-
venience or embarrassment. The fact that the title was
tainted with fraud would be no defense to a suit by the
trustee to recover rent.

2. Defendant further seeks to avoid liability on the ground
that the steamship having been used in the so-called "coolie
trade," the enforcement of the terms of the contract would
be in violation of the public policy of the United States.

It is provided ' that if any vessel belonging in whole or
in part to a citizen of the United States, or registered,
enrolled or licensed therein, be employed in the coolie trade,
it shall be liable to seizure and condemnation. These stat-
utes also provide that any person who builds or fits out,
equips, or loads, or otherwise prepares, or who sends
to sea or navigates, as owner, master, factor, agent or other-
wise, any vessel belonging in whole or in part to a citizen
of the United States, or registered or enrolled or licensed
within the same, knowing that such vessel shall be em-
ployed in the coolie trade, shall be liable to criminal pros-
ecution. None of these sections, however, contains a provi-
sion against the shipment of coolies from one foreign port
to another in a foreign vessel. The mere statement of the
proposition, that a contract between a Russian and an Amer-
ican to charter a Russian vessel to ship coolies from Vla-
divostok to Guaymas violates the public policy of the United
States is sufficient to demonstrate its absurdity. The Court
is not familiar with any principle of public policy that would
be so violated, nor with any rule of statutory construction
which would enable such an interpretation to be placed-
upon the above-mentioned statutes. If Congress had in-
tended to prohibit citizens of the United States from ship-
ping coolies in a foreign vessel to and from foreign ports,
it would likely have inserted a provision to that effect.

It is not contended, however, that this contract comes
within the language of the law. The contention is indeed a
peculiar one. Defendant endeavors to bring the case in con-
troversy within the purview of a statute which, if it could
be pleaded at all, would render him liable to criminal prosecu-

" U. S. Rev. Stats. Sees. 2159, 2160 and 2161.

136 I EXTRATERRITORIAL CASES.

tion. In other words, if the spirit of the law, and not the
letter, should be applied, defendant's conduct would be
criminal. It is the opinion of the Court that this conten-
tion is not entitled to serious consideration.

Judgment is therefore rendered in favor of plaintiffs in
the sum of $38,980.85 Mexican currency, and for costs.

IN THE SUPREME JUDICIAL COURT OF MAINE.
Augusta C. Mather et al. v. Edward R. Cunningham.

[Filed April 15, 1909; 105 Me. 392, 74 Atl. 809.]

SYLLABUS.
(By the Editor.)

1. DOMICIL: Defined and discussed.

2. Id. : Of Choice: How established.

3. Id. The doctrine of immiscibility rejected.

4. Id. : Extraterritoriality does not change the rules of.

5. Id. : Id. An American may acquire a domicil in China and still

remain subject to the laws of the United States.

6. Id. : Id. : Administration of Estates. In such cases the American

Courts in China, and not those of decedent's domicil of origin,
have jurisdiction to administer his estate.

Littlefield & Littlefield, for appellant.

W. Henry White and Danton <& Morse, for appellees.

Spear, J.:

This is an appeal from the decree of the probate court
for Waldo county, dated September 11, 1906, appointing
Albert W. Cunningham administrator of the estate of Henry
H. Cunningham, deceased, and comes here on report. The
agreed facts show that Henry H. Cunningham was born
in 1838, in Swanville, county of Waldo, Me., of parents who
were citizens of the state of Maine and resident and dom-
iciled in said county and state. His parents continued
to reside in Waldo county, Me., until 1865, when they
removed to Manassas, Va. He resided with his parents in
Waldo county in this state continuously from his birth until
May 3, 1853, the last three years at Belfast, Me. In May,

MATHER ET AL. V. CUNNINGHAM, APR. 15, 1909. 137

1853, at the age of 15 he went to sea. In 1854 he went to
Australia. About 1857 he was for a time a pilot on the
river at Shanghai, China. He was never married, and at
the time of his death his only heirs and next of kin were
two brothers and two sisters. He died at Shanghai June
10, 1905, leaving an estate of personal property valued at
over $50,000. He left a will, in which he undertook to
dispose of his estate, executed in the presence of two wit-
nesses. After his death proceedings were had before the
United States Consul at Shanghai, China, for the settle-
ment and distribution of his estate, and the various legatees
have received their distributive share, thru the method
usually observed there in the settlement and distribution
of similar estates. The appellees, however, deny the right
of the Consular Court at Shanghai thus to settle and dis-
tribute the estate of the decedent, upon the ground that he
had never acquired a domicil in Shanghai ; that his domicil
continued, during all the years of his absence, to be in
Waldo county; that his will was not executed in accordance
with the laws of Maine, having but two witnesses ; and that
his estate should be administered here as intestate property.
Consequently they applied to the probate court for the
county of Waldo for the appointment of an administrator
to settle the estate. The appointment was made, from the
decree of which the appeal before us was taken.

It therefore appears that but two issues, one of fact and
one of law, are involved in the determination of this case.
Each presents the same question : Did the decedent have a
domicil in Shanghai at the date of his death (1) as a
matter of fact; (2) as a matter of law? The burden is
upon the appellants to establish the affirmative of both
issues.' We will first proceed to the issue of fact. As-
suming, arguendo, that the decedent could acquire a legal
domicil in Shanghai, do the necessary facts appear to sup-
port this conclusion?

Domicil may be established in different ways, but two
of which are involved in this case — domicil of origin and
domicil of choice. It is conceded that the decedent had a

' In re Tootal's Trusts, 23 Ch. Div. 532.

138 I EXTRATERRITORIAL CASES.

domicil of origin in Waldo county. That domicil continued,
whatever the wanderings of the decedent, until he acquired
a new one in some other locality. In order to establish a
domicil of choice evidence of three important facts must
appear: (1) abandonment of domicil of origin; (2) selec-
tion of a new locus; (3) the animus manendi. Technically,
proof of (2) and (3) necessarily establishes (1). Putting
these facts in the form of a definition,

"Domicil is said to be the habitation fixed in any place, without
any present intention of removing therefrom." "

While the term "domicil" seems to possess more or less
elasticity, there can be but one domicil of testacy or in-
testacy. It is the latter sense in which it will be here
treated.

W^e deem it unnecessary to consume much time in dis-
cussing the questions of fact. The evidence shows that the
decedent was in Waldo county but once from the time he
left it to the time of his death. In 1866 he returned to
visit his father and mother, only to find that they had
changed their residence to the state of Virginia. He had
now neither property nor relatives left in this county. That
he abandoned, and intended to abandon, his domicil of
origin is too apparent to require comment. It is also es-
tablished that he made his home, established his business
and had his headquarters, from 1869 to the date of his death,
in Shanghai, China. In fact the evidence in the case does
not tend to show that during these years he permanently
resided at any other place. We therefore find no trouble
in determining that he selected Shanghai as his place of
business and residence after 1869. While there is more or
less conflict in the testimony respecting his intention to
remain in Shanghai indefinitely, it cannot be reasonably
declared upon the evidence that he had any present inten-
tion of removing from Shanghai or of coming back to the
state of Maine. In other words, the court is of the opinion
that had Henry H. Cunningham resided in England, France,
or any other state in the Union, from the time he left Belfast

Oilman v. Oilman, 52 Me. 165, 83 Am. Dec. 502.

MATHER ET AL. V. CUNNINGHAM, APR. 15, 1909. 139

until the date of his death, under precisely the same cir-
cumstances that are found in connection with his residence
at Shanghai, it would clearly appear that he had acquired
a domicil of choice in either one of these localities where he
had so resided.'^ The animus et factum concurred, and the
forum novum was substituted for the foru/m originis.

The facts being sufficient to establish the domicil of the
decedent upon the soil of any foreign country, including
that part of China not affected by treaty relations,* we now
come to a new and more difficult problem: Can an Amer-
ican under any circumstances, whatever the facts, acquire,
as a matter of law, a domicil in Shanghai, China, a place
where, by treaty, American law is substituted for the Chi-
nese local laws? Altho the decedent may have abandoned
his domicil of origin, so far as his acts and intentions were
concerned, yet it is conceded, if he was prevented by law
from acquiring a domicil of choice, that his domicil of
testacy or intestacy would continue from necessity to be
that of origin. Therefore the case finally turns upon the
question whether the decedent could, as a matter of law,
acquire a domicil in Shanghai. This proposition raises two
important questions: (1) whether any good reason can be
adduced from all the circumstances of the case why the
usual law of domicil should not be applied to the decedent's
residence in Shanghai; (2) whether any decision or rule
of law, admitting all the facts of domicil intervenes to
inhibit the acquisition of such domicil. The first question
involves, in limine, the effect upon the government and
territory of Shanghai of .the treaty relations between this
country and China. These relations have been so clearly
expressed in the English case,^ that we adopt the following
paragraph as a statement of their character:

"The treaties do not contain any cession of territory so far as re-
lates to Shanghai, and the effect of them is to confer in favor of
British subjects special exemptions from the original territory juris-
dictions of the Emperor of China, and to permit them to enjoy their

^Harvard College v. Gore, 5 Pick. (Mass.) 370.

* The treaties apply equally to all Chinese territory. Ed.

'/« re Tootal's Trusts 23, Ch. Div. 532.

140 I EXTRATERRITORIAL CASES.

own laws at a specified place. Similar treaties exist in favor of
other European governments and the United States."

Of course laws have been enacted by all the governments,
including our ow^n, to carry into effect upon the territory
involved, the treaty relations of the parties to the conven-
tion, but the broad fact that the treaty territory is exempt
from local lav^, and under the rule of foreign lav^, raises
all the questions that can affect the establishment of dom-
icil upon treaty soil. We need not then inquire concerning
the acts of Congress. To this situation is to be applied
the \aw of domicil, its meaning, the reasons for it, its
purpose.

To apply the law correctly we must first determine pre-
cisely what we mean by the term "domicil." While it is
asserted in some courts that there may be two or more
domicils, it is yet true that there can be but one governing
the settlement of estates. We have already referred to the
elements of domicil, the animus et factum, but have not
determined whether they must concur with reference to a
community, or with reference to a locality, in order to
establish domicil; but we are clearly of the opinion that
domicil in no case can be asserted independent of locality.
It expresses but little relation to society or community.

"The term 'inhabitant,' as used in our laws and in this statute,
means something more than a person having a domicil. It imports
citizenship and municipal relations, whereas a man may have a
domicil in a country to which he is alien, and where he has no
political relations. As if an American citizen should go to London
or Paris with an intention to remain there in business for the rest
of his life, or if an English or French subject should come here with
the same intention, they would respectively acquire a domicil in the
country in which they should so live, but would have no political
relations except that of local allegiance to such country." "

"The idea of domicil, independent of locality, and arising simply
from membership of a privileged society, is not reconcilable with the
numerous definitions of domicil to be found in the books. In most,
if not all of those from the Roman Code to Story's Conflict, domicil
is defined as a locality — as the place where a man is, his principal

Harvard College v. Gore, 5 Pick. (Mass.) 370.

MATHER ET AL. V. CUNNINGHAM, APR. 15, 1909. 141

establishment, the true home. But it is useless to pursue the topic
farther. Their Lordships are satisfied that there is neither principle
nor authority for holding that there is such a thing as domicil aris-
ing from society and not connected with a locality." '

This conclusion is in full harmony with the well-settled
doctrine in this country. That is, ordinarily speaking, if
a person has left his domicil of origin and selected another
locality, whether in another state or a foreign country, in
which his home is located and his business established,
without any intention of leaving, that locality is his dom-
icil. It, therefore, appears that "domicil" in its usual
sense does not present a complex or difficult problem. Or-
dinarily it is a pure question of fact. * *

"No exact definition can be given of domicil. It depends upon
no one fact or combination of circumstances, but from the whole
taken together, which must be determined in each particular case.
It is a maxim that every man must have a domicil somewhere, and also
that he can have but one. It follows that his existing domicil con-
tinues until he acquires another, and, vice versa, by acquiring a new
domicil he relinquishes his former one. * Very slight circumstances
must often decide the question. It depends upon the preponderance
of the evidence in favor of two or more places, and it often appears
that the evidence of facts tending to establish a domicil in one place
would be entirely conclusive were it not for the existence of facts
and circumstances of a still more conclusive and decisive character,
which fix it beyond question in another." '

Therefore it is plain that it is the place, not the local laws,
that becomes of paramount importance in determining the
question of domicil; where, not under what laws, do the
animus et factum concur.

There are now 47 states in the Union, nearly all differing
in some respects with reference to the laws of descent, the
right of inheritance, and the distribution of estates; but, in
whatever state the decedent may be found, to determine his
domicil no inquiry is made as to what laws shall govern the
settlement of his estate, but where did he have a permanent
abode. The same is true of the laws of Great Britain.
England, Scotland, Ireland, and Wales, each has its own
peculiar laws governing the descent and distribution of

In re Tootal's Trusts, 23 Ch. Div. 532.
'Thorndike v. City of Boston, 1 Mete. (Mass.) 242.

142 I EXTRATERRITORIAL CASES

property, yet these laws are never consulted upon the ques-
tion of domicil. The place is the issue." * * *

Now, then, if the true legal meaning of domicil is to fix
a locality, what is the reason for the law? Why may not
an estate be settled wherever the owner happens to de-
cease? The reason is manifest. It is to establish stability
and certainty with respect to the place where estates are
to be settled. Otherwise great confusion and numerous
difficulties might follow an attempt to settle in distant local-
ities in which the decedent might happen temporarily to
reside. It has therefore from reason and necessity been
declared that all estates must be refen^ed to some locality.
For the purpose of making the place definite and certain,
it has been established as a rule of law that it shall be
the soil where, at the time of decease, a person has a per-
manent abode, without any intention of removing therefrom.
While the determination of domicil refers the settlement of
an estate to a particular locality, it necessarily subjects it
to the laws of that locality ; but the underlying reason for
the law of domicil is not to subject an estate to any par-
ticular law, but to fix its abode.

But it is forcibly urged that the term "domicil" neces-
sarily implies subjection and obedience to the local laws,
and that this cannot be said to be true of a residence in
Shanghai. The first part of the proposition is admitted,
but the conclusion is not conceded. No good reason ap-
pears in support of it. What is meant by local laws? Un-
doubtedly that code of laws which governs the affairs of
a certain prescribed jurisdiction. The laws of Maine are
limited in authority to the territory of Maine. They have
no force beyond the state line. They are strictly local.
The same is true of the jurisdictional limitations of every
foreign state; that is, the local laws are considered to be
limited to the territory over which their jurisdiction ex-
tends. The ownership of the soil, therefore, controls the
establishment of all local laws. Without consent of the
owner, no extraterritorial law can be enacted within an
independent jurisdiction, or extended to it. China is in-
dependent. * * *

Dr. Munroe's Case, 5 Madd. 379.

MATHER ET AL. V. CUNNINGHAM, APR. 15, 1909. 143

"The sovereignty over the soil of Shanghai remains vested in the
Emperor of China with this exception : That he has by the treaty
bound himself to permit British subjects to reside at the place, for
the purpose of commerce only, without interference on his part, and
to permit the British Crown to exercise jurisdiction there over its
own subjects, but over no other persons." ^"

This description applies equally to the American treaty.
Therefore whatever laws may have been extended by Con-
gress to Shanghai are operative, not upon American soil,
but upon the territory of the Chinese Empire. How do
these laws reach there? By treaty, permission of the Em-
peror.

Now it will probably be admitted that, had the Emperor
extended by edict to this territory the identical enactments
now governing Americans residing there, a Chinese domicil
could be acquired under the laws thus promulgated. It is
true that, instead of an edict declaring the law, the Em-
peror by consent permitted Congress to extend its statutes
to the government of Americans in this treaty port. In
other words, if the identical laws which now govern Amer-
icans upon this territory had been promulgated by edict,
instead of permitted by treaty, the estate of the decedent
would, without question, have been conceded a domicil in
Shanghai. Now, then, as a practical question, what logical
reason can be given for declaring the existence of domicil
in the one case and not in the other? The decedent would
have lived under precisely the same laws and upon the
same foreign soil. Altho the Emperor had suspended
some of the Chinese laws and permitted the extension of
American law to the territory, yet the source of the law
was the Emperor, who had never released his sovereignty
over the soil.

Upon this point we quote from an able article '' by Prof.
Huberich of Stanford University. In his analysis of Mr.
Justice Chitty's opinion, he says :

"It is quite immaterial that the Chinese law provides that persons
of British nationality shall be governed by the rules of law prevail-
ing in England, or by such laws as may be enacted and made ap-
plicable to them by the English authorities. The English law is

'"In re Tootal's Trusts, 25 Ch. Div. 532.
" Law Quarterly Review, XXIV, 444.

144 I EXTRATERRITORIAL CASES.

operative in Shanghai as to certain persons and certain transactions
only because it is permitted and adopted by the territorial sovereign."

The effect, also, of declaring domicil upon Chinese soil
would be precisely the same whether the law governing the
locus was Chinese or American. In either case it would
be the law that covered that particular locality with respect
to Americans, and, as to them, would become the local law.

It would appear, then, that the only reason assigned for
withholding from the decedent the right of Chinese domicil
is that, while he lived upon Chinese soil, under Chinese
sovereignty, he was subject to the laws extended to the
particular territory by treaty instead of by edict. We are
able to discover neither logic nor reason for the distinction
here suggested. The fundamental idea of domicil does not
depend upon any distinction with respect to the source of the
local law. A Chinese domicil gives the decedent's estate
a fixed place of abode, and subjects it to the law governing
the locality. Whether American law or Chinese law, it is,
nevertheless, the law of the place, as to American citizens.

Prof. Huberich states it this way :

"Where the requisite factum and animus are shown to exist there
is no valid reason why an Englishman or an American should not be
held to acquire a domicil in China. In respect of all matters which
private international law refers to the law of the domicil he would
be governed by the Chinese law, the law of the territorial sovereign.
The law to which he would be subject would be none the less the law
of China because it provides that persons of British and American
nationality shall be governed by such laws as their respective coun-
tries may enact to govern their nationals in China."

In the case before us the effect of denying a Chinese
domicil absolutely defeats the will of the testator and
diverts the transmission of his property into unintended
and perhaps objectionable channels. On the other hand,
no inequitable result can be reasonably predicted upon
the declaration of such domicil. No injury can fol-
low. The estate, if testate, is disposed of in accordance
with the terms of the will, precisely as it would be
here. That the will was attested by but two witnesses
instead of three, as required in Maine, is immaterial to the

MATHER ET AL. V. CUNNINGHAM, APR. 15, 1909. 145

issue.^- If intestate, the property or the estate is legally
administered, as appears from the opinion ^^ of L, R. Wilfley,
Judge of the United States Court for China.

In fine, in considering the reasons why the American law
of domicil should not apply to American nationals in Shang-
hai, under the circumstances of this case, the court is unable
to discover any substantial objection, nor has any been
pointed out in any cited case. Jacobs in a brief summary
of his analysis of Justice Chitty's opinion, pertinently sug-
gests that no reasons are assigned even in this case, which,
by dictvmi, squarely denies the right of Chinese domicil.

"Here, then, we have, according to the uncontradicted evidence (1)
complete abandonment of English domicil of origin; and (2) residence
in China With, intention to remain there permanently. If this case
is to be accepted as an authority upon this point, therefore, something
more is necessary for the establishment by an American or a European
of his domicil in a country in which European civilization does not
prevail than abandonment of his domicil of origin, and mere residence
with intention to remain permanently. What more is necessary has
never been pointed out, altho, doubtless, as Dr. Lushington intimates,
a change of religion would be deemed sufficient." "

The suggestion hinted at by the author, touching the effect
of religion upon the domicil of American and European
nationals in the East, is based upon a dictum in a passage
in which Lord Stowel says:

"In the western parts of the world alien merchants mix in the
society of the natives, access and intermixtures are permitted, and
they become incorporated to almost the full extent; but in the East,
from the oldest times, an immiscible character has been kept up.
Foreigners are not admitted into the general body and mass of the
society of the nation; they continue strangers and sojourners as all
their fathers were." *^

"Lyon V. Ogden, 85 Me. 374, 27 Atl. 258.

'^In re Roberts,' Will, May 15, 1907.

In this connection it may be proper to add that the record shows
that 108 estates, testate and intestate, have been administered thru
the Consular Court at Shanghai since 1865.

" Jacobs, Domicil, sec. 361.

"The Indian Chief, 3 C. Rob. Adm. 29.

Dicta of a similar import are found in Maltas v. Maltas, 1 Rob.
Ecel. 67-80, and In re Tootal's Tioists, 23 Ch. Div. 532.

14008 O. W. 10

146 I EXTRATERRITORIAL CASES.

In the cases cited the doctrine of immiscibility applies
both to presumptions of law and fact. Mr. Justice Chitty
defines the doctrine as follows :

"The difference between the law, manners, and customs of Chinese
and Englishmen is so great as to raise every presumption against
such a domicil." "

That is, an American may marry a Chinese woman, es-
tablish his business upon Chinese soil, accumulate a fortune
there, raise a family, and declare his intentions of ever
remaining, yet the influence of religion and customs of the
community in which he has chosen to live and die is pre-
sumed to be so repugnant to the idea of western civilization
as to rebut all evidence of intention, however conclusive.
The opinion of the learned justice, however, concedes that
if the strong presumption against intention could be over-
come, a domicil of choice in China might be acquired. We
think it can be overcome.

In this enlightened age the doctrine of immiscibility can-
not be accorded such weight as to establish a legal pre-
sumption against all other evidence tending to prove animus.
In American jurisprudence, at least, it should be allowed
to slumber with Quaker persecution, Salem witchcraft, and
other kindred dogmas. Since the dictum of immiscibility
was first declared, the world has experienced a revolution
touching the national, commercial, and trade relations be-
tween the nations of the East and those of the West. Our
conclusion, therefore, upon the first proposition is that no
sound reason can be adduced against the practical applica-
tion of the American law of domicil to Americans residing
in China, when the animus et factum are found to concur.

This brings us to the second general proposition involved
in the discussion : Is there any established principle of law
which intervenes to prevent the practical application of the
rules of American law of domicil to Americans residing in
China? This precise point, so far as we are able to dis-
cover, has never been decided by any court of last resort.
It has, however, been recently discussed and decided in the

In re Tootal's Trusts, 23 Ch. Div. 532.

MATHER ET AL. V. CUNNINGHAM, APR. 15, 1909. 147

negative by L. R. Wilfley, Judge of the United States Court
at Shanghai, China.

The leading authority upon this issue is the English
case/' decided in 1883, in an opinion by Mr. Justice Chitty.
It is, perhaps, fair to say that while the decision upon the
point was pure dictum, it nevertheless, in legal effect, denies
the possibility of a domicil of choice by a British subject.
The issue presented to the court in this case involved the
question of an Anglo-Chinese domicil. The real issue as
stated by Mr. Justice Chitty is : "On principle, then, can an
Anglo-Chinese domicil be established?"

Following the analogy of the early English cases, estab-
lishing an Anglo-Indian domicil for English subjects, resid-
ing in India as members of the old East India Company, it
was urged that an Anglo-Chinese domicil might be estab-
lished for Tootal, an English subject who had lived in China
with the animus et factum required to establish domicil;
therefore the direct issue of Chinese domicil was not in-
volved, and the case is not discussed by the learned justice
from that standpoint, as appears from the following quota-
tion from his opinion :

"In these circumstances it was admitted by the petitioners' counsel
that they could not contend that the testator's domicil was Chinese.
This admission was rightly made. The difference between the re-
ligion, laws, manners, and customs of the Chinese and of Englishmen
is so great as to raise every presumption against such a domicil, and
brings the case within the principles laid down by Lord Stowell in
his celebrated judgment." ^'

From this paragraph it will be observed that the question
of Chinese domicil was, by express admission of counsel,
eliminated from the case. The discussion after this ad-
mission was upon a question not in issue, and necessarily
pure dictum, as it was not in any sense essential to the
decision of the case. But the statement of Mr. Justice
Chitty immediately following this admission is the remark
upon which he has established the legal impossibility of

"In re Tootal's Trusts, 23 Ch. Div. 532.

"The Indian Chief, 3 Rob. Adm. 29, and by Dr. Lushington in
Maltas V Maltas, 1 Rob. Ecc. 67, 80, 81.

148 I EXTRATERRITORIAL CASES.

acquiring a Chinese domicil, and is therefore founded upon
dictum, and dictum alone.

In the Indian Chief Case, Lord Stowell was considering
the question of the condemnation of a ship and cargo. The
ship was charged with the offense of trading with the public
enemy. The case involved the question of enemy character
as determined by residence and protection. The determina-
tion of these questions did not in any sense involve the
capacity of either party to acquire a residence in a foreign
country. Yet upon these facts is based the opinion of Lord
Stowell, in which he speaks of the "immiscibility" of char-
acter in the paragraph already quoted as a reason why an
Eastern domicil cannot be acquired by a British subject,
and to which Mr. Justice Chitty alludes as a precedent for
his conclusion. In the case ^^ decided by Dr. Lushington,
the question was as to the rule that should govern the de-
scent of the personal property of John Maltas who died in
Smyrna. One of the questions discussed was whether the
testator had acquired a residence in Smyrna ; he having had
a domicil of origin in Great Britain. While this question
was alluded to, it is apparent from a most cursory examina-
tion that the question of domicil was in no sense involved
in the case. With reference to the question of domicil the
court summed up its conclusions as follows :

"I wish to observe that I am desirous not to be supposed to have
given an opinion upon any question not necessary to be decided in
this case; my judgrment, therefore, does not affect the question of
domicil.

"I give no opinion, therefore, w^hether a British subject can or
cannot acquire a Turkish domicil; but this I must say: I think every
presumption is against the intention of British Christian subjects vol-
untarily becoming domiciled in the dominions of the Porte."

Yet the last part of this paragraph is the passage cited
as a precedent.

It is obvious then that the extracts cited from these cases
as precedents are themselves pure dicta. It as manifestly
follows that Mr. Justice Chitty's discussion upon the ques-
tion of Chinese domicil was not only dictum itself, but
founded upon dictum. The cases, therefore, upon which he

Maltas V. Maltas, 1 Rob. Ecc. 67.

MATHER ET AL. V. CUNNINGHAM, APR. 15, 1909. 149

relies for his conclusion by no means justify the statement
that "the difference between the religion, laws, and manners
of the Chinese and of Englishmen is so great as to raise
every presumption against such a domicil," and Tootal's
Trusts cannot be regarded as an authority for denying, as
a presumption of law, the incompetency of acquiring a
Chinese domicil.

We agree, however, with Mr. Justice Chitty upon the
real issue before him for decision. An Anglo-Chinese dom-
icil would certainly be of immiscible character. The
Anglo-Indian domicil was so regarded by Mr. Justice Chitty
himself who says of the cases establishing the doctrine:

"These authorities are generally admitted to be anomalous. While
they may be regarded as anomalous in an attempt to establish a
double domicil, a thing unknown to any rule of law and impossible
in practice, they may be made, by a fair analysis, precedents in fact,
if not in name, for a straight Indian domicil in the anomalous cases
considered, and for a straight Chinese domicil in the case at bar."

It its practical application, what does Anglo-Indian mean?
It is simply the invention of a name. No new feature except
the name appeared in any of these cases that did not com-
port with all the general rules of acquiring a domicil in
India. In alluding to this compound domicil Baggallay,
L. J., remarks :

"There are some anomalous cases in which a subject of the Queen
had entered into the service of the Old East India Company, and it
was held that he had acquired what was called an Anglo-Indian dom-
icil." =«

The phrase "what was called an Anglo-Indian domicil" is sig-
nificant, and disclosed that, in the mind of the learned
justice, no such domicil could be legally said to exist. It
appears, as already stated, that the Anglo-Indian domicil
was declared upon the ground that the East India Company
was a permanent institution in India, and that those persons
who entered its employ were, vpso facto, presumed to have
abandoned their domicil of origin and to have become per-
manently located in India.

Cotton, L. /., in the same case, takes emphatic exception

^'' Ex parte Cunningham, In re Mitchell, 13 Q. B. Div. 418.

150 I EXTRATERRITORIAL CASES.

to the elements of fact which the old cases declare are
capable of constituting an Anglo-Indian domicil. He says :

"It is said that a Scotchman by entering the service of the East
India Company acquired an Anglo-Indian domicil. I take exception
to the expression 'by entering the service' of the East India Company.
The ground of the decision in those cases was that the officer was
residing in India under circumstances which showed that he intended
to abandon his domicil of origin, under circumstances which rendered
it his duty to reside there permanently. It was not the entering the
service, but the residence in India under circumstances which required
him to remain there, which caused the change of domicil."

This is really what was said by Wood, V. C. :

"When an officer accepts a commission or employment, the duties
of which necessarily require residence in India, and there is no stip-
ulated period of service, and he proceeds to India accordingly, the
law, from such circumstances, presumes an intention consistent with
his duty, and holds his residence to be animo et facto in India." "

In other words, the learned justice eliminates the East
India Company, which made whatever domicil was acquired
dependent, not upon the East India Company at all, but
upon a permanent residence in India. But eliminating the
East India Company eliminates the component "Anglo"
from Anglo-Indian, and leaves the Indian domicil only.
The logic of these cases is that "Anglo-Indian" was a mis-
nomer, as duty cannot be considered superior to volition in
power to fix intention.

On the other hand, the whole trend of modern authority
is in opposition to the dictum advanced in Tootal's Trusts.
Judge Wilfley of the United States Court for China sitting
at Shanghai in 1907, announced a strong opinion -- in which
he rejects the dictum in Tootal's Trusts and comes to a
directly opposite conclusion. The facts in the case are very
similar to those in the case at bar. After an elaborate and
exhaustive review of the authorities and text-writers, he
comes to the conclusion :

1. "That there is nothing in the theory or practical operation of
the law of extraterritoriality inconsistent with or repugnant to the
application of the American law of domicil to American citizens re-

" Forbes v. Forbes, Kay, 356, 23 L. J. Ch. 724.
° In re Allen's Will, (inte, p. 92.

MATHER ET AL. V. CUNNINGHAM, APR. 15, 1909. 151

siding in countries with which the United States has treaties of
extraterritoriality.

2. "That Dr. Young J. Allen, having lived in China for a period
of 47 years, and having expressed his intention to live there perma-
nently, thereby acquired an extraterritorial domicil in China; con-
sequently this court in the administration of his estate will be guided
by the law which Congress has extended to Americans in China, which
is the common law."

We wish to say however that we do not agree with Judge
Wilfley in employing the name "extraterritorial domicil."
It appears to be inconsistent with the fundamental idea of
domicil, which, as we have endeavored to show, is a rela-
tion between an individual and a particular locality or
country. The fact that the law governing the particular
locality is extraterritorial does not make the domicil extra-
territorial, since it is immaterial upon the question of
domicil from what source the law is proclaimed, as before
shown.

This same view is taken by Prof. Huberich in the article
already alluded to, in which he says :

"The choice of the words 'extraterritorial domicil' is unfortunate,
in that it is likely to convey the idea of exemption from the laws of
the territorial sovereign."

Sir Francis Piggott, Chief Justice of Hongkong, in a
recent work, expresses the opinion

"that when the question is again raised it will be found that the
principles established by the most recent cases necessitate a re-
consideration of the law laid down on the subject by Mr. Justice
Chitty."

"A man may set up his home in a treaty port; he may have
banished forever the idea of returning to his native country; the
animus manendi may be clear, without shadow of doubt; on the hy-
pothesis, too, there is a body of law regulating the community. Why
is it impossible, then, for the ordinary principles of the law to be
applied, and for the personal relations of the permanent members of
the community to come under that law permanently as the law of the
domicil of their choice, of those who are born members of the com-
munity as the law of the domicil of their origin? * * * Linking
these two propositions together, it is suggested that the inevitable
result is a modification of Lord Watson's interpretation of the law

152 I EXTRATERRITORIAL CASES.

of domicil referred to above on the following lines: The law which
regTilates a man's personal status must be that of the governing
power in whose dominions his intention is permanently to reside,
or must be so recognized and established by that governing power
as to be in fact the law of the land." "

Lord Watson's interpretation was that domicil must be
referred to locality, and not community.

Hall, a distinguished authority on international law, also
takes issue with the views expressed in Tootal's Trusts upon
the ground of expediency, and says:

"It is perhaps to be regretted that a change in the law is not made,
which a short Order in Council could easily effect. Anglo-Oriental
domicil has its reasonable, it may almost be said its natural, place." ^'

This suggestion clearly shows that in the opinion of the
learned author the doctrine of immiscibility, which has
been made the fundamental objection to the possibility of
an Eastern domicil, should no longer be regarded as a
potential reason for denying such domicil. He further says
upon the question of expediency :

"So long as persons have not identified themselves with the life
of a new community, they must keep each his own law; but, as soon
as they have shov^m their wish and intention to cut themselves adrift
from the association of birth, they prove their indifference to the
personal law attendant on their domicil of origin. There is therefore
no reason why simplicity and unity of law should not be gained for
British subjects by attributing community in the laws of England to
all of European blood. There is also every reason for avoiding very
grave difficulties of another kind which are opened thru in-
variable preservation of the domicil of origin. English families,
even in the present day, often remain thru more than one gen-
eration in oriental countries as their permanent place of abode. For-
merly the history of persons whose domicil might become a matter of
importance was generally known sufficiently well. Many are now
of obscure antecedents, and of an origin uncertain among the num-
erous places from which British subjects can derive. As no domicil
can be acquired in an Anglo-Oriental community, it becomes every
year more probable that cases will occur in which the determination
of the domicil of a father, perhaps of a grandfather, may become
necessary, and in which it may be equally impracticable to impute
an English domicil or to attribute any other with fair probability.

''Piggott, Exterritoriality (new ed. 1907), 232 et seq.
"Foreign Jurisdiction of the British Crown (1894), 184.

MATHER ET AL. V. CUNNINGHAM, APR. 15, 1909. 153

It would be a great advantage that in such cases there should be a
fixed rule which should correspond with the obvious facts, and that
the courts, instead of searching with infinite trouble and expense for
an ancestral domicil, should be enabled to find that a domicil had
been acquired in the Eastern country which carried with it the ap-
plication of English law."

Prof. Huberich upon this point says :

"The English view, it is submitted, i? based on erroneous con-
ceptions of domicil and extraterritoriality. It is supported by the
authority of a single case (Tootal's Trusts), has been vigorously at-
tacked, and may be repudiated by courts not bound by the precedent."

In reviewing Judge Wilfley's opinion, he says:

"The result of the case is correct."

Westlake takes the same view and points out the incon-
sistency of the opinion in which Mr. Justice Chitty declared :

"There is no authority that I am aware of in English law that
an individual can become domiciled as a member of a community which
is not the community possessing the supreme or sovereign power."

having said in the same connection:

"Jt may well be that a Hindoo or Mussulman sitting in British
India, and attaching himself to his own religious sect there, would
acquire an Anglo-Indian domicil."

Westlake says:

"The Hindoos or Mussulmans are as little the supreme or ter-
ritorial power in India as the English are such in China." "

This discrepancy serves to point out the complexities that
arise in an attempt to deny or modify the application of
the national and established rules of law.

The theory of this opinion is in accordance with the
application of the ordinary rules of law touching the ques-
tion of domicil. We have found no difficulty, and discover
no error, in referring the existence of domicil to locality.
We allude to this matter for the purpose of avoiding any
confusion which might rise in reading the text-writers cited
in connection with the opinion. While they all advocate
the legal propriety of holding that an American national or
an English national may acquire a domicil in a treaty port,
they suggest, if we interpret them correctly, that such a

Private International Law (4th ed.), 319.

154 I EXTRATERRITORIAL CASES.

domicil may be referred to community rather than locality.
The reference of Sir Francis Piggott to "a modification of
Lord Watson's interpretation of the law of domicil" relates
to this precise point. We concur in the result of their con-
clusions, but not in the method of reaching it.

Upon both reasons and authority we are of the opinion
that the domicil of the decedent, living in a country that
granted extraterritorial privileges, should be determined by
the same rules of law that apply to the acquisition of dom-
icil in other countries. In support of this position we
refer to the reasons cogently and comprehensively expressed
in Judge Wilfley's opinion. In the language of Prof. Hu-
berich the result here reached, it is submitted,

"preserves intact the theory that domicil is a legal relation be-
tween an individual and a particular country, and involves a certain
submission to the laws of such country as the laws of the territorial
sovereign. It upholds the doctrine that each state is supreme over
all person? and things within the territorial boundaries. It does
away with an anomaly in the law of domicil, and enables the courts
to recognize the legal existence of a domicil where the facts and
intent ordinarily requisite are present." ■"

The court is of the opinion that Henry H. Cunningham,
the decedent, at the time of his decease, had abandoned his
domicil of origin in Waldo county, Me., and had acquired a
domicil of choice in Shanghai, China. Therefore, in ac-
cordance with the stipulations in the report, the entry
must be:

Appeal sustained. Decree of the court below reversed.

IN THE UNITED STATES COURT FOR CHINA.
United States v. Thomas Jones.

[Criminal Cause, No. 31; filed May 4, 1909.]

SYLLABUS.

(By the Editor.)

1. EVIDENCE: CREDIBILITY. Chinese testimony must be weighed by
the same rules as any other.

^"Law Quarterly Rev., XXIV, 444.

UNITED STATES V. JONES, MAY 4, 1909. 155

2. Id.: The testimony of an accused must be considered with due al-

lowance foi' his interest.

3. Id. : Homicide. Evidence reviewed and found sufficient to convict

of involuntary manslaughter but not of murder.

Arthur Basset, Esq., U. S. Dist. Atty., for the prosecution.
W. S. Fleming, Esq., for the defendant.

Thayer, J.:

The information in this case charges that one, Thomas
Jones, a citizen of the United States, on or about March
20, 1909, in the City of Chefoo, China, did feloniously, will-
fully and of malice aforethought, make an assault on one
Kung Ch'ing a Chinese subject; that he did then and there
feloniously, willfully and of malice aforethought discharge
a pistol at the said Kung Ch'ing, thereby inflicting upon
the said Kung Ch'ing a mortal wound, from the effects of
which the said Kung Ch'ing died on March 27, 1909, and
that in the manner and form aforesaid, the said Thomas
Jones did feloniously, willfully and of malice aforethought
Mil and murder the said Kung Ch'ing.

The crime charged is the common law crime of murder
which corresponds to the statutory crime of murder in the
first degree as defined in the statutes ^ of the United States
when committed in a place over which the national govern-
ment has lawful and exclusive jurisdiction.

Preliminary hearings were had before the American Vice
Consul at Chefoo and the defendant was by that officer
committed to this Court for trial on said charge. Sub-
sequently on April 14, 1909, the District Attorney filed the
information in substance as above recited. Upon arraign-
ment the defendant plead "Not guilty."

The corpus delicti was fully established by the attending
physician who saw the wounded man very shortly after
he received the shot, removed the bullet at once without
difficulty, and attended the patient until the time of his
death. He also performed a post mortem examination on
the afternoon of the death, which occurred at four o'clock
in the morning of March 27.

' Federal Penal Code, sec. 273-275. Ed.

156 I EXTRATERRITORIAL CASES.

There is no question that the wound was inflicted by a
gun shot, and that said wound was the cause of death.
Analysis of the testimony discloses only a few points of
serious conflict, reference to which will be made later. The
facts established by the testimony without denial or dispute
are that at the time he received the wound the deceased
w'as in a sampan near what is known as the "jetty," the
ordinary landing place in Chefoo of passengers going to
or from ships in the harbor. The exact position of the
sampan at the time the wound was received is in dispute
and the testimony relating thereto will be discussed later.

Undisputed testimony shows that at the time Kung Ch'ing
received the wound the sampan was occupied by himself,
one Hsuen, the first Chinese witness for the prosecution,
and one Chinese passenger, whose name does not appear;
that upon receiving the wound the victim made an outcry
and collapsed in the sampa^i, and that the boat was brought
quickly to the jetty and the wounded man was taken out
and put in a ricsha and conveyed thence to a point near the
foreign club; that his attendants were seeking the Amer-
ican Consul, who was met in the street near that point;
that the reason for going to the American Consul was that
they, the sampanmen who helped the wounded man ashore,
understood, or were informed, that the shot which had in-
flicted the wound had been fired by an American citizen,
and that the American Consul, as was his duty, immediately
took cognizance of the case.

It is also undisputed that the defendant, Thomas Jones,
was in the late afternoon of the day referred to, viz : March
20, 1909, on said jetty and near one of the two landing
places connected therewith; that he had in his possession
a small revolver, of the pattern known as a "Baby Brown-
ing," that the same was loaded with one or more charges
and that while the said Jones was on said jetty, near one
of the landing places, and while said revolver was in the
hand or hands of the said Jones, one shot was discharged
therefrom.

The attending physician who removed the bullet from
the deceased testified that it was a "small bullet" and he
called it a "Baby Browning." In giving this testimony

UNITED STATES V. JONES, MAY 4, 1909. 157

he quoted a remark by others to whom he exhibited the
bullet, which was quite obviously inadmissible testimony
at that time, but subsequent testimony of the same witness
showed that he was quite familiar with fire arms, and
other testimony makes it practically impossible to doubt
that the bullet discharged from the revolver held by Jones
was the identical one which inflicted the wound.

While the defendant testifies to facts and circumstances
which, if true, would relieve him from a verdict of wilful
murder, he does not claim or assert, nor does his counsel
claim or assert for him, that there is the slightest doubt
that the said wound was caused by the identical bullet
discharged on that day and place from the defendant's re-
volver. There is no proof that any other shot was fired in
that vicinity on or about that time, and the identity of
the bullet effecting the wounding of Kung Ch'ing with that
discharged from defendant's gun must be regarded as es-
tablished beyond a reasonable doubt.

The next material fact respecting which there is some
slight, tho, in the opinion of the Court, no material, con-
flicting testimony, is the time or exact hour when the shot
was fired. Dr. Gulowsen, in answer to question as to what
was the time when he first saw the wounded man, said it
was about four o'clock but later said "it might have been
as late as five o'clock" altho he did not particularly re-
member the hour. The several Chinese witnesses for the
prosecution do not fix with exactness the time when the
shot was fired but say that it was about four o'clock. The
defendant testified in detail as to his movements during the
afternoon of that day and produced corroborating tes-
timony tending to establish the fact that it was after five
o'clock when he reached the jetty. In fact some of his
corroborating witnesses testified respecting defendant's
movements in such way as would necessarily have brought
the defendant to the jetty at a much later time than that
at which the defendant himself admits he reached the jetty
on the afternoon in question. But this conflict of testimony
is neither serious nor material. The time testified to by
the witnesses for the prosecution is not fixed with any pre-
cision as to the exact moment when the events occurred

158 I EXTRATERRITORIAL CASES.

and the question of time has no material relevancy with-
reference either to main questions of fact or to the cred-
ibility of any of the witnesses on either side unless it be
to the discredit of defendant's witnesses who outstripped
his own memory.

The next question relates to the location of the sampan
in which the deceased was standing at the time when he
received the mortal wound. We have on the one side the
testimony of the Chinese witnesses who were either in the
boat when Kung Ch'ing was wounded or on the jetty when
the shot was fired or in the sampan in which the defendant
afterward embarked. The Court visited the jetty upon the
request of the District Attorney, attended by the latter and
the defendant's attorney, and carefully observed the two
landings and their relation to each other and the immediate
surroundings of the jetty. The two landings are approx-
imately one hundred feet apart, measured by the eye. One
of them is at the north and one at the south. Between them
the jetty wall curves inward toward the shore. The tes-
timony of the first witness, Shen Chi, is that, at the time
the shot was received, the sampan in which Kung Ch'ing
was standing, had already left from the south landing and
had come forward on its way out and was a little south of
the north landing and away from the jetty a distance of,
as the witness expressed it, about the width of the room
in which the Court was sitting, which cannot be far from
15 feet, and was about parallel to the jetty. This witness
was in the sampan with Kung Ch'ing at the time. The
second Chinese witness, Li Pao Jen, testifies that he was
standing on the jetty two or three steps from the north
landing when the shot was fired, that, the sam/pan in which
Kung Ch'ing stood was then a little to the south of the
north landing, and, on cross-examination, that the sampan
had pushed off from shore, not far from the jetty at the
time of the shot, a distance of two or three paces. The
third Chinese witness, Li Ch'iu, was not questioned directly
on this point, either on his direct or cross-examination. He
testifies that he was standing on the jetty about five or six
paces from the foreigner at the time the shot was fired,
and the sampan was so near him that he observed the

UNITED STATES V. JONES, MAY 4, 19 09. 159

collapse of Kung Ch'ing when the latter received the wound.
The fourth Chinese witness, Hsiao Pao Shan, was not in a
position to see the Kung Ch'ing sampan at the time the
gun was fired, but he saw it near the jetty immediately
afterwards.

The fifth Chinese witness, Wang Sai Yuan, was the sam-
panman in whose boat the defendant was taken to the
lightship. He testifies that he was close to the north land-
ing when the shot was fired and that Kung Ch'ing's sampan
was, at that time, very near his boat and a little to the
southward.

Defendant testifies that he did not see any sampan less
than twenty or thirty paces from the jetty except the one
in which he subsequently embarked and that none were near
to the jetty during the time of his arrival there and his
embarkation except that which took him out to the light-
ship a few minutes later. In other words, on this point,
he flatly contradicts the testimony given by the Chinese
witnesses, who also testify respecting the firing of the shot,
the circumstances under which it was fired, the position of
defendant's arm when the gun was discharged and all the
attending circumstances. This testimony is all very direct
and tends to establish that the defendant, after reaching
the jetty, beckoned to the sampan in which were Kung
Ch'ing and Shen Chi and one Chinese passenger, who had
just pushed off from the south landing, and were then a
little south of the north landing. This sampan paid no at-
tention to defendant's signal. The defendant then beckoned
to a second sampan nearby, which also ignored his signal.
He then drew from his pocket a pistol or gun and fired one
shot, with arm extended, in the direction of Kung Ch'ing's
sampan, and immediately returned the pistol to his pocket.

The first Chinese witness, Shen Chi, was in the boat
with Kung Ch'ing. His back was toward the defendant
when the shot was fired, but he heard the shot and turned
and saw the defendant returning the gun to his pocket,
a small part showing in his hand. The second Chinese
witness, Li Pao Jen, was standing on the jetty, near the
north landing, two or three steps from the defendant whorii,
he testifies, he saw beckon to the two sampaiis in succession ;

1QQ I EXTRATERRITORIAL CASES.

that he was angry and swore, or was in a fighting attitude,
and that he put his right hand in his pocket, pulled his
gun out, pointed and fired. The third Chinese witness, Li
Ch'iu, was also on the jetty standing a few steps distant
from the defendant when the shot was fired. He also tes-
tifies to the two signals made by the defendant to sampans,
which were ignored, to his apparent anger ; to his drawing
the gun from his pocket with his right hand, pointing it
toward the sampan of Kung Ch'ing; to hearing the loud
report, and to the return of the gun by the defendant to his
pocket. The fourth Chinese witness, Hsiao Pao Shan, was
also on the jetty at the time when the shot was fired, about
twenty paces back of the defendant, heard the shot but did
not see the gun, heard the shout that "this man had been
hurt" and went to the edge of the jetty. While the wounded
man was being carried up at the south landing the defend-
ant, he says, entered a sampan at the north landing and left.
The fifth Chinese witness, Wang Sai Yuan, was the sampan-
man who took defendant off to the lightship after the gun
was fired. He testified to hearing the shot and to seeing the
defendant's arm extended. All of these witnesses also tes-
tified to seeing the wounded man, either immediately after
he was shot or shortly after, when he was helped out of
the sampa7i at the south landing.

The defendant testifies that he went to the jetty some-
what after five o'clock of the afternoon of the shooting
for the purpose of making a visit to the Neuchwang Light-
ship ; that he had taken a walk earlier in the afternoon and,
before leaving for the walk, had put the "Baby Browning"
revolver in his right vest pocket as a protection against
vicious dogs ; that he forgot to remove the pistol from his
pocket when he returned to his bar and, on finding it in
his pocket shortly after getting to the jetty, took the weapon
out for the purpose of removing from it the clip which
contained the six or less bullets with which it was charged ;
that he did so out of abundant caution and in accordance
with his fixed habit of always unloading any gun he had
before going into any boat or sampan; that while engaged
in removing said clip one charge exploded — for what reason

UNITED STATES V. JONES, MAY 4, 1909. 161

he is unable to explain ; that there were no sampayis in the
line of the shot; that he saw the shot strike the waters
about sixty or ninety feet from the jetty. He denies that
he had any difficulty in securing a sampan or that he
beckoned to any which failed to respond to his signal.
He testifies that he saw no evidence that the shot had
taken effect; that the first sampan to which he beckoned
came promptly to the landing and that he left the latter
in entire ignorance that anybody had been wounded.

The theory of the defense is that, at the time when the
gun was discharged, the sampan in which Kung Ch'ing was
standing was not located near the jetty at the point testi-
fied by the several Chinese witnesses but at some place
somewhat more than sixty or ninety feet away and to the
left of the line of the shot but that the ball must have
ricocheted to the left from the point where it struck the
water and thus reached and wounded Kung Ch'ing.

If this testimony of the defendant is to be accepted, it
follows unavoidably that the testimony of the five Chinese
witnesses must be rejected as wholly and wilfully false.
In fact counsel for the defendant contends that it is utterly
unworthy of belief. His conclusion rests mainly upon
three propositions: (1) That the harmony of the state-
ments made by five Chinese witnesses must create a just
suspicion that they have been skilfully prepared and drilled
so as to be able to tell the same story; (2) That the Chi-
nese mind and point of view is such that in the case of every
Chinese witness a Court is bound to start with a pre-
sumption that the witness will not tell the truth; (3) That
this is a racial characteristic so pronounced and so well
established by authorities cited by counsel that this Court
is bound to take judicial notice of it and to be guided thereby
in determining the weight of evidence.

These propositions constitute most remarkable grounds
upon which to appeal to an American court to adjudicate
a cause under our system of law and procedure, the product
of centuries of slow growth. To yield to counsel's conten-
tion would compel such a departure from fundamental rules
of evidence as would shake the very foundation of our

14008 O. W. 11

1^2 I EXTRATERRITORIAL CASES.

system. The Court must treat the testimony of these sev-
eral witnesses with exactly the same deference to rules
of evidence as applies to witnesses of our own nationality,
applying the tests of credibility which are familiar and well
established. While the presiding Judge of this court is in
no position to deny differences in race characteristics, he
has not reached the point where he feels justified in making
any classification on the lines suggested by counsel and he
knows no law upon which he could rest such a classification
if he were inclined to make it. The Court easily recognizes
that these several Chinese witnesses belong to the lowest
class of Chinese laborers. They are coolies of small in-
telligence and it is assumed that they may have feelings
and prejudices and bias much the same as must be recog-
nized in the ignorant and uneducated man in every country.
It is quite possible that their points of view and their basis
of reasoning diff'er from those which characterize somewhat
similar classes in other and especially western nations. But
the Court will not accept the theory that they are incapable
of telling the truth. In weighing their testimony the usual
rules of evidence will be applied. The Court has little diflfi-
culty in accepting the testimony of these several Chinese
witnesses as substantially truthful and presenting the ma-
terial facts as they saw them or as they thought they saw
them.

But it does not follow that they may not have been mis-
taken as to some of the details which they recite. The
incident must have produced great excitement and disturb-
ance in the minds of each of these witnesses and it is not
at all unlikely that in the few seconds involved in the
handling of the weapon and in the firing of the shot, these
witnesses may have been mistaken as to what were the
exact movements of the defendant during this brief period
of time. It cannot be reasonably doubted that some of them
saw the weapon in his hand. The very nature of their
testimony on this point forbids any other conclusion. For
example they described the gun as a "very small gun."
Those who saw it, or claim to have seen it, saw but a very
short piece of the barrel extending beyond the closed hand

UNITED STATES V. JONES, MAY 4, 190 9. 163

of the defendant. This corresponds exactly with the very
peculiar and unusual weapon actually in the hand of the
defendant at that time. It was so short as to be easily
inserted in the vest pocket. It does not appear possible that
these Chinese witnesses, if they had been fabricating this
part of the story, could have selected and described this
particular weapon. The pistol is of an unusual type — so
much so that the defendant himself, tho specially familiar
with all forms of weapons, both as a sportsman and by
reason of his service in the Navy, claims that he had little
knowledge of its practical working. It would be unreason-
able to assume that these witnesses had any familiarity
with such a weapon. It would be almost, if not quite,
equally unreasonable to assume that any of the Chinese peo-
ple or officers here in Chef oo, who might be disposed to coach
these witnesses on such a matter of details, would have se-
lected such a weapon for description. It seems practically
certain that in such case the usual and common type of gun
would have been selected, and one with a much longer barrel,
which is easily observed by the eye and is conspicuous by
the length of its barrel.

The acceptance of the testimony of the Chinese witnesses
on this point and on the point of location of the sampans
at the time when the shot was fired, and of that part of their
testimony which relates to the general incidents connected
with the wounding of the victim and his removal from the
boat, involves unavoidably the rejection of the defendant's
statement as being wilfully untruthful in its essential
features. In reaching such a conclusion the Court not
only has a clear and unmistakable preponderance of tes-
timony but must take cognizance of the strong self interest
which would influence, if not dictate, the defendant's tes-
timony. In addition to this there are features of the de-
fendant's testimony which are so unreasonable, and so out
of harmony with usual events, as to satisfy the Court that
they cannot be a part of a truthful account of this incident.
He testifies, e. g., that one of the charges accidentally ex-
ploded while he was attempting to remove the clip. It is
not at all unreasonable that such an accidental explosion

164 I EXTRATERRITORIAL CASES.

could have occurred, tho the possibilities that it would occur
in the hands of a man familiar with handling weapons, such
as the defendant was, should have been small. But the
defendant is not content with making that simple statement.
He admits great surprise at the sudden explosion. Exercis-
ing the care to which he testifies his surprise must have
been all the more pronounced. Yet he testifies that he was
so calm and observing and so quick of eye that he saw
the shot from this small gun strike the water sixty or ninety
feet away from where he stood. Is this a statement such as
a reasonable mind can accept as either possibly or probably
true? All the testimony shows that this gun is a gun of
great power. The velocity of the bullet immediately after
discharge was very great. The merest fragment of a
second in time only could have been consumed after ig-
nition of the charge in the speeding of this bullet from the
gun to a point sixty or ninety feet distant. It seems prob-
able to the Court that before the sound of the explosion
was registered in the consciousness of the defendant this
bullet had largely sped its course.

Another striking example of defendant's lack of sincerity
and truthfulness occurs in his cross-examination :

Q. Now, in what direction from the jetty did the ball strike the
water as you saw it?

A. It went in front of me. I was in the corner of the steps and
there was no sampaji there. They were off to the left.

Q. How far from you did this ball hit the water?

A. I would say twenty or thirty paces. I did not measure it.

Q. Hov/ far from you were the sampans anchored?

A. I would say about fifteen or twenty paces.

Q. So the bullet from the gun you fired struck the water at a
greater distance from you than the sampans were anchored from you?

A. Yes, sir, and in a different direction.

Here the defendant permits himself to place the point of
first contact of the bullet with the water not only out of the
line of direction of the sampans but beyond their location.
To enable that bullet to reach and wound the victim Kung
Ch'ing, locating the sampan and the first point of contact of
the bullet with the water where the defendant places them,
would necessitate a ricochet at an angle from the point of

UNITED STATES V. JONES, MAY 4, 1909. 165

impact of considerably more than ninety degrees. The
Court knows of no authority which would allow it to accept
such a variation of the bullet as possible. Yet that identical
bullet reached and killed Kung Ch'ing. This fragment of
testimony indicates to the mind of the Court that the de-
fendant was ready to testify freely and recklessly in the
line of what he supposed to be his best defense but was
unable to perceive the logical difficulties into which this
testimony would precipitate him. The Court deems it un-
necessary to go farther in a detailed analysis of the tes-
timony. The above examples are not the only ones which
operate on the mind of the Court, but they are deemed suf-
ficient.

The Court now passes on to the grave duty of determining
the character of the offense committed by the defendant and
a consideration of the evidence which, in the judgment and
conscience of the Court, must determine that question. The
Court is unaided by a jury. It has imposed upon it the
duty of giving to the defendant the benefit of all reasonable
doubts and the presumption of innocence until the evidence
establishes his guilt beyond a reasonable doubt. As al-
ready stated nothing was observed in the bearing of the
Chinese witnesses which inspired any doubt of their truth-
fulness or of their desire to describe the events as they oc-
curred. However, the Court recognizes that they may have
been mistaken in some details and especially as to what
were the exact movements and attitude of the defendant
during that very brief period of time while the gun was in
his hands. Any witness, however intelligent and honest, in
the excitement of such a moment, conceives hurried impres-
sions which are only too likely, in common experience, to be
confirmed and turned into honest beliefs by succeeding
events which appear to be consistent with previous impres-
sions hurriedly formed. The guilt of the defendant in this
case, or the degree of his guilt, turns, in the opinion of the
Court, upon one simple question of fact, to be deduced from
the evidence in the record: Was the defendant's arm ex-
tended at the time when the shot was discharged? The
most of these Chinese witnesses testify that it was so ex-

166 I EXTRATERRITORIAL CASES.

tended. If this testimony is to be accepted as representing
the actual position of the defendant's arm at that time, the
fact thus established would disclose purpose and intent and
possibly compel the Court to adopt the common law rule of
implied malice to w^hich the District Attorney has directed
attention. The defendant claims that the shot was acci-
dentally fired while he was attempting to remove the clip
from the gun. Assume that it did so occur, What would
have been the movements of the defendant? While he was
actually engaged in removing the clip it seems quite certain
that both hands would have been engaged. But who shall
say what movement of the arm or arms might have been
made by a man in whose hands, while engaged in unloading
it, a chai'ge suddenly explodes? Might not his arm extend
itself with nervous quickness in any direction? And would
it not have been very easy for an observer, whose attention
was attracted by the explosion, to interpret it as preceding
rather than following the shot. Is it not possible, even for
an observer who was looking at a man, engaged as the
defendant claims to have been in removing this clip, and
the observer not knowing what the defendant was doing,
to have made a similar error in observation? These in-
quiries present to the mind and judgment of the Court the
most vital question in this case. Giving to the defendant
the benefits to which he is entitled under the law, the
Court is not satisfied, beyond a reasonable doubt, that the
defendant's arm was extended at the time when the gun
was discharged. In reaching this conclusion the Court has
not overlooked the evidence in the case which tends to show
that the defendant was angry. No witness heard him speak.
The utmost shown by the evidence was an appearance of
anger which was attributed to the failure of two sampans to
respond to the defendant's signal. The provocation, if as
alleged, was certainly slight and not ordinarily enough to
inspire murderous intent. It is these feelings of doubt, and
this sense of lack of reasonably conclusive proof of intent,
which control the judgment of the Court.

But it has no difficulty in reaching a conclusion that the
explosion of the charge in the hands of the defendant, which
wounded and caused the death of Kung Ch'ing, was due

EDWARDS V. GRAVES ET AL., OCT. 11, 1909, 167

to the criminal negligence of the defendant. The weapon
was recognized by the defendant as a dangerous one. By
his own statement he was familiar with fire-arms and ac-
customed to use them. The gun was his own and if, as he
alleges, he had not fully acquainted himself with its action,
that cannot excuse him. He attempted to unload this dan-
gerous gun on the public jetty, corresponding to a' public
street, and exercised so little care that a shot was exploded,
altho the weapon was specially designed against possible
accidental discharge and was provided with devices in-
tended to make its accidental discharge practically im-
possible.

It is the judgment of the Court that the accused is guilty
of involuntary manslaughter and the Court sentences the
said Thomas Jones, for the commission of the said crime,
to imprisonment for the period of three years in the jail
of the American consulate at Shanghai from May 4, 1909,

IN THE UNITED STATES COURT FOR CHINA.

Edward Edwards, Plaintiff, v. R. H, Graves et al,.
Defendants.

[Civil action No. 72; filed October 11, 1909,]

SYLLABUS.
(By the Editor.)

PLEADING: CAUSE OF Action: Tort or Contract. A petition aj-
leging breaches of a lease and praying damages "by reason of
the unlawful acts of the defendants as above set forth" sounds
in contract.

Arthur Basset, Esq., for plaintiff.

W. S. Fleming, Esq., for defendants.

Thayer, J.:

The plaintiff sets forth a lease, a copy of which is annexed
to the petition and made a part thereof. He alleges
breaches by the defendant lessors in two respects: (1) an
eviction of the plaintiff from the leased property before the

168 I EXTRATERRITORIAL CASES.

expiration of the term of the lease and (2) a conversion to
their own use of a certain sum of money which, under
the terms of the lease, the plaintiff had deposited with the
defendant lessors "as security for the execution of this
lease." Plaintiff alleges damages in a specified amount "by
reason of the unlawful acts of the defendants as above set
forth and alleged" and prays judgment therefor.

The defendants interpose a plea in bar, resting upon the
provision that

"Civil actions based on written promise, contract, or instrument must
be commenced within six years after the cause of action accrues;
others within two." *

It is contended that the action, in the form as brought, is an
action in tort and not based on "a written promise, contract,
or instrument" and that it must be classified as an action
in tort which could only be brought within two years after
the cause of action had accrued. More than four years
have elapsed since the alleged breaches occurred.

It does not appear that any criticism can be justly visited
on the defendants for submitting this plea in bar as it is
obvious that the plaintiff has not been very prompt in
asserting his claims and seeking a remedy. However, the
Court finds little difficulty in classifying the action, as
"on the contract" and not "in tort." The plaintiff,
in his petition (paragraph 12), alleges that he has been
damaged in the sum of $13,000 by reason of the
"unlawful acts of the defendants." That phrase is il-
luminated and qualified by the further words "as above
set forth and alleged." It is quite possible for the Court
to construe this whole phrase as equivalent to "by reason of
the breaches of said contract as above set forth and alleged,
the plaintiff has been damaged," etc. If the paragraph
had been so phrased it seems to the Court that there could
have been no doubt as to the proper classification of the
action as one on the contract. Such a construction of the
words actually used appears reasonable.

The plea in bar is overruled and five days are allowed
within which defendants may file answer to the petition.

* Consular Court Regulations, sec. 83".

UNITED STATES V. ENGELBRACHT, OCT. 25, 1909. 169
IN THE UNITED STATES COURT FOR CHINA.
United States v. Charles A. Engelbraght.

[Criminal cause No. 33; filed October 25, 1909.]

SYLLABUS.
(By the Editor.)

1. LEGISLATION: PROCEDURE: The CONSULAR CouRT Regulations of

1864, and later, still govern the procedure of American Courts
in China except so far as the Judge of this Court has exercised
his statutory "authority * * * to modify and supplement"
them.

2. Id. : Id. : Such Regulations prevail even over inconsistent acts of

Congress not expressly relating to this jurisdiction.

3. Id. : Id. : The Limitation of Criminal Proceedings prescribed by

sec. 82 of said Regulations, and not the shorter one of Rev.
Stats, sec. 1044, applies here.

4. Id. : Exegesis: The maxim Expr-essio unius est exclusio alterius,

applied.

Arthur Bassett, Esq., U. S. Dist. Atty., for the prosecution.
F. M. Brooks, Esq., contra.

Thayer, J. :

This is a criminal proceeding upon information filed by
the District Attorney, which charges that on or about
June 2, 1906, in Shanghai, China, the accused, at that time
Marshal of the Consular Court for the District of Shanghai,
embezzled certain funds which had been paid into said
Court and which came into his hands as Marshal.

The accused has filed a plea in bar, alleging that, inasmuch
as the action was not instituted within three years after
the offence charged was alleged to have been committed,
prosecution therefor is barred by the provisions of Sec.
1044 of the Revised Statutes of the United States, which
reads :

"No person shall be prosecuted, tried, or punished for any offence,
not capital, except as provided in section 1046, unless the indictment
is found, or the information is instituted, within three years next
after such offence shall have been committed. But this act shall
not have effect to authorize the prosecution, trial or punishment for
any offence barred by the provisions of existing law."

170 I EXTRATERRITORIAL CASES.

To this plea in bar the District Attorney has filed a repli-
cation alleging that said plea is not sufficient because the
law providing for the limitation of prosecutions in this
jurisdiction is defined in Title XV of the Consular Court
Regulations for China and not by the provisions of section
1044 of the Revised Statutes. Sec. 82 of Title XV of said
Consular Court Regulations reads as follov^'s:

"Heinout; offences, not capital, must be prosecuted within six years;
minor offences within one."

The question presented is, Does the Consular Court Reg-
ulation referred to furnish the rule of law for this juris-
diction, notwithstanding the provisions of sec. 1044 Rev.
Stats., with which it conflicts? The question is not one of
easy solution. It presents many difficulties by reason of the
status of this Court as an extraterritorial one and the
necessity thus arising for differentiating it from other
United States Courts.

The jurisdiction of all our Federal Courts in the United
States is clearly defined and the body of law which those
Courts administer can usually be ascertained with little
difficulty. This is not equally true of the extraterritorial
courts created by the United States, tho the necessity for
their existence, and the authority under which they have
been created, has never been questioned. The difficulties
arise from the admitted fact that the powers of these tri-
bunals have never been clearly defined.

Sections 4083 to 4130, inclusive, of the Revised Statutes
of the United States are a codification of the laws enacted
by Congress to define the judicial authority conferred upon
Ministers and Consuls in conformity with the provisions of
treaties of the United States with China and other countries
within which extraterritorial jurisdiction was to be exer-
cised.

Sec. 4086 specifies the body of law which shall be
administered by such Courts and its provisions may briefly
be summarized as follows :

1. The laws of the United States are extended over our citizens
in China "so far as they are suitable" to give effect to the treaties
with China.

UNITED STATES V. ENGELBRACHT, OCT. 25, 1909. 171

2. In all cases where such laws are "not adapted to the object, or
are deficient in the provisions necessary to furnish suitable remedies,"
the common law, and the law of equity and admiralty, "are extended
in like manner over our citizens in China."

3. If neither the common law, nor the law of equity or admiralty,
nor the statutes of the United States, "furnish appropriate and suf-
ficient remedies" the ministers, respectively, shall supply such defects
and deficiencies by "decrees and regulations which shall have the force
of law."

Section 4117 relates to rules of procedure for the Con-
sular Courts and provides that they shall be made by the
minister with the advice of the several consuls. It specifies
various matters of procedure respecting which the minister
shall make rules and concludes with mandatory authority
"to make such further decrees and regulations, under the
provisions of this title, as the exigency may demand."

It should be observed that this latter provision relates
not only to matters of procedure covered in section 4117,
but, as stated, to such further decrees and regulations as
the exigency may demand, "under the provisions of this
title," viz.. Title XLVII, which includes sec. 4086, herein-
before referred to.

Sec. 4118 . provides for the publication of such reg-
ulations, decrees and orders and makes them binding and
obligatory until annulled or modified by Congress. Regula-
tion 82, referred to, is one of those thus adopted and it
has not been annulled nor modified by Congress.

On June 30, 1906, Congress created the United States
Court for China. It should first be noted that the jurisdic-
tion of the Consular Courts in China, defined by the several
statutes above cited, had been exercised for many years
prior to the passage of the act organizing this Court. The
act provides that the consular courts are still to exercise
a limited jurisdiction. This fact, the appellate jurisdiction
given to the United States Court for China, the require-
ment that the Judge and District Attorney shall be la-\\^'ers
of good standing and experience, and other manifest
reasons, indicate that the general purpose of Congress was
to provide a higher and more efficient tribunal than had
theretofore existed in China for the exercise of the judicial
functions authorized by the treaties.

172 I EXTRATERRITORIAL CASES.

The act is neither long nor elaborate in its provisions.
Section 4 relates to the body of law which shall guide the
Court in the exercise of its jurisdiction and provides:

1. The treaties must be complied with.

2. The jurisdiction must be exercised in conformity with
the laws of the United States in reference to the American
Consular Courts in China which were in force at the date
of the passage of the Act. This covers such parts of sec-
tions 4083 to 4130, inclusive, of the Revised Statutes as are
applicable to China and the regulations, decrees and orders
which have been promulgated in pursuance thereof and
are given the force of law.^

One exception is made, and only one, viz., that sections
4106 and 4107, relating to summons of associates, shall not
apply to this Court. The significance of this single excep-
tion must be recognized. It can hardly be construed other-
wise than as an affirmative confirmation of all the other
then existing laws and regulations. The familiar maxim
expressio unius est exclusio alterius obtains.

3. When "the laws now in force in reference to Amer-
ican Consular Courts in China" are deficient in certain
named respects, resort may be had to the common law and
the law as established by the decisions of the courts of the
United States. The deficiencies here specified differ in lan-
guage and substance from those described in sec. 4086
of the Revised Statutes, and must be construed in connec-
tion therewith and as additional thereto. There is nothing
in section 4 of the act which touches directly the question
here presented.

Section 5 relates to the procedure of the court and pro-
vides that it shall be "in accordance, so far as practicable,
with the existing procedure prescribed for Consular Courts
in China in accordance with the Revised Statutes of the
United States," the Judge being given power to modify and
supplement the said rules. It is obvious that the particular
Revised Statutes to which reference is made are those sec-
tions which we have already recited, contained in Title
XLVII in pursuance of which the then existing procedure

' Sees. 4086, 4117, and 4118.

UNITED STATES V. ENGELBRACHT, OCT. 25, 1909. 173

had been adopted. The words "in accordance with" are
merely descriptive and not words of limitation.

In other words the procedure of the Court which this
statute provides is found in the existing Consular Court
Regulations. The statute does not state that only such
regulations shall be binding as the Court may find to have
been made in harmony with the Revised Statutes of the
United States. It could have done so very easily by the
use of appropriate words. As the statute stands it is not
rationally open to any other construction than that an-
nounced. The phrase "prescribed for Consular Courts in
China in accordance with the Revised Statutes of the United
States" is purely and simply descriptive.

All the existing Regulations had been laid before Con-
gress, as required by law, many years before this statute
was passed, and it must be presumed, under well established
doctrine,- that Congress had full knowledge thereof. In
fact it appears to the Court that the provision referred to
cannot be considered as anything less than an affirmative
recognition and confirmation of such of these regulations, at
least, as relate to procedure. Whether or not the act must
be considered as recognizing and confirming the whole body
of these regulations existing at the date of the passage of
this act, the Court does not at this time undertake to say.
It is proper to note, however, that Congress had this op-
portunity to annul or modify any of these regulations but
did not. Whatever objections may have been theretofore
made to these regulations, based on a denial of the constitu-
tional authority of Congress to delegate its legislative
powers, it seems clear to the Court that the present action
of Congress, in respect to such then existing regulations
as relate to procedure of the Consular Courts, operates not
only as si, confirmation thereof but practically as an enact-
ment of such regulations, exactly the same as if they had
been verbally recited in the act itself. However much their
origin may be assailed, the regulations adopted under sec-
tion 4117 are now clearly and unquestionably made binding
and obligatory on this Court by direct and specific enact-

' Clinton v. Englebrecht, 13 Wall. (U. S.), 434, 20 L. ed. 659.

174 I EXTRATERRITORIAL CASES.

ment. If section 1044 of the Revised Statutes had thereto-
fore any application in the Consular Courts of China, it has
no force as a rule of procedure in the United States Court
for China, because Congress has provided otherwise in the
act creating the Court. Rule 82 of the Consular Court Reg-
ulations is made the law of this jurisdiction respecting the
limitation of criminal prosecutions.

II.

While this holding disposes of the plea in bar in this case,
it is deemed proper to state that there are other and addi-
tional grounds upon which the Court might be inclined to
sustain the validity of said Rule. We premise that a grave
distinction must be recognized between the system of juris-
prudence provided for in the Constitution of the United
States and that which Congress has provided to meet ex-
traterritorial emergencies created by treaties with foreign
governments. There is ample ground for contending that
such legislation as Congress has passed upon this subject
was well within its constitutional powers. These several
sections of the Revised Statutes had for their purpose

"to organiie and carry into effect the system of jurisprudence de-
manded by such treaties." ^

It was obviously another and entirely different system
of jurisprudence from that already provided by Congress
for operation within the geographical boundaries of the
United States. The Constitution ^ provides that

"all treaties made or to be made under the authority of the United
States shall be a part of the supreme law of the land."

When a treaty duly made provides for the exercise of
judicial powers by some officer of the United States within
the borders of a foreign country, the necessity arises for
some system of jurisprudence to provide for the execution
of the treaty in that respect. As the Supreme Court said :

"By the Constitution * * * a government is ordained and
established for the United States of America and not for countries
outside of their limits." *

'Rev. Stats, sec. 4117.

' Art. VI.

• In re Ross, ante, p. 50.

UNITED STATES V. ENGELBRACHT, OCT. 25, 1909. 175

The power of Congress to create a system of juris-
prudence for operation in foreign territory in fulfillment
of treaty privilege, it has been asserted,*^ may rest
on sec. 8, article I, of the Constitution, which gives Con-
gress the power to regulate commerce with foreign
nations and a subsequent clause of the same section which
gives Congress power to enact laws to define and punish
offences against the law of nations and to carry into exe-
cution all powers vested by the Constitution in the Govern-
ment of the United States or in any department or officer
thereof.

The President, by and with the consent of the Senate,
is empowered to make treaties and as they become a part
of the supreme law of the country, it is not a straining of
these constitutional provisions to hold that Congress de-
rives from them full power to enact such legislation as is
necessary to give full effect to treaty stipulations.

We do not at this time give further consideration to the
question thus raised since, in the judgment of the Court,
a final determination thereof is not necessary in order to
dispose of the particular matter now presented.

III.

But if it were possible that section 5 of the act creating
this Court could not be construed as confirming and enacting
into law Rule 82 of the Consular Court Regulations, and
thus amending, to that extent, section 1044 of the Revised
Statutes, there are still other rational grounds upon which
to assert that said Rule controls procedure for this Court.

There are abundant authorities which sustain the rule
that statutes of limitation are statutes of procedure and
relate to the remedy."

"It is to be noted, however, as an important circumstance, that
the same claim may sometimes be a mere matter of process, and so
determinable by the law of the forum, and sometimes a matter of

' Hinckley, American Consular Jurisdiction in the Orient, 68.

'Bishop, Statutory Crimes, Sees. 175, 176, 264a; Story, Conflict
of Laws, sec. 576; Lewis, Sutherland, Statutory Construction, p. 663;
Minor, Conflict of Laws, 521; Dicey, Conflict of Laws (Moore's ed.),
711.

176 I EXTRATERRITORIAL CASES.

substance going to the merits and, therefore, determinable by the law
of the contract. This is illustrated in the application of the defence
arising upon the Statute of Limitations. In the coui'ts of England
and America, that defence is governed by the law of the forum as
being a matter of a mere procedure; while in continental Europe the
defence of prescription is regarded as going to the substance of the
contract and, therefore, as governed by the law of the seat of the
obligation." '

Mr. Secretary Bayard in a letter to Minister Denby, of
April 27, 1887, gave full recognition to this principle, hold-
ing that the portion of said regulations embraced in title
XV (which includes Rule 82)

"is to be viewed as a rule of court expressing a principle open to
modification by the court that issued it. It stands in the same
position as do the equity rules adopted by the Supreme Couii; of the
United States and courts of the several States, not as a statutory
mandate, to remain in foi'ce until expressly repealed or modified, but
as a principle and regulation of practice which it is open to the court
to expand or vary as the purpose of justice may require."

We are not at present concerned with Secretary Bayard's
view respecting the validity of such regulations as embrace
substantive law. ^

Mr. Secretary Fish also recognized "^' distinctly the right
of the ministers to adopt rules of procedure and the in-
tegrity of the doctrine has likewise been recognized by the
courts in numerous other cases. A clause in the organic
act of the territory of Montana declared

"that the Constitution, and all laws of the United States which are
not locally inapplicable, shall have the same force and effect within
the said Territory of Montana as elsewhere in the United States."

It was argued that, by virtue of this enactment, all regu-
lations respecting judicial proceedings which are contained
in any of the acts of Congress are imported into the practice
of the territorial courts and that territorial legislation on
the procedure of territorial courts which abolish the dis-
tinct forms and modes of proceeding in law and equity was

' Pritchard v. Norton, 106 U. S. 124, 27 L. ed. 104.
" See also opinion of Attorney General Gushing, Ops. Attys. Gen.,
VII, 495.

"Moore, Int. Law Digest, II, 620, 621.

UNITED STATES V. ENGELBRACHT, OCT. 2 5, 19 09. 177

therefore contrary to the said organic act. The Court
held" that

"this proposition is not tenable. Laws regulating the proceedings of
the United States courts are of specific application, and are, in truth
and in fact, locally inapplicable to the courts of a territory. There
is a law authorizing this court to appoint a reporter. In one sense
this law is not locally inapplicable to the Supreme Court of the ter-
ritory but in a just sense it is so. The law has a specific application
to this court, and cannot be applied to the territorial court without
an evident misconstruction of the true meaning and intent of Con-
gress in the clause of the thirteenth section above referred to. That
clause has the effect, undoubtedly, of importing into the territory the
laws passed by Congress to prevent and punish offences against the
revenue, the mail service, and other laws of a general character and
universal application; but not those of specific application.

"The acts of Congress respecting proceedings in the United States
courts are concerned with, and confined to, those courts, considered
as part of the Federal system and as invested with the judicial power
of the United States expressly conferred by the Constitution and to
be exercised in correlation with the presence and jurisdiction of the
several state courts and governments. * * * As before said,
these acts have specific application to the courts of the United States,
which are courts of a peculiar character and jurisdiction."

A reading of the enactments of Congress relating to lim-
itations in the courts of the United States shows that
they are not applicable to the United States Court for China.
Section 1043 can be applied only to courts in which prose-
cutions are instituted by indictment; section 1044 only
to courts in which they are instituted by indictments and in-
formations. In our courts in China indictments are not
known and criminal prosecutions may be instituted by com-
plaints of private parties ; also informations in the courts in
China are provided for by laws different from those defining
infoimations in the courts of the United States.^- These
laws, therefore, are not applicable to this jurisdiction ac-
cording to the holding in the case last cited.

The Revised Statutes provide that; "the laws of the sev-
eral states, * * * shall be regarded as rules of deci-
sion in trials at common law, in the courts of the United

"Hornbuckle v. Toombs, 18 Wall., 648, 21 Law. ed. 966; on appeal
to the Supieme Court of the United States from the Supreme Court
of the territory of Montana.

''Revised Statutes, sees. 1025, 4087.

14008 O. W. 12

178 I EXTRATERRITORIAL CASES.

States, in cases where they apply." It was argued that
limitation laws of the states did not "apply" to "causes" of
action created by Congressional legislation and enforcible
only in the Federal courts." The court held '^ that this
asserted a distinction rather than pointed out a difference.
It also said :

- "If these actions be exempted from the state statute of limitations,
it would undoubtedly follow that other statutes of a similar nature,
adopting the local practice for certain purposes, would be equally
inapplicable. * * *

"Indeed, if the local statutes of limitations be not applicable to
these actions, it is difficult to see why the process, declaration, and
other pleadings in the code states should not be in common law
form, notwithstanding section 914 adopting the state practice in
that particular; * or why, in every other respect, the suit should
not be conducted regardless of the laws of the particular state.

"The truth is that statutes of limitations affect the remedy only
and do not impair the right and that the settled policy of Congress
has been to permit rights created by its statutes to be enforced in
the manner and subject to the limitations prescribed by the laws of
the several states."

It would seem that the same principle would apply to crim-
inal cases in China, since the local procedure has been
adopted in criminal as well as in civil cases. Reference to
section 4087 of the Revised Statutes will show how fully
this matter of procedure in criminal cases has been en-
trusted to local officials. Even the informations must be
authenticated in such way as shall be prescribed by the
minister. It might well be asked, How can the term in-
formation in section 1044 be held to apply to a pleading
which might be, and in fact is, different from an informa-
tion provided by Congress for courts in the United States?

Under these authorities the Court would be inclined to
hold, that Rule 82, promulgated by the minister under sec-
tion 4117 of the Revised Statutes, was a part of the pro-
cedure of the Court and was operative notwithstanding
its conflict with a general statute of the United States.
The statute of limitations, codified in section 1044, was
passed in 1794. Rule 82 was promulgated in 1864 and
was subject to annulment or modification by Congress but

" Campbell v. Haverhill, 155 U. S. 610, 39 L. ed. 280, per Brown, /.

UNITED STATES V. ENGELBRACHT, OCT. 25, 1909. 179

was made binding and obligatory until so annulled. With-
out annulment Congress amended ^* the general act in 1876,
substantially maintaining it in force.

It is a settled rule of construction that when there is a
general law applicable to the entire state and a special law
applicable in a particular locality only, the special law
will govern in the particular locality.'''

"A general statute without negative words will not repeal by
implication from their repugnancy the provisions of a former one
which is special, local, or particular, or which is limited in its ap-
plication, unless there is something in the general law or in the
course of legislation upon its subject-matter that makes it manifest
that the legislature contemplated and intended a repeal. It is the
established rule of construction that the law does not favor a repeal
by implication, but that where there are two or more provisions
relating to the same subject-matter they must, if possible, be con-
strued so as to maintain the integrity of both. It is also a rule
that where two statutes treat of the same subject, one being special
and the other general, unless they are irreconcilably inconsistent,
the latter, altho latest in date, will not be held to have repealed
the former, but the special act will prevail in its application to the
subject-matter as far as coming within its particular provisions.
A special statute providing for a particular place, or applicable to
a particular locality, is not repealed by a statute general in its
terms and application unless the intention of the legislature to repeal
or alter the special law is manifest altho the terms of the general
act would, taken strictly and but for the special law, include the
case or cases provided for by it."

This well recognized doctrine has even more potent ap-
plication when, as in this case, the particular locality in

'' Act of Congress of Feb. 1, 1876, 19 U. S. Stats, at Large, 21.
[The sole amendment was to give the vice consul general judicial
functions. But the argument of the text is greatly reinforced by an
earlier and much more extensive amendment (Act of July 1, 1870, 16
U. S. Stats, at Large, ch. 194, p. 183) which completely changed the
appellate jurisdiction and procedure of the original act besides pro-
viding for prisons in China and Japan. See this act applied and
construed in The Spark v. Lee Choi Chum, I Sawy, (U. S.) 713,

22 Fed. Cas. 871 (1872) ; Tazaymon v. Twombley, 5 Sawy. 79,

23 Fed. Cas. 815 (1878) ; The Ping-On v. Blethen, 11 Fed. 607
(1882)]. Ed.

''Black, Interpretation of Laws, 117; Lewis' Sutherland, Stat-
utory Construction, I, 526-528 and cases cited.

^'^ Lewis, Sutherland, Statutory Construction, I, 526-529.

180 I EXTRATERRITORIAL CASES.

whith the special law is to have effect, is entirely outside
of the boundaries of the United States and under a special
system of jurisprudence.

The Court has not overlooked the fact that many of these
regulations are gravely defective. It may well be that
Congress so regarded them as it has given to the Judge of
this Court "authority * * * to modify and supple-
ment such rules of procedure." In due time the task of
curing these defects will be undertaken.^' Meanwhile these
rules of procedure are binding and obligatory and must
be administered.

The plea in bar is

OVERRULED.^^

IN THE UNITED STATES COURT FOR CHINA.
Robert W. Sexton, Appellant, v. United States.

[Criminal Proceeding No. 32; filed Nov. 29, 1909.]

APPEAL FROM THE CONSULAR COURT FOR THE DISTRICT OF

SHANGHAI.

SYLLABUS.
(By the Editor.)

1. APPEALS: TRIAL DE Novo, with reception of additional evidence

in this court, in cases appealed from the Consular Courts can
be allowed, if at all, only upon strong showing that "justice
will be promoted thereby."

2. CITIZENSHIP: EVIDENCE of a change of citizenship, showing release

from the obligations thereof, must be clear and convincing.

" They have been undertaken by the present Judge of the Court
in the form of the Extraterritorial Remedial Code. Ed.

^' After a ti-ial on the merits, in which it seems that depositions
were used, the court, on April 18, 1910, entered a judgment of ac-
quittal, applying the rule of reasonable doubt and citing U. S. v.
Harper, 33 Fed. 482, observing, nevertheless, that if the evidence
were "offered in a civil action, there would be no doubt whatever of
a verdict adverse to the defendant" and that (referring to the
consular court) "it was intolerable that such a record should be
allowed to stand in an American court of justice and especially in
an extraterritorial court in China and in a case in which the plain-
tiff was a Chinese."

SEXTON V. UNITED STATES, NOV. 29, 1909. 181

3. VAGRANCY: defined and discussed.

4. Id. : Information charging, held sufficient.

5. Id. : Evidence found not to establish.

W. S. Fleming, Esq., for appellant.

Appellant pleaded foreign nationality, having taken an oath of
allegiance to the Boer Republic in South Africa during the war
between that Republic and Great Britain. Expatriation is a natural
and inherent right. (Revised Statutes, section 1999; Van Dyne,
Citizenship, pp. 269-82.)

Consular Court Regulation of April 13, 1907, is not law, for the
reason that it does not conform to the Revised Statutes, section 4086,
4117-9, which must be interpreted together, and which require taking
advice of the several Consuls before promulgating a regulation. (26
Encyc. 616, 618.)

The evidence did not support the finding of guilty.

Arthur Basset, Esq., U. S. Dist. Atty., contra.

American citizenship by birth is presumed to continue until change
of nationality is affirmatively proved. Appellant offered no docu-
mentary proof of naturalization in the Boer Republic of South Africa,
and no proof of the naturalization laws of that Republic. An oath
of allegiance to, and undertaking military service for, a belligerent
does not effect expatriation. (7 Cyc. 147; 3 Moore, International
Law Digest, 722-3; Van Dyne, Citizenship p. 277; 1 Lewis' Suther-
land, Statutory Construction, 22.)

Vagrancy is an offense under the laws of the United States in
force in China. Biddle v. United States, ante, p. 120, Alaska Criminal
Code, Section 151.)

Evidence that appellant was an idle and dissolute person, without
visible means of honest and reputable support, whose sole occupation
was that of manager of a common gambling house, is sufficient for
a finding of guilty on a charge of vagrancy. (9 Cyc. 523, 527, 538.)

Thayer, J.:

This is an appeal from a final judgment of the Consular
Court at Shanghai finding the appellant guilty of the crime
of vagrancy. On instituting his appeal in this Court the ap-
pellant applied as a matter of right for a trial de novo. He
submitted no showing tending to establish the fact that the
interests of justice would be promoted thereby. This ap-
plication having raised an important question of proced-
ure, permission was granted to any member of the bar,

182 I EXTRATERRITORIAL CASES.

tho not of counsel, to submit argument on the applica-
tion, either orally or in writing.

After due consideration the Court provisionally ruled
that there was no warrant under existing law for a trial
de novo of a case brought here on appeal from a Consular
court. The same ruling, with slight qualification, is now
made final.

Section 2 of the Act of June 30, 1906, creating the Court,
defines its appellate jurisdiction and provides that either
party shall have the right of appeal to it from all final
judgments of the Consular Courts, including those of Korea.
The act contains nothing in terms upon which to base a
conclusion that this appellate jurisdiction was intended to
be exercised in any other way than that established in other
appellate courts of the United States ; but in section 5 of
the Act it is provided that the procedure of the Court shall
be, so far as practicable, in accordance with the existing
procedure of the Consular Courts in China.

The provision relating to the exercise of appellate juris-
diction by the Minister is covered in section 4091 of the
Revised Statutes. That section provides that the Minister
shall hear and decide all cases which come before him on
appeal and it empowers him to decide finally on such an
appeal "upon the evidence which comes with it, or to hear
the parties further, if he thinks justice will be promoted
thereby." The authority given to the Minister to hear the
parties further had one condition precedent, namely, a con-
clusion that justice ivould he promoted thereby. Unless sat-
isfaction on that point is first had, no authority is conferred
to go outside the record and no additional evidence can be
received. In the case at bar the defendant made no showing
upon which to base a contention that justice would be pro-
moted by hearing the parties further and thus no ground
was laid upon which the request for a trial de novo could
rightfully be considered. The absence of such showing was
sufficient to compel the denial of the request for trial de
novo.

It is well known that in the Federal appellate courts the
uniform practice is to try cases on the record as brought
up. From this practice Congress made a wide departure in

SEXTON V. UNITED STATES, NOV. 29, 1909. 183

permitting' the Minister, sitting as an appellate judge, to
receive any additional evidence to that contained in the
record. We do not question the wisdom of such action,
but we think care should be exercised not to emphasize that
departure or to give the provision wider significance than
that intended by Congress. Doubtless in making such an
unusual provision consideration was given to the fact that
consular courts as then organized were not well equipped
for the administration of justice and that for this reason
something more than the usual powers of revision on ap-
peal might properly be vested in the Minister. But the
law itself contains evidence that the discretion conferred
upon the Minister was to be conservatively exercised. He
must be satisfied that "justice ivill he promoted thereby"
before he can exercise authority under the statute to admit
additional evidence. To hear the parties further cannot
rationally be construed as giving power generally to try
every case de novo in the appellate court, merely on the
request of one of the parties. A fair construction of the
law requires that some strong showing must be made, sub-
stantially such a showing as, under familiar rules, would
be sufficient to justify the granting of a new trial, in order
to admit of the reception of evidence in addition to that in
the record ; and some even stronger showing will be insisted
upon before the appellate court can possibly be justified in
granting a trial de novo. The Court does not, therefore,
undertake at this time to say that in no case on appeal will
a trial de novo be granted but contents itself with saying
that, in its judgment, such cases will rarely, if ever, arise.
The request of the appellant for a trial de novo must be
denied.'

II.

In the trial court the defendant filed a plea to the juris-
diction alleging that he was not a citizen of the United
States. In substance he stated in said plea that, altho
he was a native born citizen thereof, he had renounced
allegiance to the Government in the year 1900 and at the

'Rev. Stat., sec. 4091; 34 U. S. Stats, at Large, p. 814, Ch. 3934
sec. 5; U. S. v. Engelbracht, ante, p. 169.

184 I EXTRATERRITORIAL CASES.

same time had taken the oath of allegiance to the Zuid
Afrikaansche Republik (commonly spoken of as the Boer
Republic), had become a citizen thereof and that he had
not since that time been naturalized in the United States
nor had his American citizenship been restored. After
taking testimony the trial court overruled this plea and
such ruling is objected to as reversible error.

The defendant did not supply any documentary proof
of his alleged naturalization as a citizen of the Boer Re-
public. On his direct examination he testified that on
February 19, 1900, he took the oath of allegiance to the
Boer Republic and foreswore allegiance to the United States
and that during the progress of the war he performed
police duty in the city of Johannesburg. On cross-exam-
ination he testified that the oath was administered in the
Dutch language ; that he was not familiar with that lan-
guage; that he did not know what the particular terms of
said oath were ; and that he procured thereafter citizenship
papers and a permit to carry a gun. He did not present
any such papers to the Court.

The only corroboration sought to be given to the testimony
of the defendant in these respects is that of two witnesses,
the testimony of one of whom is irrelevant. The other
witness testifies that he was present at the relief of Johan-
nesburg in 1900 and that he saw the defendant there at
that time ; and that he must have been a burgher, otherwise
he could not have been there. He had to be either a burgh-
er or Briton. But the testimony of this witness is of
no value in determining the issue, since from no point of
view can he be regarded as an expert witness qualified
to declare what were the provisions of the naturalization
laws of the Boer Republic.

At the time when the appellant alleges he took the oath
of allegiance, a state of war existed between the Boer Re-
public and Great Britain. He says he was at that time
engaged in the saloon business. He admits that he took
the oath to keep out of trouble ; that the oath was adminis-
tered in Dutch, a language with which he was not familiar ;
that he did not understand its particular terms ; and that
he performed only police duty. It is quite possible that the

SEXTON V. UNITED STATES, NOV. 2 9, 1909. 185

oath alleged to have been taken by the appellant might
have been an oath of military allegiance. It is well estab-
lished that such an oath, taken to a belligerent and within
his lines, does not operate to change nationality. While
he testifies freely as to the character of the oath and as
to his intent in so doing, in the absence of any documentary
proof of his naturalization and in view of the obvious self
interest which would influence, if not dictate, the character
of his testimony on the present issue, the Court is not
inclined to attach much weight thereto. In addition to this
there does not appear in the record any proof respecting
the naturalization laws of the Boer Republic so as to enable
the Court to determine whether there had been even a prima
facie compliance therewith.

This appellant is seeking to avoid the obligations of Amer-
ican citizenship. The Court is entirely satisfied that the law-
will not permit him to do so upon any such loose and incon-
clusive showing as that made in this record. The question
presented by the facts of this case must be carefully differ-
entiated from that which arises when a citizen of the United
States, whether native born or naturalized, residing in some
foreign State, appeals to the executive department for pro-
tection. It is to this latter that the cases and authorities
which were cited by appellants' counsel mainly relate. Pro-
tection is not infrequently denied tho the identical facts
might not be sufficient to justify a judgment of expatriation
in one who is seeking to escape the obligations of citizenship.
The trial court committed no error in taking jurisdiction
of the defendant as an American citizen.

III.

On April 13, 1907, the American Minister at Peking pro-
mulgated a Regulation defining the crime of vagrancy in the
jurisdiction of China, providing for the trial of any citizen
of the United States charged with that offense, and fixing
the penalty for the offense by fine and imprisonment in such
terms as would give the consular courts original jurisdic-
tion thereof. Counsel for the defendant assumed that the
information in this case was based on that Regulation and
in the trial court attacked its validity on the ground that it

186 I EXTRATERRITORIAL CASES.

was not adopted nor promulgated in accordance with the
provisions of sections 4117, 4118, and 4119 of the Revised
Statutes in respect to submission of the same to the several
Consuls of the United States in China prior to its publica-
tion. However, ruling will not be made on the point thus
raised, since for other reasons the Regulation is held to be
inoperative so far as relates to fixing a definition of the
crime of vagrancy.

1. The regulation referred to was promulgated sub-
sequent to the date of the act creating this Court and
therefore was not, at that time, a "law of the United States
now in force in reference to the American consular courts
in China." It has been a mooted question whether or not,
since the passage of the Act of June 30, 1906, creating this
Court, any power remained in the Minister for the adoption
of decrees or regulations for any purpose whatever, whether
covering procedure or substantive law. Inasmuch as the
Judge of this Court is given authority from time to time
"to modify and supplement said rules of procedure," - it
cannot be reasonably concluded that the Minister continues
to have power in that respect since such contention would
necessarily involve the exercise of that power by two in-
dependent officers with inevitably conflicting results.''

2. Whatever view may be taken respecting his powers
to make decrees embracing substantive law, either before or
after the creation of this Court, it is obviously not bound
by a ministerial decree promulgated after the creation of
the Court and in conflict with the law which it is required
to administer. Section 4 of the creating act provides that
the jurisdiction of this Court shall be exercised and enforced
in conformity with the treaties with China and the "laws
of the United States which are now in force in reference
to the American consular courts in China." The body of
laws thus referred to is defined mainly in section 4086 of
the Revised Statutes. By that section the laws of the
United States, so far as they are suitable, are extended over

■ Act of Congress of June 30, 1906, 34 U. S. Stats, at Large, Pt. I,
Ch. 3934, sec. 5.

^ This is now the accepted doctrine in all quarters. The State De-
partment, on March 2, 1917, expressed the same opinion. Ed.

SEXTON V. UNITED STATES, NOV. 29, 1909. 187

all American citizens in China. When such laws are not
adapted to the object or are deficient in provisions necessary
to provide suitable remedies, the common law and the law
of equity and admiralty are extended over such citizens.
And if neither such bodies of law furnish appropriate and
sufficient remedies, the Minister is authorized, by decrees
and regulations which shall have the force of law, to supply
such defects and deficiencies.

The Regulation in question was evidently intended to
supply a supposed existing deficiency, in that there was
believed to be no law of the United States or other law
available to this Court defining vagrancy as a crime and
providing for its punishment. But since that Regulation
was promulgated the Court of Appeals has construed the
jurisdictional clause of the creating act and defined the
body of law available to this Court, in a decision of very
great importance in this jurisdiction.^ The crime there
charged was obtaining money or goods under false pre-
tenses and the Court sustained the information upon which
the defendant was tried, invoking legislation enacted by
Congress for Alaska and the District of Columbia, over
which it exercises exclusive jurisdiction. In addition to
these statutes the Court directs attention to section 2 of
the Act ^ of July 7, 1898, providing for the utilization of
state laws in Federal courts for the punishment of offenses
committed within the states in any place over which the
national government exercises exclusive jurisdiction, the
punishment of which is not provided for by any law of the
United States.

The Court of Appeals held, in view of these several stat-
utes, that obtaining money or goods under false pretenses
is an offense against the laws of the United States within
the meaning of the statute conferring jurisdiction upon the
United States Court for China, and that an American cit-
izen guilty of such an act in China is subject to trial and
punishment by this Court. Under this ruling, therefore,
it is necessary for us to look not only into the Revised
Statutes of the United States but into the laws governing

* Biddle v. United States, ante, p. 120.
'30 U. S. Stats, at Large, 717, Ch. 576.

][88 I EXTRATERRITORIAL CASES.

the District of Columbia, the territories and the several
states within which the national government holds lands
over which it exercises exclusive jurisdiction, to enable
us to determine if vagrancy has been made an offense
against the United States.

We find that section 151 of the Alaska Criminal Code
defines vagrancy and provides for its punishment and that
under the laws of most of the states vagrancy is a criminal
offense. It is clear, therefore, that, at the time when the
Regulation in question was promulgated, vagrancy was an
offense against the laws of the United States within the
meaning of the statute conferring jurisdiction on this Court,
that there was no deficiency in the laws of the United States
defining the crime of vagrancy, and that consequently the
Minister to China was without lawful power to promulgate
1 definition. In the view that the Court takes it is un-
necessary for present purposes to go further but it must
be understood that we do not declare the Regulation invalid
in all its terms. In fact the Court regards it as entirely
possible that the Regulation may be sustained in so far as
it fixes the penalty for vagrancy in this jurisdiction. In
this connection the provisions of section 4101 of the Revised
Statutes, relating to judicial discretion as to the nature and
degree of penalties, must be considered. The embarrass-
ments attending upon the administration of justice in both
the Consular Courts and this Court, due to the undeveloped
state of the law, are well understood. Until the law is
interpreted contra we believe that the Consular Courts will
be entirely justified, for purposes of fixing jurisdiction, in
adopting the penalties named in this Regulation.

The effect of the Court of Appeals decision is to enlarge
the body of law available to this Court, and to that extent
it diminishes deficiencies theretofore supposed to exist.
The circumstances of the particular case did not appear
to the appellate Court to require taking the additional
step of indicating what principles should govern in the
application of the laws referred to, the statutes of the
various states and territories having considerable diversity
in the definition of criminal offenses. Consequently the
task of extracting from these conflicting provisions of law

SEXTON V. UNITED STATES, NOV. 29, 190 9. 189

that which is available to and binding in this jurisdiction
is imposed upon this Court and it presents questions of
unique difficulty. The facts of the case at bar precipitate
these difficulties in a marked degree.'^

III.

The information was drawn substantially in the terms of
the Regulation which we have been discussing, which are
also, with slight variation, substantially those found in the
Alaska statute. The variance from its language is not such
as to lead the Court to doubt the legal sufficiency of the
information. The Court is of the opinion, however, that
in view of the somewhat conflicting definitions of offenses
and crimes in the general body of laws of the United
States, made applicable within this jurisdiction, great care
should be exercised in drawing complaints and informa-
tions, both in the Consular Courts and in this Court. Such
complaints and informations, if based upon particular stat-
utes, should be made to conform to the statutory definition
of the offenses charged. The decision of the Court of
Appeals brings into this jurisdiction a large and well de-
veloped body of law. It is the opinion of the Court that
this body of law can be utilized without undue embarrass-
ment by technical obstacles which, thru one cause or another,
have arisen in jurisdictions where the administration of
criminal law is necessarily more diversified.

Another phase of the defense is the contention that the
evidence submitted by the prosecution was insufficient to
sustain the charge of vagrancy. A critical examination of
the record shows that it establishes by satisfactory evidence
that the defendant was the manager, within the period
stated in the information, of the "Alhambra," a house of
entertainment, a gambling house and a house of assignation.
Detective Reeves answered in the negative the question :
"Has the defendant any other occupation that you know
of?" Detective Kennerly, on cross examination, testified

® These difficulties are reduced to a minimum by subsequent deci-
sions excluding from consideration "the statutes of the various states
and territories" and leaving only acts of Congress. See U. S. v. Allen,
post, p. 311. Ed.

190 I EXTRATERRITORIAL CASES.

that he did not know whether the accused had any other
employment than manager of the "Alhambra" during the
period stated in the information. Later he testified that
Sexton had no visible means of support, but admitted that
he did not know what money he may have had, and that, so
far as he knew, he may have had other income than his
salary as manager of the "Alhambra." This evidence is
negative in character and cannot be regarded as establish-
ing the allegation that the defendant had no other employ-
ment or other means of support.

Considering all of the evidence, it seems clear to the
Court that this prosecution must stand or fall alone on that
portion of it which establishes the fact that the defendant's
employment was that of manager of a gambling house. Is
such fact sufficient for a conviction of the offense of
vagrancy? We must seek for a definition of this offense
in the laws of the United States, especially in those sources
of law which the Court of Appeals has declared in force in
China. We turn first to the Alaska Code where the follow-
ing definition of the crime of vagrancy is found :

"Sec. 151. That all idle or dissolute persons who have no visible
means of living, or lawful occupation or employment by which to
earn a living; all able-bodied persons who shall be found begging
the means of support in public places, or from house to house, or
who shall procure a child or children so to do; all persons who live
in houses of ill repute, shall be deemed vagrants, and upon con-
viction thereof shall be fined not less than twenty dollars nor more
than two hundred and fifty dollars, or by imprisonment in the county
jail not less than ten nor more than twenty-five days or both, in the
discretion of the court."

It is seen that by this statute there are three classes of
persons who shall be deemed vagrants:

1. All idle or dissolute persons who have no visible means
of living, or lawful occupation or employment by which to
earn a living;

2. All able-bodied persons who shall be found begging in
public places, or from house to house, or who shall procure
a child or children so to do ;

3. All persons who live in houses of ill repute.

It is quite obvious that the evidence in this record does

SEXTON V. UNITED STATES, NOV. 2 9, 190 9. 191

not place the defendant in either the second or third class.
Does it establish his character as a member of the first
class? That class is composed of "all idle or dissolute per-
sons," such as "have no visible means of living" or such
as have no "lawful occupation or employment by which to
earn a living." A fact necessary to fix the crime of va-
grancy on one of this class is the fact of being an "idle or
dissolute perso7i." This is essential. The prosecution must
also show, either that the accused has "no visible means of
living" or no "lawful occupation or employment by which
to earn a living."

Section 152 of the Alaska Code declares in very broad
terms that any gambler or employee of a gambling house
shall be held guilty of a misdemeanor and, on conviction,
shall be punished by a fine of not more than five hundred
dollars and possible imprisonment of not more than one
year. This, of course, fixes gambling as an unlawful occu-
pation in Alaska. But inasmuch as special provision is
made for this larger offense it tends at least to raise a
doubt as to whether proof of that single fact should be
properly regarded as sufficient to establish the lesser and
minor offense of vagrancy in the same body of law.

Under the Alaska Code the penalty on conviction of
vagrancy is a fine of not less than twenty dollars nor more
than two hundred and fifty dollars, or by imprisonment in
the county jail of not less than ten nor more than twenty-
five days, or both, in the discretion of the court.

The general rule is that the maximum penalty allowed
by the statute must be regarded in determining the
jurisdiction of the court. If the Alaska statute were
strictly followed the jurisdiction of the Consular Court in
the present case would have to be denied, since, in criminal
cases, jurisdiction is limited to case's where the punishment
cannot exceed a fine of one hundred dollars or imprison-
ment for more than sixty days.^

However, the Court is strongly impressed with the fact
that the proof in this case being limited to establishing the

' Act of Congress of June 30, 1906, 34 U. S. Stats, at Larsje, Pt. I,
Ch. 3934, sec. 2.

192 I EXTRATERRITORIAL CASES.

defendant's guilt as a manager of a gambling house, the
latter offense being provided for under another section of
the same code, the government cannot reasonably elect to
proceed under the vagrancy statute, in which the mis-
demeanor of gambling constitutes only an element. In
addition the Court feels compelled to deduce from the
various definitions of vagrancy found in the several states,
all more or less developed from the common law concept,
such a definition of that crime as is not consistent with
the theory that gambling, as a single element, can be
regarded as constituting that offense.

Vagrancy at common law is defined by Blackstone ^ as
the act of idleness and vagabondage committed by persons

"whom cur ancient statutes describe to be 'such as wake on the
night and sleep on the day, and haunt customable taverns and ale-
houses, and routs about: and no man wot from whence they come ne
whither they go' or such as are more particularly described by
Statute 17 Geo. II. c. 5, and divided into three classes, idle and
disorderly persons, rogues and vagabonds and incorrigible rogues."

All these, says Blackstone, are offenders against the good
order, and blemishes in the government of any kingdom,
and are therefore punished by the statute mentioned — idle
and disorderly persons with one month's imprisonment in
the house of correction; rogues and vagabonds with whip-
ping and imprisonment not exceeding six months; and
incorrigible rogues with the like discipline and confinement
not exceeding two years.

Vagrancy as a common law offense was distinguished
from disorderly conduct generally by the Supreme Court of
Michigan.-' In that case the Court said that a provision of
the Revised Ordinances of Detroit

"can only reach such cases of vagabondage as come fairly within
the common law meaning of the word, which was possibly designed
to protect the public from expense, quite as much as from disorder."

The same Court held that vagrancy, when not defined by
statute, must be considered such vagabondage as fairly
comes within the common law meaning of the word ; and that

* Commentaries, IV, 169.

'Re May (Mich.), 1 N. W., 1021.

SEXTON V. UNITED STATES, NOV. 29, 1909. 193

"to make such going about vagrancy, it must further appear
that the person is idle, and seeking to live upon the charity of others,
unwilling, altho able to do so, to work for his or her maintenance." "

It will be observed that the Alaska Code incorporates the
common law definition of vagrancy and further specifies that

"all able-bodied persons who shall be found begging the means of
support in public places, or from house to house, or who shall procure
a child or children so to do; all persons who live in houses of ill
repute, shall be deemed vagrants."

The language of these two sections raises the question
whether such provisions do not exclude such acts as gam-
bling or disorderly conduct as constituting the offense of
vagrancy.

The statutes in the several states, modifying the common
law definition of vagrancy, are fairly represented by the
above quoted section 151 of the Alaska Penal Code."
The Massachusetts law ^- includes the acts specified in
the Alaska Code but distinguishes tramps and refers to
sections penalizing tramps more severely than vagrants.
The New York statute ^^ is more extensive and specifies
additional acts of the same nature as those enumerated in
the Alaska Code, separately providing penalties for tramps.
The Texas Penal Code " is briefer than the Massachusetts
and New York statutes but includes "a professional gam-
bler" and "a habitual drunkard who abandons, neglects or
refuses to aid in the support of his family." None of the
annotations relates to gambling; most of them relate to
prostitution. This is the single jurisdiction in which we
find a provision that a "professional gambler" is placed
within the definition of vagrancy. The California Penal
Code ^^ states the nature of the offense in more detail than
the Alaska Code ; it includes also common drunkards, runners

^In re Jordan, 90 Mich. 3, 50 N. W. 1087.

" This section was taken from the Laws of Oregon. Hill, Ann.
Laws, sec. 1958.

'" Revised Laws, 1902, Part II, p. 1796, chap. 212, sec. 59.

" Birdseye, General Laws, III, 3914, Code Crim. Proc, sec. 887, and
subd. 9, added L., 1900, c. 281.

" Title XI, chap. 7, Art. 41-3, White, Texas Penal Code, Annotated,
p. 251.

"Sec. 647.

14008 O. W. IS

194 I EXTRATERRITORIAL CASES.

about police courts and persons of bad reputation loitering
about railway stations and similar public places.

Vagrancy is defined in its common law significance as

"a going about from place to place by a person without visible means
of support, who is idle, and who, tho able to work for his or her
maintenance, refuses to do so, but lives without labour or on the
charity of others." "

And it is further said that statutes in the United States do
not usually set forth any principle by which vagrancy may
be defined but give extended lists of various descriptions
of persons who may be deemed and treated as vagrants.

On examination of the foregoing authorities it appears
that the essentials of the offense of vagrancy, under the
laws of the United States in force in China, are as follows :

Vagrancy is the idle or dissolute wandering about within
a district where he has no fixed place of abode of a sane,
healthy, adult person, who has no obvious means of honest
livelihood and who is in need of subsistence, who is un-
willing to work and who is, or is likely to become, a public
charge, or who is the inmate of a house of ill-fame or is
engaged in soliciting for prostitution.

The cases distinguish from the class of vagrants all
persons who are going about in leisure for lawful object's.
The Massachusetts cases have also held that "persons who
are under no obligation to work cannot offend against" stat-
utes penalizing "idle and disorderly persons," and that proof
that the accused possesses no independent means of support
and is able, but neglects to work, is usually necessary.^^

In all of the jurisdictions above referred to, vagrancy
is dealt with in a summary manner, arrests by private
persons being permitted and justices of the peace having
authority to convict without formal trial. These facts show
the minor character of the offense. The Court holds that
the evidence in this record is not sufficient to establish the
crime of vagrancy in the defendant.

The case is remanded to the Consular Cowt with direction
that the defendant he discharged.

"Am. & Eng. Encyc. of Law (2nd ed.), XXIX, 568.
"Com. V. Tay, 170 Mass. 192, 48 N. E. 1086; Com. v. Dougherty,
137 Mass. 245; Com. v. Sullivan, 5 Allen (Mass.) 511.

UNITED STATES V. FAULKNER, JAN. 31, 1910. 195
IN THE UNITED STATES COURT FOR CHINA.
United States v. Frederick T. Faulkner.

[Criminal Cause No. 35; filed January 31, 1910.]

SYLLABUS.
(By the Editor.)

1. EMBEZZLEMENT: "LAWS OF THE UNITED STATES." The Acts of

Congress which define and penalize embezzlement in the District
of Columbia and Alaska are "laws of the United States" with-
in the meaning of the provision extending such laws over
American citizens in China.

2. Id. : Agent or Servant. A Legation clerk to whom government

money is entrusted by the official in charge of the Legation is
the "agent" or "servant" of such official within the meaning of
said acts.

3. Id. : Evidence examined and found sufficient to show that such

money w^as appropriated by said clerk to his own use.

Arthur Bassett, Esq., U. S. Dist. Atty., for the prosecu-
tion.

G. F. Curtis, Esq., contra.

Thayer, J.:

The information in this case charges, with the crime of
embezzlement, the defendant who, at the time, was em-
ployed as a clerk in the American Legation at Peking. He
did not belong to the class of employees who are specifically
provided for in detail in the annual appropriation bills
passed by Congress for the Diplomatic and Consular Service.
In the Act of March 2, 1909, making appropriation for
said service, the sum of $65,000 is appropriated "for the
employment of necessary clerks at the embassies and le-
gations." From said appropriation the Secretary of State
makes allotment to each embassy or legation respectively,
of sums which may be expended for cleik or clerks and
the sum of $1,800 was authorized to be expended for a
clerk in the above named Legation. The authority to
select and appoint the clerk to be thus employed was left,
without material restrictions, to the head of the Legation,
who could also specify the work to be performed, assign

J^96 I EXTRATERRITORIAL CASES.

to said clerk or clerks any kind of clerical duty and ter-
minate the employment at any time at his discretion.

The testimony presented by the prosecution has not been
rebutted by the defense on any material point. The prose-
cution's witnesses are all reputable men and gave their
testimony in such a manner as left no doubt in the Court's
mind of its truthfulness. The proof establishes beyond a
reasonable doubt the following facts :

Henry P. Fletcher, the First Secretary of the American
Legation at Peking, has been thereof Charge d'affairs ad
interim since June, 1909. In the early part of November,
1909, a bill was presented to the said Legation by the Im-
perial Chinese Telegraph Administration for telegraph
service rendered prior to November 1, 1909. The account
then outstanding was $5,868.16 local currency. Mr.
Fletcher instructed the defendant to ascertain what amount
in U. S. currency would be necessary to draw in a draft on
the Secretary of State to realize sufficient local currency to
pay said account. On November 8, 1909, the defendant
presented a memorandum to Mr. Fletcher from the Yoko-
hama Specie Bank, Limited, at Peking, indicating that a
draft for $2,449,66, U. S. currency, would realize on that
date $5,868.16 local currency. Thereafter a draft on the
Secretary of State for $2,449.66, U. S. currency, was pre-
pared and signed by the said Henry P. Fletcher and delivered
by him to the defendant with instructions to negotiate it
and with the proceeds thereof pay the above mentioned
account of the Imperial Chinese Telegraph Adminis-
tration. The defendant received the said draft and
on November 16, 1909, negotiated it at the Yokohama Specie
Bank, Limited, at Peking, and received from the said bank
the proceeds thereof amounting to $5,858.68 local currency.

The defendant did not apply said sum so received by him,
or any part thereof, to the payment of the said account and
has not accounted therefor in any way to the said Henry
P. Fletcher. In the latter part of November, 1909, and sub-
sequent to the receipt by him of the $5,858.68, the defend-
ant applied to Mr. Fletcher, as the head of said Legation,
for leave of absence for ten days, stating that he desired

UNITED STATES V. FAULKNER, JAN. 31, 1910. 197

rest and recreation. Mr. Fletcher then asked him if the
accounts of the Legation were in proper shape and, on
being informed that they were, granted the leave of ab-
sence. The defendant informed Mr. Fletcher that he
intended to go to Mongolia and said that if it were desired
to communicate with him, a message sent to Kalgan in care
of the British-American Tobacco Company would reach him.
On or about December 8, 1909, a bill was received at the
American Legation at Peking from the Imperial Chinese
Telegraph Administration showing that the bill for
$5,868.16 local currency, outstanding at the end of October,
1909, had not been paid. Having investigated and satis-
fied himself that such was the case, Mr. Fletcher attempted
to communicate with the defendant at Kalgan but was
informed that he had not been there. Upon further inves-
tigation the proof showed that the defendant had proceeded
south, that he had been seen in Shanghai about December 8,
that later he had proceeded to Singapore, and that later
still he returned north and was arrested by the United
States Marshal at the port of Woosung.

It is established to the satisfaction of the court that
Mr. Fletcher as chief ad interim of the Legation was charged
by law with the sole responsibility for the procurement and
disbursement of public funds which were required for the
payment of the Legation expenses. He could not delegate
to any other person any of the services in that connection
and, if he saw fit to use the services of any other person
to aid him in the performance of such duty, he could
not be relieved in any way of responsibility for the full
discharge thereof. It is obvious that any person whom he
might so employ would become his personal agent. That
the defendant fully understood the nature of his employment
in this particular transaction, that it was personal and
not in any way associated with the duties as a clerk in the
Legation, appears in the affidavit filed in this record in
support of a motion for continuance in which he states

"That it was not the duty of the said Frederick T. Faulkner, by-
virtue of his office as clerk in the American Legation, to have
charge of the finances of the said Legation nor to negotiate and

]^98 I EXTRATERRITORIAL CASES.

sell drafts to any local bank in Peking drawn upon the Secretary of
State."

It follows, therefore, that the $5,858.68 local currency,
referred to, was received by the defendant from the Yoko-
hama Specie Bank, Limited, at Peking, as the agent or
servant of Henry P. Fletcher. It is not necessary at this
time to discuss who was the owner of the money thus de-
livered to him. It is sufficient to observe that it was not
the money of the defendant but the property of another
which came into his possession while he was acting as
Mr. Fletcher's agent and was received for and on account
of Mr. Fletcher. He had no property in said money and
could lawfully deal with it in accordance only with the
instructions of his principal or employer.

There can be no question that the moneys referred to
were by the defendant converted to his own use. In re-
sponse to an inquiry from Mr. Fletcher he had stated that
the accounts of the Legation were in proper shape when
he must have known that the particular account in ques-
tion which he had been instructed to pay was still unsettled
and that the money which he had received from the Yoko-
hama Specie Bank, Limited, had neither been applied to
the payment of this bill in accordance with instructions nor
been accounted for by him to Mr. Fletcher. Under the
pretence of going to Kalgan, where he was easily accessible
to Peking, he went to Shanghai and continued on to
Singapore. Thus when the bill of the Imperial Chinese
Telegraph Administration was presented in December, dis-
closing that the outstanding account for October had not
been paid, the defendant was neither in Peking nor in
Kalgan, but was beyond the jurisdiction, several thousand
miles away.

It remains to consider only whether embezzlement is a
crime within this jurisdiction. A demurrer was filed to the
information on the ground that embezzlement is a statutory
and not a common law offense, that there is no law of the
United States which makes the embezzlement of private
property a crime and that therefore the embezzlement of

UNITED STATES V. FAULKNER, JAN. 31, 1910. 199

private property by an American citizen in China does not
constitute an offense of which this Court can take cogni-
zance. Other grounds were assigned but are not regarded
as requiring discussion.

It is true that there is no general statute of the United
States which declares that the misappropriation of private
property shall constitute embezzlement. The same is true
as well respecting the misappropriation of public moneys,
excepting only certain classes of public officers who are
charged by law with the custody, disbursement or safe
keeping of public funds of the United States.^ But this
does not exhaust the body of law available to this court.
Following the Court of Appeals - we have to ascertain
whether "in legislating for territory over which the United
States exercises exclusive legislative jurisdiction" Congress
has made the act of misappropriation of moneys by an agent
or servant a crime. Paraphrasing the language used in the
case last cited and substituting embezzlement for obtaining
money under false pretenses, we find that on March 3, 1899,
Congress declared ^ that the fraudulent conversion to his
own use of any money, property or thing of another, by any
officer, agent, clerk, employee, or servant of any private
person or persons, constitutes embezzlement, and that the
act* of March 3, 1901, is practically identical therewith.
It does not appear that resort to the laws of any state is
necessary since these acts define the crime of embezzlement
and are "laws of the United States" ^ specifically extended
to the extraterritorial jurisdiction of China.

We therefore find that embezzlement is a crime within
this jurisdiction, and that the facts established by the tes-
timony presented in this case prove beyond a reasonable
doubt that the defendant is guilty thereof.

On February 1, 1910, the Court passed sentence of five
years' imprisonment.

'U. S. Rev. Stats, sees. 5488-5494.

* Biddle v. U. S., ante, p. 120.

*30 U. S. Stats, at Large, Sess. Ill, Ch. 429, tit. I, see. 46.

*31 U. S. Stats, at Large, Sess. II, Ch. 854, sec. 834.

' U. S. Rev. Stats., sec. 4086.

200 I EXTRATERRITORIAL CASES.

IN THE UNITED STATES COURT FOR CHINA.

Chiang Zung Match Factory Corporation v. Yek Tong
Lin Fire and Marine Insurance Company, Limited.

[Civil Action No. 78.]

SYLLABUS.
(By the Editor.)

1. PLEADING: DENIAL of a stipulation set forth in the petition can-

not be applied to any other stipulation.

2. Id. : Evidence and particulars need not be pleaded.

3. ARBITRATION AND AWARD: CONFLICT OF LAWS: IN AN EXTRA-

TERRITORIAL Court an agreement to arbitrate must be construed
according to the law of defendant's nationality.

4. Id. : Revocation. Under American law, such an agreement may

be revoked at any time prior to publication of the award.

5. Id. : Id. : Notice of such intention need not be given the adverse

party; it is sufficient if given to the arbit.-ators.

6. Id. : Id. : Id. : Form. No special form of such notice is required

tho it must be written if the submission was.

J. H. Teesdale, Esq., and W. S. Fleming, Esq., for plaintiff.
Arthur Bassett, Esq., for defendant.

on demurrer to answer.

[Filed April 4, 1910.]

Thayer, J.:

This is an action in which the plaintiff seeks judgment
in an amount assessed in an arbitration proceeding to which
he and the defendant voluntarily submitted. The plaintiff
is of Chinese nationality. The defendant is a fire insurance
company incorporated under the laws of the Philippine
Islands and therefore of American nationality. The in-
surance company had issued to the plaintiff three insurance
policies. A loss was sustained on the property insured.
The insurance company refused to admit liability in the
amount of the claim. The parties then agreed to arbitrate.
The agreement of submission to arbitration was in writing
and it provided that each of the parties should select one
arbitrator and that the two thus selected should choose an
umpire. At an early session of the board of arbitration
counsel of the respective parties entered into an oral stip-

CHIANG ZUNG CORP. V. INS. CO., APR. 4, 1910. 201

ulation by which the agreement of submission was ma-
terially amended.

Counsel for plaintiff has filed a demurrer to the answer
on ground of uncertainty. The argument in support of the
demurrer cited the well-known rules of code pleading ap-
plicable generally in jurisdictions within the United States.
The undeveloped condition of practice and pleading in this
jurisdiction does not, however, warrant strict construction
of such rules. Thruout the necessary period of its organiza-
tion this Court has been, and will continue to be, consistently
disposed to a liberal view with respect to formality of
pleadings. In the present instance the answer admits all
paragraphs of the petition excepting 6, 7 and 8, which are
denied in terms. But the answer goes on to say that de-
fendant is informed and believes

"that counsel for the defendant did stipulate that certain changes
should be made as to the procedure in the said arbitration and denies
that the said paragraphs numbered 6, 7 and 8, correctly set out said
stipulations. And the defendant further says that before the date
of the final award the said defendant withdrew from the said ar-
bitration, refused to attend the heai'ing before the said arbitrators
and umpire and revoked the said submission as altered by the said
stipulation."

The Court interprets the answer as directly traversing
said paragraphs. It denies that the specific stipulation re-
ferred to in the petition was made, but it must not be taken
as denying a different stipulation. The defendant is not
bound to set forth the differences of the latter stipulation
from the former. The plaintiff himself has not particular-
ized as to the stipulation he relies upon. In fact there are
no allegations as to the contents of any stipulations what-
ever, whether written or oral. The stipulations would
naturally be a subject of testimony. It is not necessary to
set forth in the pleadings the particulars of the stipulation.

In the last paragraph of its answer defendant avers that
before the date of the final award it withdrew from the
arbitration. It appears to the Court that if this averment
is sustained it will be fatal to the petition. Plaintiff thus
has notice of the character of the defense. The demurrer is

OVERRULED.

202 I EXTRATERRITORIAL CASES.

ON THE MERITS.
[Filed April 18, 1910.]

Thayer, /. {After stating the facts) :

The date on or before which an award was to be made
was waived and it was stipulated that the arbitrators, and
the umpire if necessary, should first consider and determine
the question of the liability of the insurance company under
its several policies and, second, in the event that the in-
surance company was found liable, that the arbitrators,
and the umpire if necessary, should proceed to determine
the amount of such liability.

Proceedings under the amended stipulation resulted in
a disagreement between the arbitrators respecting the
liability of the insurance company. The question, being
referred to the umpire, was decided adversely to the in-
surance company on one of the policies. It is the defend-
ant's contention that, at this stage of the proceedings and
before the arbitrators and the umpire had taken up for
consideration, under the amended submission, the question
of the amount in which said insurance company was liable,
the defendant revoked the agreement of submission.

In the course of trial it has developed that counsel for
the Chinese plaintiff and counsel for the American defendant
were both of British nationality. The arbitrators appear
also to have been British and the umpire chosen by them
was the Registrar of the British Supreme Court for China.
The arbitration thus proceeded under the atmosphere of
English law notwithstanding the fact that neither of the
parties was of British nationality. In the trial before this
court the plaintiff has been in part represented by associate
American counsel and the counsel for the defendant was
also American. Mention of these facts seems to be neces-
sary in order to have a proper understanding of the inci-
dents in this, cause. Counsel originally engaged by both
parties appear to have assumed that the proceedings under
the agreement of submission to arbitration would follow
the rules of English law and that the agreement itself and
the rights of the parties thereunder would be interpreted
and administered in accordance with said law. This was

CHIANG ZUNG CORP. V. INS. CO., APRIL 18, 1910. 203

doubly erroneous. The defendant being of American na-
tionality it necessarily follows that the adjudication must
be in harmony with American law.

Upon the evidence in the record the Court is well satis-
fied that the defendant insurance company intended to
revoke the agreement for the submission at the time in the
proceedings thereunder when the umpire declared the liabil-
ity of the insurance company under one of its policies. It
appears from the statements of British counsel in argument
that the English statutes do not admit of the revocation
of an agreement of submission except by consent of both
parties or by order of court. It is the common law rule,
applicable in this court, that either party to a voluntary
agreement of submission to arbitration may revoke said
agreement at any time prior to the publication of the final
award. This rule is followed and confirmed in many Amer-
ican jurisdictions and stands as a controlling rule except in
such as have by statute provided to the contrary.^ There-
fore, at the time stated, it was permissible for either of the
parties to have revoked the agreement of submission.

It will now be convenient to consider whether or not the
defendant insurance company disclosed its intent to re-
voke this agreement of submission sufficiently to effect its
revocation. It is in evidence that the defendant instructed
its counsel at an appropriate time that it would not proceed
further with said arbitration. These instructions were in
writing and clearly defined the intent and purpose of the
insurance company and they also instructed counsel to give
notice of such intention to the other parties to the said
proceedings. Said letter appears in the record and also
one from the defendant insurance company's counsel ac-
knowledging its receipt and advising them — "we have ac-
cordingly notified the assured's solicitor and the arbitrators
of your intention herein." The counsel who acted for the
insurance company in the arbitration proceedings appeared
as a witness in this case on behalf of the plaintiff. He states
that the action taken by his client was against his advice,
that he did not then believe that the insurance company

^ See Corpus Juris, V, 53. Ed.

204 I EXTRATERRITORIAL CASES.

had the legal right to revoke the said agreement and that
he considered that his client was absolutely wrong both
morally and legally. However, the evidence shows both
from his own testimony and from the testimony of the
umpire, that the defendant communicated with the umpire
and notified him that his client did not propose to proceed
further with the arbitration. The umpire who was also
a witness in the case confirms this statement. He testified :

"Mr. Ellis said that his client refused to have anything to do
further with the arbitration and that he would not be there and
attend the sittings."

It is not satisfactorily shown that notice was served by
the defendant's counsel upon plaintiff"'s. In fact Mr. Tees-
dale, counsel of record for the plaintiff in this case, testifies
that he never received any such notice. But no rule of law
has been found which makes it essential, in order to revoke
an agreement to arbitrate, that specific notice be given to
the other party of such intention. It is essential, however,
in order to make a revocation complete, that notice thereof
be given to the arbitrators ^ except in certain well-defined
cases. Neither is it necessary to the validity of the revo-
cation that it should be in any special form; it is sufficient
if the intention to revoke is clearly expressed.^ It is held
in many cases that it may be made even by parol. Upon
the evidence the Court is satisfied that the intent of the
defendant to revoke the submission to arbitration was suffi-
ciently disclosed to the umpire and the arbitrators.

It is a well recognized rule that the revocation must be
equal in dignity with the agreement for submission, that is
to say, if the submission was in writing, the notice of
the revocation must be in writing.* In this case the orig-
inal submission was in writing but subsequently it was
amended in several respects by oral stipulation. The effect
of such oral stipulation cannot be otherwise considered than
as a new agreement which must be classified as an oral one
subject to revocation by oral notice.

The Court finds:

1. That the defendant intended to revoke the agreement

= Id., 58. ^Id., 57. *Id.

KATZ ET AL. V. BARKOVITCH, JUNE 8, 1910. 205

of submission at the time immediately following the finding
of the umpire that the defendant was liable on one of its
policies.

2. That the oral notice actually given by the defendant
was sufficient.

The effect of revocation is to vitiate any subsequent pro-
ceedings by the arbitrators. Judgment is therefore ren-
dered in favor of the defendant and plaintiff's petition is
dismissed with costs.

IN THE UNITED STATES COURT FOR CHINA.

Maurice Katz et al., Appellant, v. H. Barkovitch,
Appellee.

[Civil Action No. 82; filed June 8, 1910.]

SYLLABUS.
(By the Editor.)

APPEALS from the Consular Courts to this Court cannot be perfected
without filing the petition setting forth the reasons as required
by sec. 41 of the Court Regulations.

George F. Curtis, Esq., for appellant.
W. S. Fleming, Esq., for appellee.

Thayer, J.:

This is an appeal from a judgment of the Consular Court
at Shanghai where judgment was rendered on May 7, 1910,
against the defendants there in the amount of $700.00 local
currency, with costs. On May 9, (May 8 being Sunday),
defendants' counsel filed in the Consular Court a petition
for issuance of writ of error out of this Court, reciting that
certain errors had been committed to the prejudice of the
defendants, concluding said petition with the statement
"all of which will more in detail appear from the assign-
ment of errors which is filed with this petition." On the
same date counsel also filed in the Consular Court a docu-
ment entitled "Petition for Writ of Appeal." No assign-
ment of errors or statement of grounds of appeal appears
attached to either of these petitions. On May 13, security

206 I EXTRATERRITORIAL CASES.

for judgment and costs having been deposited, the trial
judge allowed the appeal.

On May 27, the transcript of record was received in the
office of the clerk of this court with a certificate by the
clerk of the Consular Court as follows :

"I, ... do hereby certify the foregoing transcript to be a
full, true and correct copy of the docket entries in the above entitled
cause; and that, except the transcript of the evidence and defendants'
Exhibit "M," the same, together w^ith the exhibits, constitute the
transcript of the record herein upon appeal to the United States
Court for China. And I do hereby further certify that altho there-
unto notified so to do, the defendants have failed and neglected to
file w^ith this Court the stenographer's transcript of the evidence and
defendants' Exhibit "M," v^hich was w^ithdrawn from the files by
the defendants . . ."

The conditions upon which appeals may be made from
the Consular Courts include the following:

"Within five days after judgment, the appellant must set forth
his reasons by petition filed with the consul, which shall be transmit-
ted as soon as may be to the Minister, with a copy of docket entries
and of all papers in the case." ^

The provision that "appellant must set forth his reasons"
within five days after judgment, is mandatory and cannot
be construed otherwise than as a requirement that within
the time stated the appellant must file in the Consular
Court a statement of his grounds of appeal.

Counsel for the appellee has submitted a motion for
the dismissal of this appeal on the ground stated and also
on other grounds to which it is unnecessary to refer. The
regulation referred to is in harmony with American pro-
cedure 2 and so plain that a lajnman could not misunderstand
it. Having failed to comply with its simple requirements
the right of appeal was lost and it should not have been
allowed.

The motion is considered as a motion to docket and dis-
miss and, for reasons stated, it is granted, and the appeal
is dismissed. An order will be entered requiring appellants
to pay into this Court the proper fees and costs and re-

* Consular Court Regulations (1864), sec. 41.
- Corpus Juris, III, 1328 et seq. Ed.

UNITED STATES V. HADLEY, JUNE 17, 1910. 207

manding in due order the transcript of record to the Con-
sular Court for further appropriate proceedings therein.

IN THE UNITED STATES COURT FOR CHINA.
United States v. James B. Hadley.

[Criminal Cause No. 37; filed June 17, 1910.]

SYLLABUS.

(By the Editor.)

1. GAMBLING. Section 865 of the Act of Congress of March 3, 1901,

prohibiting the keeping and use of gambling devices, applied.

2. Id. : Agency. Said section is infringed by one who acts as agent

or servant of the owner of such device.

3. Id. : Id. : Evidence reviewed and found sufficient to show that the

accused had so acted.

W. S. Fleming, Special Counsel for the United States.
F. M. Brooks, for the defendant.

Thayer, J.:

A criminal information, filed by the Special Counsel for
the United States, charges that on June 7, 1910, in the
district of Shanghai and Empire of China at the premises
known as Number 9, Sicawei Road the defendant did set
up and keep a gambling device commonly called roulette
and which was then and there played for money. The
defendant enters a plea of not guilty.

The evidence establishes beyond reasonable doubt that
the offense charged was actually committed at the time
and at the place charged. The "premises known as Num-
ber 9, Sicawei Road" are also spoken of and identified
as "The Alhambra" and are described in the testimony
as of two stories. On the first floor or story are verandas
and several rooms used for entertainment, reception and
bar-rooms. A stairway leads from the first to the second
floor and the foot of it is separated from the rooms of the
first floor by an iron grill with a door to which is attached
a notice "For members only," and access to the second story
appears to be controlled by that door. The gambling device

208 I EXTRATERRITORIAL CASES.

specified in the information and proved to have been oper-
ated on June 7, 1910, was located on the second floor of
said premises.

These facts, together with other testimony in the record,
satisfy the Court that these premises were deliberately and
skilfully arranged to enable public gambling to be operated
and pursued under such conditions as would be likely to in-
sure parties interested against observation by officers of the
law or by other persons whom they might regard as inim-
ical to such proceedings. They illustrate old and familiar
methods a!dopted from time immemorial by professional
gambling houses whose owners or operators fear or believe
that they are engaging in a prohibited business and recog-
nize the necessity of making it difficult, if not impossible, for
the officers of the law to obtain direct evidence of their pro-
ceedings. It is noticeable that the provisions made for the
exclusion of the second floor of the premises in this case were
notoriously public. It is clearly established that the defend-
ant was, on the night in question, and at other times, in cus-
tody of the first floor of said premises and that on the date
specified in the information he allowed W. D. Miller, who
testified in this record, to pass thru the door in said grill and
reach the stairway leading to the second floor.

Defendant in his testimony stated that he had only two
keys in his possession neither of which was the key of this
door. The Court attaches no weight to said testimony for
reasons hereinafter stated. W. D. Miller's testimony on
this point is as follows :

"Q. Where was Mr. Hadley on this occasion, the evening of the
seventh of June of this year?

A. He was sitting at a table playing cards when I first arrived
there.

Q. Downstairs?

A. Downstairs.

Q. What did you do?

A. I went over and spoke to him. I had met him previous to
that. I spoke to him, and said, or we stepped up and had a drink
together and we talked for a little while and then I left him and went
into the hall and then over to the iron grill intending to go on up-
stairs, but I found the door locked.

Q. Was there a sign on the iron grill?

A. Yes, sir; "For members only."

UNITED STATES V. HADLEY, JUNE 17, 1910. 209

Q, Right at the cage?

A. Yes, sir. I intended to go up but I found the door locked and
a Chinaman standing there, a Chinaman leaning on the door or
against the door, and Mr. Hadley stepped up to the doorway in the
iron grill with the keys and opened the door and I went upstairs.

Q. Hadley unlocked the door in the iron grill for you?

A. Yes, sir; and pushed the door to after I went in.

Q. Did he close the door when you came down?

A. Yes, sir."

On more than one occasion the defendant excluded mem-
bers of the Shanghai municipal police. The defendant tes-
tifies that his duties were those of a peace officer only and
were limited to the first floor of the premises; that he was
a paid servant for that purpose only and that his employer
was one Mr. Nerriz, a French subject. But the defendant
told detective-sergeant McDonald and constable Wilson that
he was in general supervision of the place. His bearing
on the stand was not such as to impress the Court that he
was telling the whole truth and his testimony is entitled to
very slight weight on any points wherein it is contradicted.
He made various statements as to his powers inconsistent
with the limited authority to which he swears. In view of
the other evidence, his testimony that he did not know that
gambling was taking place on the second floor is so im-
probable as to justify the Court in regarding it as wilful
untruth. It aff'ects the credibility of defendant respecting
his whole testimony and his is the only testimony for the
defense.

In the very nature of this class of cases direct and ab-
solutely conclusive proof is usually impossible. The cir-
cumstances surrounding a particular case as disclosed in the
testimony, may be such as to satisfy the Court or the jury,
beyond reasonable doubt, of the guilt of an accused person,
altho direct and conclusive proof has not been submitted.
The Court is satisfied beyond a reasonable doubt that the
defendant was a part of the general gambling outfit on the
premises specified. Upon this state of facts the Court must
determine the guilt or innocence of the defendant.

It has been settled that the laws enacted by Congress for
the District of Columbia, at least so far as they relate to the

1400R O. W. 14

210 I EXTRATERRITORIAL CASES.

definition of criminal offenses, are operative in this juris-
diction.^ One of their provisions reads as follows:

"Whoever shall in the District set up or keep any gaming table,
or any house, vessel, or place, on land or water, for the purpose of
gaming, or gambling device commonly called ABC, faro bank, E 0,
roulette, equality, keno, thimble, or little joker, or any kind of gam-
ing table or gambling device adapted, devised, and designed for the
purpose of playing any game of chance for money or property, or
shall induce, entice, and permit any person to bet or play at or upon
any such gaming table or gambling device, or on the side of or against
the keeper thereof, shall be punished by imprisonment for a term of
not more than five years.'"

It will be observed that the persons who are made subject
to the penalties of that section are those who shall either
"set up or keep any gaming table," "or shall induce, entice,
and permit" any person to bet or play at or upon any gam-
ing table. There are several sections of the code of the
District of Columbia, besides the one quoted, relating
to the subject matter of gambling and one ^ of them
provides, among other things, that the court shall construe
those sections liberally "so as to prevent the mischief in-
tended to be guarded against," But the language of the
section is in itself so clear and broad in the judgment of the
court as not to' require a resort to such liberal construction.

In addition there are numerous reported cases in which
the general rule is announced that it is not necessary to prove
that a person keeping a gaming table contrary to law was
the owner thereof. He is equally guilty whether he acted
as principal or agent or servant of the owner. One of
the leading cases in which this rule is announced is that *
in which the court interpreted a statute of Maryland which
formed a part of the foundation upon which the several
sections referred to in the code of the District of Columbia,
relating to gambling, were based.

^ Biddle v. United States, ante, p. 120; Sexton v. United States,
ante, p. 187.

= Act of Congress of March 3, 1901, Sess. II, 31 U. S. Stats, at
Large, Ch. 854, sec. 865.

'Id. sec. 868.

'U. S, V, Conner, 1 Cranch (U, S, C, C), 102, Another case in
point is Toll v. State, 40 Fla. 169, 23 So. 942.

BROWN V. SEXTON, OCT. 28, 1910. 211

Upon the facts and law of the case the Court is satisfied
beyond a reasonable doubt that the defendant is guilty as
charged, and the Court so finds.

The defendant was sentenced to sixty days' imprisonment.

IN THE UNITED STATES COURT FOR CHINA.
Laura Brown, Plaintiff, v. Robert W. Sexton, Defendant.

[Civil Action No. 90; filed October 28, 1910.]

SYLLABUS.
(By the Editor.)

1. EXTRATERRITORIALITY: CONFLICT OF LAWS; MORTGAGES. The

validity of a mortgage registered at the Spanish Consulate in
Shanghai and covering property likewise registered, must be
determined by Spanish law.

2. Id. : Id.: Id.: Notice. Under said law a mortgage is not entitled

to registry, and does not constitute notice, unless executed be-
fore a notary.

F. M. Brooks, Esq., for plaintiff.
W. S. Fleming, Esq., for defendant.

Thayer, J.:

The material allegations are that Frank Gordon, being
owner of real property at Shanghai with buildings and
furnishings thereon, together known as the *'Alhambra
Gardens," the title deeds of which were registered in the
Spanish Consulate at Shanghai, executed and delivered to
James H. Brown on June 12, 1907, a mortgage thereon in
the sum of Mexican $60,000; that the mortgage was
registered in the Spanish Consulate; that on October 13,
1909, in execution of a judgment for Mexican $56,000,
obtained in the Spanish Consulate against Frank Gordon
by Robert W. Sexton, the premises were sold at public
auction and were bought for Taels 36,000 by Robert W.
Sexton and title deeds thereof were registered and issued
to him ; that Robert W. Sexton, at the time of the sale and
the issuance of the title deeds, had notice of the existence
of the mortgage; and that the petitioner, Laura Brown,
wife of James H. Brown, is assignee of the mortgage.

212 I EXTRATERRITORIAL CASES.

The petition is for a decree that Robert W. Sexton holds
the property under and subject to said mortgage.

The above recited allegations of the plaintiff are not
disputed excepting, first, as to the character and effect of
the transaction claimed to constitute the mortgage and,
second, as to the knowledge of the mortgage by the de-
fendant.

The jurisdiction by the Spanish Consular Court of the
person of Frank Gordon and of his real and personal prop-
erty at Shanghai was established by said Court and the
locus of the contract and of the property it affects is iden-
tical. The peculiarity that the same real property situate
in Shanghai may, by reason of the existence here of treaty
rights of seventeen powers, and the fact that extraterritorial
jurisdiction of real property follows that of the owner's per-
son, be subject now to the jurisdiction of one power and
again to that of another, does not affect the operation of
the principles of private international law involved in the
present action. The law applicable to the person, the
contract and the property subject to the judgment referred
to, is Spanish law. All parties dealing with defendant
must be presumed to have had knowledge of his status as
a Spanish subject and of the provisions of the Spanish law
by which his property rights would be protected and his
legal obligations determined.

The law of Spain relating to mortgages was proved by
the testimony of Sr. Carlos Sostoa, Consul for Spain, whose
presence at the trial and whose learning in the law greatly
aided the Court. Copies of the Spanish Civil Code, ar-
ticles 1857, 1875 and 1880 and of the Spanish Law of
Mortgages, articles 2, 3, 23, 27, 146 and 396 were put in
evidence in translation into English on the oral verifica-
tion of Sr. Sostoa. Article 3 of the Law of Mortgages
reads :

"To permit the record of the title deeds mentioned in the preceding
article [which include mortgages] they -.iiust be in the shape of a
public writing, writ or certified document issued by a judicial author-
ity or by the Government or its agents in the form prescribed by
the regulations."

BROWN V. SEXTON, OCT. 28, 1910. 213

Articles 1857 and 1875 of the Spanish Civil Code require
that mortgages be drawn and executed before an officer
known as a notary having quasi- judicial authority and fol-
lowing certain statutory formalities. Article 1875 of the
same code provides that it is indispensable to the validity
of a mortgage that it be recorded in a record kept by the
notary and styled a "register of property." In connection
with his other functions the Spanish Consul at Shanghai
has, by law, the functions of a notary.

The instrument in question was not drawn or executed
before the Spanish Consul in his capacity as a notary. It
was therefore not entitled to be, and was not, recorded in
the "register of property." Consequently the recording of
it in another record removed it from the provisions of
article 23 of the Spanish Law of Mortgages which makes
entry in the "register of property" constructive notice to
"third persons," i. e., to persons who, according to article
27 of the same law, have not participated in the recorded
instrument. In the purview of the Spanish law the in-
strument relied on by the plaintiff as a mortgage was there-
fore not a valid mortgage and the record given to it was
not a notice of its existence.

Under the well known principles of private interna-
tional law, Spanish law applies and is decisive of the
invalidity of the instrument and the failure of notice, and
must be given effect.

"Generally speaking," says Story,^ "the validity of a contract is to
be decided by the law of the place where it is made * * * jf valid
there, it is by the general law of nations, jure gentium, held valid
everywhere by the tacit or implied consent of the parties. The rule
is founded, not merely in the convenience, but in the necessities, of
nations ; for otherwise it would be impracticable for them to carry on
an extensive intercourse and commerce with each other. * * *

"The same rule applies, vice versa, to the invalidity of contracts;
if void or illegal by the law of the place of the contract, they are
generally held void and illegal everyv/here. This would seem to be
a principle derived from the very elements of natural justice. * * *
If void in its origin, it seems difficult to find any principle upon which
any subsequent validity can be given to it in any other country."

'Conflict of Laws (8th ed.), sees. 242-3.

214 I EXTRATERRITORIAL CASES.

The application of these principles to the evidence in
the present action is clear. The instrument is not a valid
mortgage. It did not serve as notice to the defendant.
It did not attach to the property as a lien against subse-
quent purchasers.

The petition is dismissed with costs.

IN THE UNITED STATES COURT FOR CHINA.

R. M. NOBLSTON, Plaintiff, v. Vacuum Oil Company,

Defendant.

[Civil Action No. 83; filed Nov. 3, 1910.]

SYLLABUS.
(By the Editor.)

1. CONTRACTS: EVIDENCE reviewed and found insufficient to show

delivery of one of the letters, alleged to form part of an uni-
lateral contract.

2. Id. : Employment: Interpretation. An allowance of commissions

on "your net marine sales" covers not only the first sales to
customers obtained by the employee, but also subsequent, tho
unsolicited, ones.

3. Id. : Id.: Id. Plaintiff's services found to have been continuous

and his promised commissions due until paid.

W. S. Fleming, Esq., for plaintiff.
Arthur Bassett, Esq., for defendant.

Thayer, J. :

The plaintiff w^as for a period of about twelve years an
employee of the defendant company as a salesman upon a
fixed salary. On May 31, 1910, he was dismissed from the
company's service and all his claims on fixed salary account
were paid. Shortly thereafter he made demands upon the
company for certain commissions on what were designated
as "net marine sales" which he alleged were due him and,
the company having refused or failed to comply with said
demands, this suit is brought to secure an accounting and
a payment to the plaintiff of the amount, if any, thus found
due.

NOBLSTON V. VACUUM OIL CO., NOV. 3, 1910. 215

The plaintiff bases his cause of action on a certain letter,
bearing date February 21, 1906, from defendant to plaintiff,
the original of which is in evidence, and which reads :

R. M. Noblston, Esq.,

Shanghai.
Dear Sir:

Confirming arrangements outlined in my personal letter this will
serve to advise you that we shall allow you 42% (four and a half per
cent) on your total net marine sales commencing from January 1st
this year but with the understanding that we do not bind ourselves
to continue this arrangement and that we reserve the right to cancel
or modify same at any time we may think proper. We also reserve
the right to transfer you to any other district we may find necessary
and we wish it to be clearly understood that whenever you cease to
be connected with the Company either by your own desire, or our
wishing to dispense with your services, no further commission shall
accrue on sales.

Your travelling expenses will be allowed, and should be charged
up thru your daily reports as usual with vouchers attached.

Hoping that you will find this arrangement to your entire satis-
faction, and awaiting your confirmation.
Yours very truly,

T. Lemon.

It will be observed that said letter opens with a reference
to "my personal letter" which, however, the plaintiff was
unable to produce and the defendant offered in evidence
what was alleged to be a copy thereof which reads as
follows :

February 21, 1906.
Dear Mr. Noblston:

I have to explain that the Company are averse to having anything
in the way of charges for entertaining appear on their official records
and so I am arranging to make you a special allowance in the form
of a commission on your monthly sales and leaving you this money
to spend in any way you like for the furthering of business. This
change will come into force from the commencement of this year
and from that date we will give you a credit of Al'/t (four and one
half per cent) on your total sales to the Marine Trade. I am advis-
ing you of this personally so that you will understand why we in our
official letter are arranging to allow you any commission at all.

The money you will spend as your judgment dictates and you will
not be required to give any account of it. You will of course under-
stand that you will not be in order to charge any expenses for enter-

216 I EXTRATERRITORIAL CASES.

taining in future and your daily reports will be collected in this
respect from January 1st this year to date. It will however be quite
in order for you to charge up traveling expenses as formerly.
Trusting you will find this change to your satisfaction,

Yours very truly,

T. Lemon.

The plaintiff contended that the official letter constituted
the contract between the parties and that the personal letter
referred to in its opening paragraph must be considered
as extrinsic matter and was not admissible to vary any
of the terms of the contract as set forth in the official
letter. The court is satisfied that the rule invoked does
not apply and that the two letters, called personal and
official respectively, if satisfactorily proved, would together
reasonably constitute the writings from which the actual
agreement of the parties would necessarily be deduced.

But the plaintiff denies that he received the so-called
personal letter. He testifies that his understanding of the
terms offered to him respecting commission on sales were
that said commissions were intended as additions to his
salary allowance. If the evidence offered by the defendant
established convincingly that said letter was sent to and
delivered to the plaintiff the court would not be inclined to
accept the mere statement of the plaintiff that he had not
received or seen said letter as sufficient to relieve him
from its terms. The direct reference thereto in the
letter which he did receive would reasonably have re-
quired him, in his own interest, to ascertain its terms.
It does not appear in evidence that he made any effort
in this direction. It is difficult to excuse his failure in this
respect. A man of his evident business sense would na-
turally, as a matter of ordinary prudence, have sought to
ascertain what were the "arrangements outlined" in the
letter referred to and thus to know exactly what were the
intentions of the company. However, as the letter of the
company addressed to the plaintiff and received by him
is clear in terms and by itself justifies the interpretation
that the commissions allowed were intended to be in ad-
dition to salary, we think that the burden of proof as to
verity of the copy offered and as to the fact that said

NOBLSTON V. VACUUM OIL CO., NOV. 3, 1910. 217

letter was actually delivered to the plaintiff, is upon the
defendant company.

The evidence offered on these points is far from conclu-
sive. Mr. Bottenheim, the present general manager of
the defendant company in Shanghai, was its only witness.
In his direct examination he testified that such a letter
had been sent to the plaintiff but his subsequent testimony
is less positive. The letter bore the signature of Mr.
Lemon, the former manager, who was superseded by Mr.
Bottenheim in November, 1907, and who is not now within
the jurisdiction of the Court. However, Mr. Bottenheim
was assistant manager at the time when these letters were
alleged to have been written and he testifies to personal
knowledge of these transactions.

This evidence is accepted as satisfactorily establish-
ing that the copy of letter offered in evidence is a
true copy of a letter written and signed by Mr. Lemon
as of the date February 21, 1906. But the testimony is
not conclusive as to the allegation that said letter was
actually handed or forwarded to plaintiff and no testimony
is offered tending to show that said letter actually reached
him. At that stage the papers were parts of what might
be described as an unilateral contract. The plaintiff was
already in the employ of the defendant on a stated salary.
He was seeking increased compensation. It sufficiently
appears in evidence that he was a trusted and valuable
employee who might reasonably be asking an increase of
salary. The so-called official letter, on its face, may be
reasonably construed as granting an increase. If it was
to the intent of the company concurrently to advise the
plaintiff that it was not so to be construed, the necessity of
giving notice thereof promptly and surely to the plaintiff
is obvious. If by misadventure, of any kind, for which he
was not responsible, the ' plaintiff failed to receive said
letter and thus had no knowledge of its contents, he could
not be bound by its terms. While therefore, as hereinbefore
stated, the plaintiff was put on guard by the reference in
the opening paragraph of the so-called official letter, the
facts of the case and the nature of the transaction as shown
in this record are such as to put upon the defendant a

218 I EXTRATERRITORIAL CASES.

much heavier burden to bring actual notice of the contents
of this letter to the plaintiff. The defendant offered no
evidence tending to show that the letter ever reached the
plaintiff. Mr. Bottenheim's testimony is to the effect that
a general letter, such as disclosed by the copy offered in
evidence, was written in the office and sent to all the re-
presentatives of the company in the Shanghai district.

It appears from the evidence that commissions for only
one riionth (January, 1906) were paid. Mr. Bottenheim tes-
tified that the sum thus paid was returned to the company
by the plaintiff. This was denied by the plaintiff. It would
appear that if this repayment had actually been made,
the books of the company would have furnished the best
evidence thereof. If the fact of repayment were thus es-
tablished, it would have been of weight in determining
whether or not the plaintiff had actual knowledge of the
contents of the personal letter. No such proof was ten-
dered by the defendant. The whole transaction was such
that, in the court's opinion, the defendant should be reason-
ably held to clear and conclusive proofs. It was of course
legally competent for the company to disclose its intentions
in two letters, one referring to the other. But if, by its
fault or neglect, one of these communications failed to reach
the plaintiff, and the plaintiff received the other letter and
accepted its terms being in themselves clearly stated, the
company must bear the burden of its own fault. On the
evidence in the record it is held that rights of the parties
to this controversy must be determined by the terms recited
in the official letter alone.

The next matter requiring consideration is whether or
not the service of the plaintiff was continuous during the
period extending from January 1, 1906, to May 31, 1910.
The defendant in its answer alleges that from some time
in July, 1908, to some time in November of the same year,
the plaintiff was not in its employ but was during that
period, in the service of Diedrichsen, Jebsen & Company
of Vladivostok. The salary of the plaintiff during the
period named was paid by the Vladivostok firm, which firm
was one of the agents of the defendant company, but
plaintiff's expenses were paid by defendant. It does not

NOBLSTON V. VACUUM OIL CO., NOV. 3, 1910. 219

appear to the court that the circumstances of the case justify
a recital in detail of the evidence submitted on either side
respecting this question. It is sufficient to say that upon
the whole evidence the court finds that, for the purposes
of this contract, the plaintiff was in the continuous employ
of the defendant during the whole period in controversy.

The next question is to what extent, if any, the plaintiff's
claim is affected by the fact that he received no payments
on account of said commissions except for the month of
January, 1906. It is admitted by the plaintiff that he at no
time made any demand for payment thereof until after
he was discharged from the company's service in May, 1910.
He testifies that he had the assent of Mr. Lemon, the
manager at the time, to allow these credits to accumulate
on the books of the company. This testimony has not been
met directly. It is not claimed that there was any written
assent on the part of Mr. Lemon. The testimony of Mr.
Bottenheim may be taken as a denial that there is any exist-
ing evidence in the records of the company's office showing
such assent and no precedent for such action. However,
the letter fixes no time for the payment of the commissions
to be allowed. In the absence of any provision for the
time of payment the allowance must be regarded as due
until paid. Whether or not Mr. Lemon assented to post-
ponement of payments does not appear to be material.

The next question is the status of the plaintiff as an
employee of the company. He claims that he was its chief
salesman in the district. His contention is denied by the
company. On the evidence he is entitled to be regarded as
an employee of the company who made sales and cannot
be held to have occupied any special position. It seems
quite probable that he was the oldest in service and the
company's most capable and efficient, and at times its only,
salesman in Shanghai ; but the evidence does not go farther.
The letter recites that the commission is to be allowed on
"your net marine sales." The language is plain and cer-
tain. It can not be extended to cover anything more than
its terms reasonably imply, i. e., plaintiff's individual sales.
From the nature of the business, plaintiff's long service
with the defendant and the value of said service as

220 I EXTRATERRITORIAL CASES.

clearly shown in the evidence, it seems fair and reasonable
that the term "your" should be interpreted to cover not
only the first sales to company patrons obtained by the
plaintiff but likewise all sales subsequent to the same party
tho not personally solicited by plaintiff. But he is not
entitled to interest and the question of costs will be deter-
mined later.

An order on the defendant company for an accounting in
harmony with these findings will be entered and plaintiff's
counsel may submit a proper draft.

IN THE UNITED STATES COURT FOR CHINA.
C. R. Bennett, Plaintiff, v. F. M. Brooks, Defendant.

[Civil Action No. 87 (verified from docket) ; filed December 3, 1910.]

SYLLABUS.
(By the Editor.)

1. PROCEDURE of American Courts in China is fixed primarily by

the Regulations of 1864 as modified and supplemented by the
Judge of this Court.

2. Id. : Parties. Nothing in said procedure prevents a party from

disclosing his interest at any stage of an action.

3. Id. : Id. : One who is not a party to the action cannot, as a rule,

be a party to the judgment.

4. Id. : Id.: Intervention after judgment, by a stranger claiming

to be the real plaintiff, denied where the result would be to
prevent the defendant from setting off another judgment in
his favor.

5. Id. : Set Off of recipi'ocal judgments is discretionary with the

court.

Messrs. G. H. Wright and S. Fessenden, for plaintiff.
G. H. Wright, Esq., for alleged assignee.
Messrs. F. M. Brooks and W. S. Fleming, for defendant,
opposing petition of alleged assignee.

Thayer, J.:

In this case the amount sued for was Taels 8,450,
alleged to be the purchase price of certain rubber shares
purchased by the plaintiff under instruction of the de-
fendant. The record discloses that before the case was set

BENNETT V. BROOKS, DEC. 3, 1910. 221

down for trial the defendant submitted an offer to counsel
for the plaintiff to confess judgment on condition that
plaintiff deposit the shares in controversy with the clerk
of this court, to be turned over to defendant as soon as
the judgment should be satisfied. Following this tender
and in accord therewith, counsel for plaintiff delivered the
shares to the clerk and the defendant, on the following
day, November 8, 1910, filed his confession authorizing
judgment to be entered to the full amount claimed, with
interest and costs.

On November 9, 1910, the defendant filed with the clerk
an assignment to himself of a judgment against the plaintiff
in this case, obtained in this court, ^ on November 3, 1910,
for Taels 8,993.38 and costs, and submitted a motion for an
order to set-oft this judgment against that confessed by him
in the pending cause. Up to this stage of the proceed-
ings no parties in interest had appeared other than the
plaintiff and the defendant. But on November 12, 1910,
the verified petition of a third party, "The Cathay Trust,
Limited," a Hongkong Corporation doing business in Shang-
hai, was filed, asking leave to be joined and heard as an
interested party on said motion.. In said petition it is al-
leged in substance:

1. That on June 29, 1910, C. R. Bennett, the plaintiff in this cause,
had transferred by a document in writing to said corporation all his
right, title and interest in respect of all sums of money due and
payable to him by the defendant in this cause growing out of the
June settlement on the Shanghai Stock Exchange as set out in the
petition filed in this action.

2. That by virtue of said assignment the said Cathay Trust, Lim-
ited, is the absolute owner of all said sums due and owing by F. M.
Brooks.

On November 26, 1910, plaintiff filed a so-called "peti-
tion," with substantially the same averments as in that of
the Cathay Trust, adding in paragraph 3,

"That the said action, C. R. Bennett v. F. M. Brooks, was brought
at the direction and for the use of the said Cathay Trust, Limited."

Assuming these allegations to be true, the vital question
for consideration seems to be whether or not the assignee

' Loa Lai Ting et al. v. Bennett.

222 I EXTRATERRITORIAL CASES.

of Bennett can be allowed to intervene at this stage in the
face of the prior claim for set-off by a judgment creditor
of Bennett. When the motion came on for hearing the
court allowed counsel appearing for the Cathay Trust, Lim-
ited, to participate in argument on condition that he limit
his discussion to the question stated.

But for the intervention sought on the part of the Cathay
Trust, the application for set-off would readily have been
granted, that matter being determinable at the discretion
of the court.- What is the position of the Cathay Trust?
It alleges that Mr. Bennett is the nominal plaintiff in this
suit and that the company is the real party in interest by
virtue of an assignment made to it by Bennett. Counsel
argues that under these circumstances it was allowable to
bring the suit in the name of Bennett but that any declar-
ation that he was the nominal or legal owner of the choses
in action involved in the suit and petitioner the real owner,
would have been fatal. No authority is cited in support
of this contention and none is known to the court.^
The procedure of this court is regulated by the organic
act, which provides that it shall be in accordance, so far as
practicable, with the then existing procedure of American
Consular Courts in China which is prescribed in the Court
Regulations. So far as defining the character and form of
the pleading by which a plaintiff, in a civil action on a con-
tract, shall initiate an action, Regulations 1 and 3 appear to
be the only ones relating thereto and they impose no re-
strictions on the pleader. The same section of the creating
act gives to the judge of the court authority to amend and
supplement said rules but the rules cited remain as they
stood at the time when the act was passed. It is quite
obvious on reading these two regulations that they con-
templated a plain and simple statement of the facts upon
which the plaintiff is seeking to recover and that it was not

^Freeman, Judgments (4th ed.), sec. 467a; Act of Congress of
March 3, 1901, Sess. II, Ch. 854, sec. 1571.

^ Doubtless counsel were relying on the rule that "every action
must be brought in the name of the real party in interest." Act of
Congress of June 6, 1900, 31 U. S. Stats, at Large, Sess. I, Ch. 786,
tit. II, sec. 25. Ed.

BENNETT V. BROOKS, DEC. 3, 1910. 223

intended that the refinements of common law pleading
should be exacted.*

The court knows of no reason why the parties interested
in this case should not have been disclosed. If, by reason
of failure to do so, the rights of one claiming to be the
actual party in interest are put in jeopardy, the excuse
offered, that he was restrained from disclosing his interest
in the original petition by any rule of pleading having force
in this court, has no foundation. And it is equally true that
such interest could have been disclosed in any formal or in-
formal way at any stage of the proceedings prior to judg-
ment so as to have been effective, certainly, as against the
defendant, and probably as against all third parties.

The record discloses Bennett as plaintiff and as the only
party in interest. How long can the assignee safely keep
silent respecting his interest in these choses in action? Is
he charged with no duty to protect his interests by giving
full notice? The contention of counsel seems to be that no
burden of this character rested upon the Cathay Trust, that
it could step in at any time, whether before or after judg-
ment, and whether before or after some judgment creditor
against Bennett had sought to secure relief for himself by
impounding this judgment in Bennett's favor with a dis-
closure of its interest and that upon such disclosure the
court must immediately allow intervention and ignore all
possible intervening interests. A mere statement of this
contention carries its apparent refutation as in conflict with
the reason of the law which requires due diligence of
every assignee of choses in action, as against rights which
may accrue to third parties without notice.

And here it may be noted that while counsel stated in
argument that Brooks had notice of this assignment, no
such averment is made in the petition. Mere statement
of counsel on such a material point does not afford found-
ation for judicial action. The general rule is that no one
can be treated as a party to a judgment who was not
also a party to the action.^ There are exceptions to
this general rule, but there are none which in prin-

' See Chiang Zung Match Factory v. Yek Tong Lin F. & M. Ins.
Co., ajite, p. 201.

° Freeman, Judgments (4th ed.), 157.

224 I EXTRATERRITORIAL CASES.

ciple would include an assignee whose interest was
not disclosed before judgment or before the assertion of
any other claim by third parties. This does not con-
travene the familiar rules in equity which counsel has cited
in relation to recognition of an assignee's rights in a suit
where the action is brought in the name of the assignor.
Such rights are subject to timely assertion under equally
familiar rules.

Such are the facts and the law applicable in respect to
which this third party now asks leave to intervene upon
the assertion that he is the real party in interest. If his
allegation that he held an assignment from the plaintiff of
those choses in action be accepted, it is quite obvious that
he has not been diligent in disclosing said interest and that
no reasonable or lawful excuse has been offered therefor.
The judgment tendered as a set-off is a judgment recently
rendered in this court against Bennett, the plaintiff in this
cause. An inspection of the record shows that the action
against Bennett was filed August 10, 1910, prior to the
date of instituting this cause.

No defence was made. Judgment was by default. That
action was based on a promissory note which bears date
April 21, 1910, long prior to the date alleged as that of
assignment from Bennett to the Cathay Trust. If such
assignment was made as alleged, it is quite obvious that
in making it Bennett ignored this obligation then outstand-
ing. It is true that the obligation had not at that time been
reduced to judgment but it was so reduced prior to any
disclosure on the part of the Cathay Trust that it had any
interest in the case at bar. As such, on the facts now on
this record, it appeals more strongly for equitable consider-
ation than does the belated claim of the Cathay Trust,
Limited.

This court has recently tried a case ^ relating to share
transactions in which judgment has not yet been announced.
But enough evidence appears in the record of that cause to
indicate that the plaintiff there had an agreement with
the Cathay Trust, Limited, covering an assignment similar

* Shekury v. Brooks, post, 225.

SHEKURY V. BROOKS, DEC. 19, 1910. 225

to that now disclosed. There, as here, no direct and de-
finite disclosure of interest on the part of the Cathay Trust
was made. And the same is true in a recent case ' in the
British Supreme Court, to which counsel referred in argu-
ment. The court will indulge in no presumptions by reason
of this consistent suppression of its claim as a real party
in interest. It is just to say that the Cathay Trust has
exhibited no affirmative desire, when opportunity was of-
fered, of taking the court into its confidence and thus per-
mitting adjudications to be made in the fullest light. That
the Cathay Trust did not do so in the case at bar resulted
wholly from its own voluntary act. It chose not to disclose
its interests until other rights without notice had attached
to this judgment.

In the court's view on the showing made the Cathay Trust
is not entitled to intervene at this stage and its petition is
denied.*

The motion for set-off is granted and will be given effect
in accordance with the terms of the defendant's confession
of judgment.

IN THE UNITED STATES COURT FOR CHINA.
G. I. Shekury, Plaintiff, v. F. M. Brooks, Defendant.

[Civil Action No. 88; filed December 19, 1910.]

SYLLABUS.
(By the Editor.)

1. EXTRATERRITORIALITY: CONFLICT OF LAWS. In the extraterri-

torial courts in China the law normally applied is the lex fori,
i. e., that of defendant's nationality.

2. WAGERING CONTRACTS. The doctrine of Toeg & Read v. Suffert

{ante, p. 112) adhered to but evidence found insufficient to show-
that plaintiff knew of defendant's unlawful intent and recovery
allowed.

3. Id. : The Measure of such recovery is the difference between the

"making up" price and the buying price plus brokerage.

^ Michael v. Carmichael.

* This was reversed on appeal. See post, p. 256.

14008 O. W. 15

226 I EXTRATERRITORIAL CASES.

4. Id. : Double Commissions. But where the broker acts for both
parties and claims commissions fx'om each, recovery will be
denied.

Messrs. G. H. Wright and S. Fessenden, for plaintiff.
Messrs. F. M. Brooks and W. S. Fleming, for defendant.

Thayer, J.:

This is an action to recover the cost of certain rubber
shares alleged to have been purchased by the plaintiff under
instructions of the defendant.

The plaintiff is a member of the Shanghai Stock Exchange
and claims that in the several transactions he was acting
merely as a broker and agent of the defendant and that
he followed the latter's instructions and the rules of the
exchange. In support of his claim he submits in evidence
what are designated as "purchase" and "sales" notes cover-
ing each of the transactions alleged. Each of said "pur-
chase" and "sales" notes bears the heading "for the con-
cerned" the names of the principals not being disclosed.
The plaintiff" seeks to have the defendant held bound by
contracts thus made in his behalf and sues for indemnifi-
cation in amount of the cost price of the shares thus con-
tracted to be purchased. All of the transactions occurred
during the months of April, May and June, 1910, and were
for future delivery, that is, on the June settlement day, 1910.

Plaintiff' raises the question as to what law shall be ap-
plied in adjudicating the issues in this case. The defendant
being an American citizen the foi^ni is a court of the
United States. This follows the uniform rule that, in an
extraterritorial jurisdiction, all disputes are referred for
settlement to the court of the defendant's nationality and
are adjudicated in that court in accordance with the law
of the country of whose judicial system it forms a part.
In China, extraterritorial jurisdiction is exercised by some
seventeen foreign governments. The right thus exercised
by each government within Chinese territory rests upon
substantially identical treaty provisions. Each foreign
power possesses jurisdiction over its own nationals and
each thus has its forum.

SHEKURY V. BROOKS, DEC. 19, 1910. 227

Each country also prescribes its own body of law to be
administered in such forum. It is equally true also that in
the exercise of such jurisdiction, China represents a terri-
torial locus to each of said countries, to which the rights of
property and person of its own citizens respectively must re-
late and to which they must be referred whenever disputes
arise. In these respects each country stands upon exactly
the same ground. In view of these conditions the court
is unable to discern that there is any novel rule or prin-
ciple which can be invoked in this court by reason of the
fact that the existing controversy is in an extraterritorial
court and that the two parties are of different nationalities.
The general principles determining the choice of law in
any controversy in every American court must be the same.
It may be that extraordinary difficulties will arise in deter-
mining the choice of law in a particular case in an extra-
territorial court. But it is true also that similar, if not
greater, difficulties may be met in a case in a home court
into which some foreign element intrudes.

We know of no authority upon which any assumption
can be based as to the intent of the parties respecting the
law which should settle their disputes other than that fixed
by the nationality of the defendant. The mere fact that one
party was a member of a stock exchange thru which he
was dealing and to which the transactions related and that
such stock exchange was not an American corporation,
would afford no rational ground upon which to justify a
court in excluding its own laws from operation.

The fact that the Shanghai Stock Exchange is a Hong-
kong corporation does not necessarily bring any foreign
element into the cause. It is itself a foreign corporation
to all jurisdictions in China and it would be novel doctrine
that when a corporation invades foreign territory it carries
with it for its protection the law of the place of its creation.
The status of companies originating under the Hongkong
Ordinances, whose business is transacted and whose direc-
tors reside entirely outside the Colony of Hongkong, seems
not to be definitely determined.^

^ Re Dallas Horse Repository, Hongkong Supreme Court, October
31, 1910.

228 I EXTRATERRITORIAL CASES.

Generally speaking the choice of foreign law in any court
follows the recognition of a right which has become vested
under the clear provisions of the particular foreign law
invoked and respecting which the court can have no trace
of doubt. This case comes far short of furnishing a state
of fact of this character and the court is unable to perceive
any rational ground upon which to resort to any body of
law other than that which would determine the rights of
the defendant if plaintiff were also an American citizen.
The reasons upon which the court is asked to make an
excursion in seeking to discover the intent of the parties,
are too vague and uncertain to admit of their acceptance.

Counsel for the plaintiff also discusses the question as to
whether wagering contracts are illegal under the law avail-
able to this court. This discussion turns mainly upon the
definition of common Imv as used in the acts conferring
jurisdiction on consular courts in China and in the act
creating this court. The Court is satisfied with the defini-
tion of commo7i law heretofore given and applied. -

The defendant claims that there was a clear understand-
ing between the plaintiff and himself that defendant was
not intending actually to buy any shares, that no delivery
to him of shares was contemplated and that the settlement
between him and the plaintiff was to be made only on dif-
ferences. His principal defense is that the several transac-
tions referred to constituted wagering contracts and that
the plaintiff cannot recover for services rendered or losses
incurred in connexion therewith.^

Defendant testified in the most explicit terms that the
plaintiff knew of his purposes to deal only in differences;
that he had so dealt with one Bennett, also a member of the
Shanghai Stock Exchange, for the March settlement and
that he had declared to plaintiff that he intended to make
no investment in rubber shares and that he had no money
with which to make such investment. His testimony on
these points is direct and specific. The court has no dif-
ficulty in accepting it as representing his actual purpose in

- Toeg & Read v. Suffert, ante, p. 113,
'Id.

SHEKURY V. BROOKS, DEC. 19, 1910. 229

these transactions. Such purpose was entirely consistent
with the wild speculation in rubber shares which at that
time widely prevailed in Shanghai and which, as the tes-
timony shows, affected all classes. Dealing in rubber shares
had developed into a mania which infected both brokers
and people and furnished little suggestion that many of the
participants had any thought of making actual investments.
The circumstances are such as to make it probable that the
defendant was merely seeking illusive profits out of specu-
lation on differences.

The testimony of the plaintiff conflicts on this point with
that given by defendant. Altho the court was not strongly
impressed with its candour and sincerity, the plaintiff's
denial of the defendant's material allegations is sufficiently
clear. He had been a member of the Shanghai Stock Ex-
change for many years but he had not been, in recent years,
actively engaged as a broker. He had resumed work as
a broker attracted by the unexampled activities of the
rubber share market. He was fully acquainted with the
conditions then prevailing. As a broker he executed or
attempted to execute large orders without exacting money
advances or security from his client. Obligations were
recklessly assumed. The circumstances recited tend to
support defendant's testimony that in these transactions
he was not buying rubber shares with a view to actual
delivery. They tend also to corroborate defendant's con-
tention that the plaintiff understood his purpose to deal
only on differences. Some additional weight adverse to
the plaintiff must also be given to the fact that he concealed
from the defendant the names of parties from whom he
purchased, thus allowing a possible inference to be drawn
that he was himself a principal in these transactions and
that the so-called "purchase notes" were only memoranda of
transactions in differences between himself and the defend-
ant.

The court finds no rule of the Shanghai Stock Exchange
requiring the suppression of the names of principals. Such
a practice has been described as a custom of the Exchange.
There is no evidence in the record that such custom was
brought to the knowledge of the defendant. Whatever

230 I EXTRATERRITORIAL CASES.

presumptions may arise as to the knowledge of regular rules
of the exchange, printed and in common circulation, no
such presumption can be indulged respecting mere customs.
Knowledge of customs must be established by affirmative
proof.

"A custom among brokers in the settlement or differences which
works a substantial and material change in the principal's rights or
obligations is not binding upon the principal without his assent; and
that assent can be implied only from knowledge of the custom which
it is claimed authorizes it.'"

Such a custom is inherently vicious. It obviously opens
a way to frauds of various kinds as has been recognized and
commented upon by the courts. On the other hand the
fact that the plaintiff, after receiving instructions to buy,
in each case went into the market and made actual contracts
of purchase and thus assumed large personal obligations as
a member of the Shanghai Stock Exchange, is entitled to
weight by way of corroboration of his denial of knowledge
of defendant's purposes. These and other inferences, which
may be logically drawn from evidence in the record, with
the equal credence to which the two parties are entitled,
make it somewhat difficult to determine on which side the
preponderance lies.

There is no evidence that the other principals were deal-
ing in differences or had any agreement with the defendant
in reference thereto. In fact the evidence discloses that
the several principals had no contract with each other in
any of the transactions. But there is evidence as to the
method of settlement among brokers. Such settlements
were made by clearing-house methods, one broker's obliga-
tions and credits being set off against another's and a bal-
ance finally declared as between them. It is granted that
this method may be so conducted as to be entirely just and
fair but it is obvious also that it is open to abuses and
that it has been adopted mainly for the convenience of
brokers. The concealment of names of principals and the
balancing of obligations on the day of settlement tends to
make possible evasions of the law and rights predicated

'Irwin V. Williar, 110 U. S. 499, 28 L. ed. 225.

SHEKURY V. BROOKS, DEC. 19, 1910. 231

on such customs or methods of procedure are reasonably
subject to severe scrutiny.

It is contended that no wagering contract can exist with-
out a conjunction of parties with the same vicious intent;
that in order to constitute a gaming contract in share trans-
actions there must be affirmative proof that both principals
intended to deal only in differences and also that no obliga-
tion rested on either party to accept delivery of shares. On
the facts of this case the court cannot accept this doctrine
as well-founded. It has given careful consideration to the
able argument of counsel for the plaintiff on this point.
The authorities are somewhat conflicting. In most cases
examined, however, the conflict is more apparent than real,
resting either on varying conditions of fact or on varying
state statutes. In the Massachusetts case ■' cited the broad
statement of general principles does not appear to have
been essential to the disposition of the cause. The doctrine
announced appears to this Court to be out of harmony with
the underlying principles recognized in the leading Federal
case above cited where the rule is clarified and does not
bear the narrow construction sought to be given to it by
counsel. The jury considered the evidefice as a ivhole and
based its verdict thereon, drawing all proper inferences as
to the real intent of the parties.

If the broker to whom orders were given in this case
understood the intent of his client and assented thereto,
he was bound by knowledge of the unlawful design and
having made contracts in furtherance thereof he became
particeps criminis. Not only would he be tainted with
knowledge of the defendant's unlawful intent but he would
become a principal himself in so far as determining the
character of the contract between himself and his client.
This grows logically out of the mere necessities of the case.
Otherwise it would be rarely possible to prove a gambling
contract which has been disguised into semblance of a
legal contract.

But in this record as stated the oral testimony on the
material fact was confined to the two parties to the suit.

'Barnes v. Smith, 159 Mass. 344, 34 N. E. 403.

232 I EXTRATERRITORIAL CASES.

The evidence thus given is entitled to equal credence.
However, the question of fact as to whether or not plaintiff
was particeps criminis to defendant's unlawful intent must
be determined upon the whole record. His knowledge
and assent thereto must be established affirmatively and in
the opinion of the court the evidence submitted falls short
thereof.

Defendant's testimony is balanced by plaintiff's and other
evidence submitted, on either side, leaves that balance un-
disturbed. The defense that the transactions were gam-
bling contracts upon which the plaintiff could not recover,
must be rejected.

In following the instructions of defendant, plaintiff made
contracts of purchase with six different parties two of
whom were fellow brokers and members of the exchange.
The remaining four were not members of the exchange but,
so far as the record discloses, were selling their own shares.
The purchases from the latter class were as follows :

P. Zurn, 200 Anglo-Javas Taels.... 32.00

A. Tabbah, 200 Siaks do 23.00

A. Tabbah, 200 Siaks do 16.00

W. Afah, 300 Anglo-Javas.. ..:... do 18.50

In all of these four transactions the plaintiff acted as
broker and agent for both principals, receiving or claiming
commissions. On cross-examination he testified as follows :

Mr. Brooks — Q. Mr. Shekury, I have been looking over the con-
tracts here and I see most of them are with outside parties such as
Afah — they had been clients of yours for some time, had they not,
prior to my dealings with you?

A. No; not Afah.

Q. Zurn? A. Zurn was. Afah came after your dealings with
others.

Q. And you were selling for him to me?

A. I sold for him and bought from him for you.

Q. And in the same transaction?

A. Yes, sir.

Q. And Zurn, the same?

A. Yes, sir; and others too.

Q. You had sold for them and bought for me and you were the
broker?

A. Yes, sir.

SHEKURY V. BROOKS, DEC. 19, 1910. 233

Q. What brokerage charge did you make on each side?

A. One half per cent on each side; that is the custom.

Q. You collected that brokerage from the persons you sold the
shares for to me?

A. I have collected from Tabbah.

Q. You are suing me for that brokerage also?

A. No; we are entitled to I per cent from each, the seller and the
buyer. As a seller I have collected from Tabbah.

Q. But you are suing me for that?

A. No; for my brokerage as a buyer for you.

Q. And you got your brokerage for selling for Tabbah?

A. I got i per cent as my brokerage.

Q. On two thousand taels?

A. I got ten taels.

Q. When you settled with him you paid him ten taels less than the
number of shares came to?

A. Yes, sir.

Q. And you are charging me brokerage or commission on the same
taels?

A. Ye?, sir.

Q. But still you never paid that ten taels to Tabbah?

A. No, sir. We are entitled to two commissions on a transaction
where we buy and sell both. We get i per cent from the buyer and
2 per cent from the seller.

Q. On the same transaction?

A. Yes, sir.

We find no rule of the Shanghai Stock Exchange to this
effect. Rule 76 appears incapable of such construction.
But if such a rule had been adopted by the Stock Exchange
it would be so repugnant to fundamental principles govern-
ing the duties of agents, that it could not be recognized as
having any force as a legal rule.''

The rule announced in the authorities cited that a contract
made under such circumstances is voidable at the option
of either party, is uniformly sustained by the courts. We
are unable to find any decisions contra. The integrity of
the rule seems to be beyond dispute and the four contracts
referred to v^^ith Zurn, Tabbah, and Afah, cannot be en-
forced against the defendant.

"Wadsworth v. Adams, 138 U. S. 388, 34 L. ed. 984; Mechem,
Agency, sees. 454, 455, 943, 952, 972; Huffcut, Agency, 110, 111;
Wald's Pollock on Contracts (3d Am. ed.), 388.

234 I EXTRATERRITORIAL CASES.

The two other transactions were with other brokers

namely,

N. E. Kadoorie,
100 Anglo-Javas at Tls. 32 3,200.00

Noel, Murray & Company,
300 Anglo-Javas at Tls. 18^ 5,550.00

In these transactions the plaintiff appears to have en-
tered into obligations for purchase of shares in accordance
with the rules of the stock exchange. He did so in the
discharge of his duties as agent imposed upon him by the
defendant who thus incurred a liability from which he
cannot escape on the allegation that in the ultimate settle-
ment of these transactions on settlement day they were
not adjusted in the usual way and in accordance with the
rules of the exchange. Defendant's liability had already
attached before he attempted to repudiate the contracts
thus made in his behalf and he must indemnify the plaintiff
against that liability.

The only difficulty met by the court is in determining a
just measure of damages. On this question the state of
fact, as shown in the record, is practically identical with
that existing in case " recently decided in the British Su-
preme Court in Shanghai. This court has been greatly
aided in the consideration of this case by the analysis of
facts and the clear exposition of the law applicable thereto,
which appear in the opinion of the learned Judge, Sir
Havilland de Sausmarez, who presided in that cause. The
measure of damages adopted was the difference between the
making up price at the June settlement and the buying
price, plus brokerage, and the same measure is adopted here
as affording the only reasonable basis upon which the Court
can act. In this case, as in that cited, plaintiff has furnished
no evidence to aid the court in assessing damages in his
favor, except the price which he was enabled to pay the
Shanghai Stock Exchange pool thru credit given by the
Cathay Trust. It is obvious to the Court that the rights
and obligations of the defendant are unaffected by the

' Michael v. Carmichael.

IN RE BARCHET'S ESTATE, MAR. 21, 1911. 235

plaintiff's action in that connexion. The list of making-up
prices is in the record as Defendant's Exhibit A.

Judgment will be for plaintiff for Taels 2,793.75 and costs.

IN THE UNITED STATES COURT FOR CHINA.
hi re S. P. Barchet's Estate.

[Special proceeding No. 88; filed March 21, 1911.]

SYLLABUS.
(By the Editor.)

1. LAND TITLES: COURTS: JURISDICTION. The International Mixed

Court of Shanghai has no jurisdiction to set aside the confirma-
tion of a deed by a superior Chinese official.

2. Id. : Under the system of land tenure in Shanghai, controversies

between Chinese regarding title to land included in a Taotai's
deed to an American, should be adjusted thru diplomatic chan-
nels.

Messrs. Je7'nigan & Fessenden, for petitioner Woo Zung
Sung.

William S. Fleming, Esq., for petitioner Koh Chee Wen.

Thayer, J.:

The proceedings herein relate to certain real property
registered in the American Consulate General at Shanghai,
as U. S. Lot No. 1102, property of the late Stephen P.
Barchet, whose estate is now in course of administration
in this Court.

It appears from the evidence that the said deceased was
not the real or actual owner of this land but merely the
registered owner. He held it in trust for one Hsu Pei Chi,
from whom he received the land and to whom he executed
a declaration of trust in conformity with what is repre-
sented to be the local system of land tenure in Shanghai.
However, the record title was in Barchet in the form of
a perpetual lease, the evidence of which is an instrument
issued by the Taotai and bearing his "chop", the legal
effect of which is a certification from, that high Chinese

236 I EXTRATERRITORIAL CASES.

oflficial that the title purporting to be conveyed by the in-
strument is good and sufficient under Chinese law.

Some time in January, 1910, one Koh Chee Wen, other-
wise known as Koh Kwei Foh, filed a petition in this
Court, alleging that he was the actual owner of said land;
that it had come to him by inheritance; that the said
Barchet had no legal or equitable interest therein, and
that the registration thereof in the American Consulate
had been effected without the petitioner's knowledge and
consent and in fraud of his rights. The petitioner asked
for a decree that he is the sole, equitable and beneficial
owner of said land and that the said Barchet at the time
of his death was his trustee. He asked that the executrix
of the decedent's will be directed to assign and transfer
the registered title and deed of said land to a nominee
or nominees of said petitioner. Due notice of this proceed-
ing was given, under the direction of the Court, to the
executrix and to the party claiming title under decedent's
declaration of trust which, it is alleged, had been trans-
ferred by Hsu Pei Chi to one Woo Zung Seng.

The cause came on for hearing: The executrix stood
neutral, filed no answer and offered no opposition. The
petitioner submitted in evidence a copy of a judgment
rendered in the International Mixed Court of Shanghai
on October 30, 1909, wherein the same tract was involved,
the defendant therein being in possession and claiming
under a lease from the petitioner in this case. Judgment
was adverse to the plaintiff and is here quoted in full :

"The defendant of this case has occupied a piece of land owned
by the plaintiff and constructed a building thereon without the con-
sent of the plaintiff. The plaintiff endeavored to prevent the de-
fendant from constructing the building, but the defendant refused
to stop the work. Therefore, the plaintiff filed a petition in this
Court against the action of the defendant. Subsequently one Kwoh
Kwei Foh alias Koh Chi Fen, represented by Mr. Fleming, appeared
before thf Mixed Court and stated that the land in dispute was left
for him by his father. He had leased it to the Chiang Sun Match
Co., for the purpose of constructing a factory. He held the fangtan
and the tax receipts for the same lot. He never sold his property to
anybody and did not know how the plaintiff registered it as a U. S.
Lot and obtained the title deed. He found that some unlawful tipao,
Chow Wen Pang, Pah Chi Tzen and Hsu Lu Yai, had intrigued one

IN RE BARCHET'S ESTATE, MAR. 21, 1911. 237

Hsu Pei Chi to deceive the authority and have the land in question
shenkoed in Hsu's name. This land was apparently stolen and sold
by them.

The Court believes that the land is owned by Koh Kwei Foh and
the land was certainly left by his father, because he can produce the
fangtan and the tax receipts for the land. Apparently some men
stole this land and sold it to Dr. Barchet. Dr. Barchet has secured
the title deed.

In the Settlement the title deed is a good and sufficient proof as
to the ownership of any lot. It could not be cancelled at any time.
Otherwise, the foreign land-owners in the settlement would create
a serious diplomatic dispute. The Chiang Sun Match Factory has
already constructed the building. They could not give up the con-
struction work. Koh Kwei Foh is hereby ordered to consult with
the plaintiff and to settle it themselves, within three months. If
Koh Kwei Foh does not consult and settle this dispute with the plain-
tiff within three months he must have the building removed. Koh
Kwei Foh is allowed to file a petition in this Court against those who
sold their land secretly and unlawfully. The Court will have these
. defendants tried before the evening Court, in some most just way.

If the plaintiff and the defendant will not surrender to this judg-
ment they are authorized to make an appeal to the higher tribunal
within two weeks." ^

This Court, at the time, accepted that judgment as con-
clusive on the questions involved and as a determination
of the controversy between two Chinese subjects by a com-
petent Chinese Court, and, on April 22, 1910, ordered a
decree entered in favor of the petitioner granting his several
prayers. Later, on the same day, Woo Zung Seng, who
claimed to be the assignee of Hsu Pei Chi of the declaration
of trust executed to him by the said Barchet, filed in the
Clerk's office a petition setting forth certain grounds upon
which he prayed that the matter involved in the petition
of Koh Chee Wen be reopened and the decree be reviewed
and the last petitioner be given opportunity to be heard by
counsel. This latter petition was granted and counsel have
been heard both orally and by briefs.

Upon review of the record the Court is satisfied that
the decree directed to be entered was not justified by either
the law or the facts. This Court has no jurisdiction over
controversies between Chinese subjects. It sufficiently
appears that Barchet had at the most only a nominal

' Barchet v. Chiang Sun Match Factory.

238 1 EXTRATERRITORIAL CASES.

interest in said land, viz., such commissions as he might
have been entitled to for services rendered as trustee of
the actual owner. This fact is admitted by both parties to
the present controversy. This Court has to deal alone with
the Taotai's deed and such deed, it now appears to the
Court, must be regarded as legally effective unde.' Chinese
law,= until it is set aside or declared to be invalid by some
competent Chinese couit.

Two questions now present themselves: (1) Is a judg-
ment of the Mixed Court in Shanghai on this matter final
and conclusive of this controversy and entitled to be so
regarded by a foreign court? (2) Was the particular judg-
ment in this matter sufficient in terms to justify its ac-
ceptance as a final judgment of the controversy between
these two Chinese subjects?

These material and vital questions were not fully pre-
sented to the Court at the hearing on the original petition.
Excuse is given for the present petitioner's default in ap-
pearance which the Court accepts as sufficient. The Court
believes that both questions must be answered in the
negative.

The purpose for which the Mixed Court was organized
and its procedure, are not clearly defined. It seems to
have been adopted as a tribunal for the purpose of trying
cases in which the defendants were Chinese and into which
some foreign interest intruded. It may be that it was a
proper tribunal in which the suit of Barchet versus Chiang
Sun Match Factory should have been first instituted. But
however that may be it is not shown to this Court that
the Mixed Court possessed any power to review and set
aside the Taotai's action in approving the deed to Barchet.
On the contrary, it is contended that the Taotai is a judicial
officer who is superior in rank to the Mixed Court magis-
trates and who exercises control and appellate jurisdiction
over the Mixed Court as respects controversies that are
purely Chinese. On the showing made in this record the
judgment of the Mixed Court cited cannot be regarded as
a final adjudication of the controversy and for this reason

' See Macdonald v. Anderson, ante, p. 77. Ed.

IN RE BARCHET'S ESTATE, MAR. 21, 1911. 289

under familiar rules such judgment cannot be given con-
trolling effect in a foreign court.

This conclusion is strengthened when careful considera-
tion is given to the terms of said judgment. Therein the
Court appears to have been satisfied on the evidence before
it that the defendant (Koh Kwei Foh) was the real owner
of the land and that the land had been stolen and sold to
Dr. Barchet. But the Court at the same time apparently
recognized that Dr. Barchet's title was not assailable in
that Court. It said:

"In the settlement the title deed is a good and sufficient proof
as to the ownership of any lot. It could not be cancelled at any-
time. Otherwise, the foreign land owners in the settlement would
create a serious diplomatic dispute."

This must be construed as a i ecognition by the Court that
it was without authority to enter any judgment affecting
the integrity of any foreign deed which had received the
chop of the Taotai. The order directing the entry of judg-
ment in favor of the petitioner Koh Kwei Foh is rescinded.

It remains to be determined what action, if any, should
be taken by the executrix of the Barchet estate by reason
of the state of facts set forth herein. The estate stands
neutral between two contending Chinese claimants.

It is obvious that the trusteeship standing in the name
of the testator at the time of his decease should be ter-
minated at the earliest possible date and that the duties
and obligations thereof should be disassociated from the
administration and settlement of said estate and not
obstruct its final settlement. For this purpose an order will
be entered directing the executrix to transfer the title
standing in the name of Dr. Barchet to some third party,
nominated by counsel of the two petitioners with the ap-
proval of the Court, who shall hold such title as trustee
under its direction. Upon the selection of such trustee and
after conveyance to him of the said title, a separate and
further order will be entered requiring him as such to
submit a full statement of the issues raised in this case,
to the American Consul General, with a request that he
submit the matter to the Shanghai Taotai for appropriate
action.

240 I EXTRATERRITORIAL CASES.

IN THE UNITED STATES COURT FOR CHINA.
Edward Bell, Plaintiff, v. W. E. Sauer, Defendant.

[Civil Action No. 91; filed April 7, 1911.]

SYLLABUS.
(By the Editor.)

1. CONTRACTS: EVIDENCE reviewed and found to establish a contract

for the purchase of shares.

2. Id. : Statute of Frauds. By the weight of American authority

such a contract is within the Statute of Frauds.

3. Id. : Id. : The Memorandum required by the statute need be signed

only by the party against whom the contract is to be enforced.

Messrs. Jernigan & Fessenden, for plaintiff.
William S. Fleming, Esq., for defendant.

Thayer, J.:

This is an action to recover damages alleged to have been
suffered by reason of breach of contract for the purchase
of certain rubber shares. The evidence shows that on oi'
about March 31, 1910, plaintiff was informed that de-
fendant desired to purchase one hundred Anglo-Java
rubber shares. This information was communicated to
plaintiff by a third party and under his instructions plain-
tiff's brother, in his presence and on the day named, had
a conversation over the telephone with defendant, advised
him that he could have one hundred shares of said stock
at Taels 42 per share for the June delivery of 1910,
and asked him to accept and confirm said tender in writing
if he desired the shares on said terms.

On the day after said conversation, the defendant for-
warded to the plaintiff a written confirmation in the fol-
lowing terms :

"I hereby confirm having purchased from Mr. Edward Bell one
hundred (100) Anglo-Java Rubber E. X. shares at Tls. (42) forty-
two each for June delivery, 1910."

Defendant's version of the telephone conversation re-
ferred to differs from that given by the plaintiff in this
respect. He asserts that he called plaintiff's office and had
a conversation with plaintiff's brother, advised him that

BELL V. SAUER, APRIL 7, 1911. 241

he desired to purchase one hundred shares of Anglo-Javas
and was advised that if he would send in a confirmation
statement or note his order would probably be accepted
and that following such statement he did forward to the
plaintiff the said confirmatory memorandum.

In the face of this conflict the Court must observe that
plaintiff's testimony is corroborated by that of his brother,
who conducted said conversation over the telephone and by
the wording of the memorandum wherein defendant says, "I
hereby confirm having purchased," etc. On its face this
would appear to relate to a transaction which had been
initiated by a tender from the plaintiff and which had
resulted in a verbal contract of which the written memo-
randum was to operate as a confirmation, A further com-
munication was made by defendant to plaintiff upon the
same date, in which he asked the plaintiff to let him have
two hundred additional shares of Anglo-Javas "at the same
price as those just contracted, i. e., Taels 42 per share." On
the following date, April 2, he wrote the plaintiff with-
drawing this request for the additional two hundred shares
and stating in the same letter "you have my confirmation
of purchase of yesterday's date which of course stands
good."

The matter quoted from these two letters corroborates
strongly the testimony submitted in plaintiff's behalf as
to the fact of an actual contract having been made between
the parties for the purchase and sale of one hundred shares
of Anglo-Javas. The statements in writing made by de-
fendant are not susceptible of any other interpretation
than that he clearly and distinctly understood that he had
entered into a contract with the plaintiff for such pur-
chase.

II.

Defendant claims that the contract is within the Statute
of Frauds and is not enforcible because the amount involved
exceeds fifty dollars and the memorandum was not suffi-
cient. The property involved in this transaction consisted
of shares in a corporate company whose capital was prin-
cipally real estate.

14008 O. W. 16

242 I EXTRATERRITORIAL CASES.

There is conflict of authority in American decisions as to
whether contracts for the sale of shares of stock in a cor-
poration are within the Statute of Frauds. Counsel for
the defendant has cited a case/ in which bank stock is
declared within the statute but a later expression of the
same court - is to the contrary, and in both cases the state-
ments were obiter dicta. However, the weight of author-
ity in the United States is that contracts for the sale of
stock are within the Statute of Frauds.^

We have in this case a contract which was initiated and
completed by verbal offer and acceptance and which is
evidenced specifically in writing by one of the parties. Sec-
tion 17 of the Statute of Frauds, observes Benjamin,*

"requires the writing to be 'signed by the parties to be charged,' etc.,
and the 4th section, 'by the party to be charged,' etc. Under both
sections it is well settled that the only signature required is that of
the party against whom the contract is to be enforced. The contract,
by the effect of the decisions, is good or not, at the election of the
party who has not signed."''

In the one case "^ to be assumed in conflict, the decision
did not rest upon any interpretation of the Statute of
Frauds, since there was a lack of mutuality and the con-
tract would fail by reason of that defect and not by reason
of its failure to be reduced to writing. The cases cited in
opposition to the general doctrine cannot be accepted, the
conflict being one of appearance rather than of reality.

Under the authority cited the Court must hold that the
contract as established by the evidence in the record satis-
fies the requirements of the Statute of Frauds. It only
remains to determine the amount of damages to which the
plaintiff is entitled by reason of the breach of contract.

'Colvin V. Williams, 3 Harris & Johnson (Md.) 38.

'Webb V. Baltimore, 77 Md. 92.

'Am. & Eng. Ency. of Law (2nd edition), XXIX, 9G1, and cases
cited; Browne, Statute of Frauds (4th ed.), sec. 258.

* Sales (7th Am. ed.), sec. 255.

' See also p. 234 of the same work; Allen v. Bennett, 3 Taunt. 169;
Thornton v. Kempster, 5 Taunt. 786; Lathoarp v. Bryant, 2 Bing
(N. C.) 735, 3 Scott 238; Reuss v. Picksley, L. R. 1 Exch. 342, 35 L.
J. Exch. 218.

•Wilkinson v. Heavenrich, 58 Mich. 574, 26 N. W. 139.

NEE CHANG MOW V. ANDREWS ET AL., NOV. 6, 1911. 243

The evidence offered respecting the amount of damage
suffered is not sufficient to give much assistance to the
Court. The contract was for the June delivery which
could mean nothing else than the delivery day in that
month fixed by the Shanghai Stock Exchange. In the ab-
sence of satisfactory proof the Court is unable to find any
more reasonable basis for ascertainment of damages than
that furnished by the making-up price adopted by the Stock
Exchange for the June settlement, which for Anglo-Javas
was fixed at Taels fifteen.

Judgment will be entered for plaintiff for Taels twenty-
seven hundred and costs.

IN THE UNITED STATES COURT FOR CHINA.

Nee Chang Mow, Plaintiff, v. Andrews & George,
Defendants.

[Civil Action No. 98; filed November G, 1911.]

SYLLABUS.
(By the Editor.)

1. JITDGMEKTS: ENFORCEMENT. A proceeding to enforce a judgment

is one at law.

2. Id. : Id. : Misjoinder. Such a proceeding cannot be joined with

one to recover on an independent claim.

3. NE EXEAT. Grounds for writ of, held insufficient.

Geo. F. Curtis, Esq., for plaintiff.

Messrs. Jernigan & Fessenden and C. R. Holcomb, for
defendants.

Thayer, J.:

The complainant is proceeding by a bill in equity for
(1) Enforcement of a judgment alleged to have been ren-
dered in the American Consular Court at Shanghai, China,
on January 8, 1903; (2) an accounting for a certain
sum of money alleged to be due from defendants to the
complainant and which the Consular Court, it is alleged,
recites as being the subject of suit between another party
and refuses to make any award pending said suit; (3) a
writ of 7ie exeat repubhca.

244 I EXTRATERRITORIAL CASES.

After filing original bill and after filing of answer by-
defendant and in absence of objection from defendants,
complainant was allowed to file an amended bill to which
defendants have demurred.

1. As to amount covered by alleged judgment (Tls.
2,370.48 with interest and costs) it is not alleged that execu-
tion was ever had or attempted to be had. If judgment was
obtained as alleged, it was rendered in the American Con-
sular Court, which court at that time had presumal)ly full
jurisdiction and continued to have full jurisdiction for
about three years thereafter until the United States Court
for China was created on June 30, 1906, at which time
the Consular Court was deprived of jurisdiction in a civil
cause where the amount involved exceeded five hundred
dollars, U. S. currency.

Execution not having been had in the trial court and
that court meanwhile having lost jurisdiction by reason of
the amount involved, it probably follows that any further
proceedings in the matter would have to be taken in this
court. The action of this court would wholly depend upon
the case as presented.

It is fundamental that action for the enforcement of a
judgment is one at law. It is clear that plaintiff's remedy is
a simple action in debt. Certainly no ground is laid in the
bill that the remedy at law on this judgment will be in-
adequate.

2. As to amount alleged to have been paid to defendants
by the complainant, it appears not to have been embraced
in the judgment. So far as the bill discloses, the amount
claimed is for a certain amount of money alleged to have
been paid to the defendants by the complainant. It would
appear that the remedy would be in an action at law
altho the allegations made in reference thereto are in-
sufficient to admit of any specific holding on that point.
The Court is satisfied on the averments made in the bill
that, whatever remedy may be appropriate for this item,
whether at law or in equity, a bill in equity joining this
item of claim with a judgment claim, is fatally defective.

3. It follows that no case is presented upon which the
Court can grant a writ ne exeat republica.

ROSS V. ISRAEL, DEC. 9, 1911. 245

As affecting the action of the Court on this demurrer,
consideration has been given to the fact that nearly nine
years have been allowed by the claimant to elapse, since
judgment in the Consular Court, without execution. While
it is possible that claimants' legal rights may not be barred
by this long delay, such delay breeds staleness and tends
to minimize ground upon which to appeal to the conscience
of the Court.

The demurrer is sustained. The bill is dismissed.

IN THE UNITED STATES COURT FOR CHINA.

Eric M. Ross, Liquidator of the Talang Rubber Estates,
Limited, Plaintiff, V. Arthur J. Israel, Defendant.

[Civil Action No. 99; filed December 9, 1911.]

SYLLABUS.
(By the Editor.)

1. PLEADING: PARTICULARITY. A petition by the "liquidator" of a

foreign corporation should allege the particulars of his appoint-
ment and authority.

2. Id. : Fraud should be specifically and clearly pleaded.

Messrs. Jernigan & Fessenden, for plaintiff.
W. S. Fleming, Esq., and Ellis, Hays & Godfrey, for de-
fendant.

Thayer, J.:

This cause came on for argument upon demurrer to the
complaint, the first ground being that the plaintiff has no
legal capacity to sue. The petition avers that plaintiff is
a British subject and the duly appointed liquidator of the
Talang Rubber Estates, Limited, a British corporation,
duly organized and existing under the laws of the British
Crown Colony of Hongkong.

The objection rests upon the general rule in pleading
that the exclusive right of action rests in the party who
holds the strict legal title. The petition in this cause re-
cites the claimant as "Liquidator," a term little known in
American law, but which undoubtedly corresponds to the

246 I EXTRATERRITORIAL CASES.

office of Receiver, familiar to American jurisprudence.
While there is some conflict of authority in different Amer-
ican jurisdictions as to the right of action resting in a
Receiver, the tendency is to recognize such right. But in
the present case the petition alleges that the corporation
is a foreign one and that plaintiff has been duly appointed
liquidator thereof. Such appointment must have been
made, if at all, in obedience to the provisions of some
foreign law and as the result of process in some foreign
court. In order to perfect the pleading and give such notice
as under general rules the defendant is entitled to have,
it would seem essential that the petition should recite not
only the general fact of such appointment but the par-
ticular foreign court in which the proceedings were had,
the date thereof and the statute or law under which it
was made. This fuller statement appears necessary in
order that the defendant may be placed in a position to
raise such objections as to him may seem appropriate either
to the jurisdiction of the court or to the legal effectiveness
of the said proceedings. Great precision appears neces-
sary because the corporation is a foreign one, controlled
and regulated by the provisions of foreign law. Assuming
that the first paragraph of the petition should be amended
as suggested it would appear immaterial whether the
claimant in this case is recited as Eric M. Ross, liquidator
of the company, or the company be recited as by Eric M.
Ross, liquidator.

The other grounds for demurrer are more generally stated
as relating to lack of precision and fullness of statement.
A large amount of damages is claimed upon the averment
that plaintiff has been induced to enter into a contract by
fraudulent misrepresentations on the part of defendant and
his agent. It is a fundamental rule, both at law and in
equity, that where a cause of action arises upon an allega-
tion of fraud, the mere general averment of fraud is in-
sufficient. There must be a full and specific setting out
of the facts upon which the charge is predicated. The
statement must be clear and concise and made with suffi-
cient particularity to apprise the defendant of what he is
called upon to answer. Paragraphs 6, 8, 9 and 10 of the

UNITED STATES V. FERNANDEZ, DEC. 2 0, 1911. 247

petition obviously do not comply with this fundamental
rule.

It seems clear also that the defendant is entitled to have
notice in the petition of what specific misrepresentations
have been made by him and what are alleged to have been
made by the party who is asserted to have been his agent,
how these representations were made, whether orally or in
writing, where, and the approximate dates when they were
made. In other words the particulars of these transactions,
upon which the plaintiff relies as fixing the responsibility
for damage alleged to have been suffered, should be set
forth specifically.

For the reasons stated the demurrer is sustained and
permission is granted to the petitioner to amend his peti-
tion in accordance herewith.

IN THE UNITED STATES COURT FOR CHINA.
United States v. Frank Fernandez.

[Criminal Cause No. 52; filed December 20, 1911.]

SYLLABUS.
(By the Editor.)

GAMBLING. Mere possession of a gambling device in a place suitable
for its operation constitutes an offense under the law in force
in this jurisdiction.

Dr. F. E. Hinckley, U. S. Dist. Atty., for the prosecution.
Stirling Fessenden, Esq., for defendant.

Thayer, J.:

The language of the statute ^ is such that the Court must
assume that the offense that Congress had in mind was the
operation of a table or of some gambling device or the
setting up of such a table for the purpose of its operation.
That was the mischief intended to be guarded against, as
described in section 868. Now it does not follow that in

' Act of Congress of March 3, 1901, Sess. II, 31 U. S., Stats, at
Large, Ch. 854, sees. 865 et seq., p. 1331.

248 I EXTRATERRITORIAL CASES.

every case where a charge of this sort is brought it is
essential in order to secure conviction to show by positive
proof that a device of this character, being in the posses-
sion of the party accused, has actually been operated, or
that someone has seen it in operation. Possession, along
with other circumstances, may be construed as a guilty
possession — as a possession of someone who intended, if
a suitable opportunity came, to operate it for gaming pur-
poses. If intent to use the device for gaming purposes is
sufficiently disclosed by the evidence, a violation of the law
is established.

In this case the machine, which is obviously within the
definition of a gambling machine, was in the dining-room
next to the bar-room, in a place where naturally a machine
of that sort would be located if intended to be operated.
That is quite difi'erent than if it were in some place to
which the public did not have access. It was in a place
convenient for operation. But here is a case where the
government shows no operation. At best, the evidence dis-
closed the possession of this machine by the accused for a
very short time. The Court is impressed with the fact
that probably this machine never was operated. Still the
accused cannot escape certain inferences that must be
drawn, it seems, by reason of the continuance in his posses-
sion of such a machine. It was there and could have been
operated if the opportunity and temptation were strong
enough. The maintenance of such possession is not only
sufficient to excite the strong suspicion of a purpose to
operate it unlawfully but justifies an inference that there
was such a purpose.

Defendant is entitled, of course, to the benefit of all doubts.
The intention of Congress as to the interpretation of this
provision, however, is clearly stated in section 868, altho
the general provisions of law are that penal statutes shall
be construed strictly. The Court is satisfied that if there
has been any violation of the law it has not been a serious
one, but still the presence of this machine, in a place where
it could be easily utilized in violation of the law, is reason-
ably intended to be prohibited.

Under the circumstances the Court will find the defendant

STEINER V. FRAZAR & CO., DEC. 19, 1911. 249

guilty but the offense is of such a character that he believes
that a minimum penalty is justified and will operate as a
notice to every one interested in the possession of machines
of this character that their presence in places where they
can be utilized will not be tolerated by the Court if brought
to its attention.

A fine of twenty-five dollars is imposed.

IN THE UNITED STATES COURT FOR CHINA.
R. W. Steiner, Plaintiff, v. Frazar & Company, Defendant.

[Civil action No. 100; filed December 19, 1911.]

SYLLABUS.
(By the Editor.)

1. CONTRACTS: FORMATION. To convert an offer into a contract the

acceptance must be unconditional.

2. Id. : Quantum Meruit. One vi^ho performs service for another w^ith-

out a definite agreement is entitled to reasonable compensation.

E. S. Moberly Bell, Esq., for plaintiff.
Messrs. Jernigan & Fessenden, for defendant.

Thayer, J.:

This is an action for damages alleged to have been suf-
fered by reason of breach of contract. The plaintiff has
had long experience in the silk trade in China. While
residing in Zurich, Switzerland, he was approached by a
representative of defendant with reference to entering its
employ in Shanghai as an assistant silk inspector. Under
date of April 15, 1910, defendant addressed the following
letter to plaintiff:

"R. W. Steiner, Esq.,

Zurich.
Dear Sir:

We offer you an engagement as Assistant Silk Inspector for a
period of three years on the following terms: Salary for First year,
Tls. 300 per month; Salary for Second year, Tls. 325 per month;
Salary for Third year, Tls. 350 per month.

Your salary will begin upon your arrival in Shanghai. We would
pay your passage from Zurich to Shanghai and also your return

250 I EXTRATERRITORIAL CASES.

passage at the expiry of your Agreement. Your former experience
in Shanghai makes it unnecessary to detail your duties.

We shall expect to hear from you by cable and enclose a codegraph
to enable you to wire us by A. B.C. code; in case you decide to
come please go to Lyons and make the acquaintance of our Agent,
Messrs. Pizard Freres.
Youi-s faithfully,

Frazar & Co."

On May 5, 1910, after receipt of this letter, plaintiff
cabled to defendant a message in code as follows :

"Accept the offer subject to what commission will be allowed —
as arranged with — If you cannot arrange try to increase the amount.
Answer by tel. A. B.C. 5th."

On May 7, 1910, defendant cabled answer as follows:
"Commission will be paid — as arranged with — on Pongee."

Dn May 10, 1910, plaintiff cabled to defendant company
as follows:

"Accept. Please send copy of agreement. Waiting further in-
structions before departure."

On the same date defendant wrote plaintiff enclosing
draft of agreement. This draft, instead of providing for a
straight term of thi^ee years, stipulated for a term of not
less than one year, with an option reserved to the defendant
company to renew the agreement for a further term of
two years.

On May 28, 1910, plaintiff, at Zurich, acknowledged re-
ceipt of draft of agreement and said :

"I must ask you to make the following alterations in the wording
of the agreement.

First — to read: 'for a term of three years from the date of enter-
ing the office of the said Frazar & Co.'

Scrnricl — to read: 'but the said Frazar & Co. reserve the right to
cancel this agreement at any time without notice, should the said
R. W. Steiner give just cause for so doing, and should the said R.
W. Steiner leave the employ on his own free will, he agrees not to
enter any other firm in Shanghai before expiration of his Agreement,
without first having the written consent of the said Frazar & Co., and
in no case to open up correspondence with the constituents of the said
Frazar & Co. with a view to do business with them."

STEINER V. FRAZAR & CO., DEC. 19, 1911. 251

Without waiting for the perfection of the written agree-
ment as per his conditions and without further correspond-
ence in reference thereto the plaintiff made his preparations,
proceeded to Shanghai and enteied upon his direct em-
ployment with the defendant company on August 1, 1910.

Within a day or two thereafter the matter of the formal
agreement was the subject of conversation between the
plaintiff and Mr. McMichael, defendant's senior partner,
who insisted upon the signing of the agreement as drafted,
which the plaintiff refused. It appears that the matter was
further referred to several times between the parties with
the same result. Meanwhile the plaintiff continued in the
employ of the defendant company and so remained for the
period of one year and three months, receiving a salary at
the rate of three hundred per month. After the expi-
ration of the first year's service the defendant company
continued to pay the plaintiff at the same rate, for the
period of three months thereafter, refusing to pay the rate
specified in the original offer except on condition that plain-
tiff sign the form of agreement tendered. At the end of
the three months of the second year plaintiff" consulted
counsel, who, under his instructions, made demand for
payment of an additional sum of Taels twenty-five per
month. The defendant company paid the additional amount
demanded and peremptorily dismissed the plaintiff from its
employment.

Plaintiff's contention is that the correspondence between
the parties resulted in a complete agreement upon which he
acted, closing up his business at Zurich, following de-
fendant's instructions respecting certain interests the com-
pany had then pending in Europe and then reporting in
Shanghai and entering upon his actual employment.

Defendant contends that the negotiations for a contract
between them never reached a finality since in his last
communication plaintiff asked for a written agreement:
that a draft of such written agreement was sent to him at
Zurich, that he insisted upon a modification of its terms
and, without completing the negotiations and reaching a
definite agreement, came to Shanghai and actually entered

252 I EXTRATERRITORIAL CASES.

the employ of the company, that after reaching China he
refused to sign the agreement, that the defendant refused
to modify its terms and that his services thereafter rendered
the firm could not be related to any definite contract since
none had ever been made between the parties.

To permit a clear differentiation of these two contentions
it is only necessary to examine the negotiations up to the
claimant's letter dated Zurich, May 28, 1910, at which time
such negotiations as were had between the parties prior
to plaintiff's arrival in Shanghai were concluded. De-
fendant's letter of April 15, 1910, was a clear, unambiguous
offer of employment on clearly stated terms. Obviously
if that offer had been unconditionally accepted, a contract
would have thus been effected.

Was plaintiff's reply an unconditional acceptance?

1. He cabled an acceptance subject to a commission, sug-
gesting an increase of salary if commission could not be
allowed.

2. Replying to defendant's answer that a commission
would be allowed on Pongees, he further cabled defendant
"Accept. Please send copy of agreement; waiting further
instructions before departure."

Plaintiff insists in argument that this was an uncon-
ditional acceptance and that, on his demand, he was entitled
to have the agreement made put into written form. There
can be no doubt that he had the right to insist that any
aigreement should not be binding upon him unless reduced
to writing as a formal agreement. Could his acceptance in
the terms of his own statement be reasonably construed as
otherwise than conditional upon his receiving a satisfactory
form of written agreement?

It must be borne in mind that fundamentally no contract
can be made without a meeting of the minds of the two
parties. Plaintiff demanded a written agreement and noti-
fied defendant that he would wait for further instructions
before departure. Can this be construed as anything else
than a statement from the plaintiff, in effect,

"I am satisfied with the terms as stated but I want an agreement
in writing and I will not proceed until I have a satisfactory agree-
ment in writing"?

STEINER V. FRAZAR & CO., DEC. 19, 1911. 2^3

Obviously it was the right of either party to demand a
written agreement. Up to that time the parties were
negotiating. There had been no final agreement between
them. Plaintiff made this demand and defendant complied
therewith and drafted an agreement and forwarded a copy
which plaintiff received, apparently before leaving Zurich.
It is axiomatic that either party may modify terms or
withdraw from negotiations while pending.

It is well recognized that a valid and binding contract
can be made by correspondence. These two parties were
engaged in negotiations at a very long range. Both the
telegraph lines and the mails were the medium of com-
munication. The offer was made by letter in which answer
was invited by telegraph. Telegrams were exchanged and
the latest communication was by mail from the plaintiff to
the defendant. Whether or not during this period of cor-
respondence any point was reached at which the minds of
the pa;rties met in an agreement, must be determined by
reference to their respective communications. The familiar
rule, where parties are engaged in negotiations by corres-
pondence with reference to a possible contract, is that:

"In order to convert a proposal into a contract the acceptance must
be absolute and unqualified." ^

In a particular case the question is wholly one of con-
struction of the proposals and counter-proposals with a view
to determine the intention of the parties and whether a
point has been reached where they have met in the same
common intention.

The same authority says that altho parties are in
fact agreed upon terms they may intend that the agreement
shall not be binding in law until it is put into a formal
writing and signed by the parties. He recites a rule as
follows :

"If to a proposal or offer an assent be given subject to a provision
as to a contract, then the stipulation as to the contract is a term of
the assent, and there is no agreement independent of that stipula-
tion." '

^ Wald's Pollock on Contracts (3d Am. ed.) 43, quoting Indian

Contract Act, sec. 7, subsec. 1. Ed.

' Id. 46, quoting Chinnock v. Marchioness of Ely, 4 D. J. S. 646.

254 I EXTRATERRITORIAL CASES.

Numerous cases are cited in support of this rule.

It must be noted also that it was the plaintiff himself
who made the demand for a formal agreement. He,
himself was responsible for the qualification of the ac-
ceptance. Obviously he put himself in a position to refuse
to sign a draft of contract unless satisfactory to him. In
fact this is exactly what followed. Such position is ob-
viously inconsistent with a contention that a binding
agreement had already been reached. Assume on the
same state of facts that plaintiff specifically refused to
come out unless agreement was drawn to his satisfaction,
would defendant have a valid right of action against him?
We think the question must be answered in the negative.
If one of the parties had the path open for withdrawal,
the contract could not be regarded as completed. The mu-
tuality necessary to give validity to the contract would be
wanting.

It only remains to consider whether upon the facts es-
tablished in this record plaintiff is entitled to any relief.
He was admitted to the employ of defendant for one year
and three months and has rendered service. There is no
evidence in the record that the service was not satisfactory
in every respect and such as contemplated by defendant
when employment was offered. The acceptance of such
service by defendant carries with it an obligation for fair
treatment and adequate compensation on quantum meruit.
Plaintiff was an employee of the company without any de-
finite understanding between them respecting compensation
or term of employment. Pursuing his rights as he saw
them plaintiff initiated legal proceedings. He could not rea-
sonably have contemplated that he could remain in the
employ of the company while threatening it with suit, unless
his confidence in the merits of his position was such as to
convince him that the company would immediately yield to
his full demand. It must be presumed that the plaintiff
deliberately assumed whatever risks attended such action.
He can rightfully claim nothing by reason of acts of the
company which were the logical and necessary results of his
own action. In the opinion of the Court the plaintiff is

STEINER V. FRAZAR & CO., DEC. 19, 1911. 255

equally responsible with this defendant for the development
of this controversy.

While such action on the part of the plaintiff might
afford sufficient ground to justify the defendant in ter-
minating all business relations with him, the defendant
company cannot escape the obligation to satisfy all just
demands reasonably flowing out of the relation to which
it had assented. To determine what that obligation is
the Court can find no better measure than that exhibited
in the original tender of service and in the draft of agree-
ment proposed by the defendant company. It cannot be de-
nied that these two papers disclose the conditions upon
which the company desired to secure the services of the
plaintiff and its own measurement, perhaps minimum, of
their value. The material conditions are:

1. That the salary for the second year was to be at the
rate of Taels 325 per month.

2. A right to dismiss the plaintiff without notice for
just cause.

3. Dismissal without cause on three months' notice.

4. A commission of 25 per cent on the net liquidated pro-
fits of all business inaugurated by plaintiff in pongee and
silk woven goods.

5. Passage to Shanghai and back from thence on ter-
mination of employment to be paid by the defendant com-
pany.

It is reasonable to exclude the second provision, since the
cause of dismissal in the present case does not relate in
any way to the quality or character of service rendered and
the fourth provision since no evidence was submitted tend-
ing to show that any commission was earned.

Regarding the other provisions as constituting a proper
measure of defendant's obligations to plaintiff, the Court
finds that plaintiff was justly entitled:

1. To three months' notice of the termination of his em-
ployment.

2. To cost of second-class passage from Shanghai to Zu-
rich, Switzerland.

Judgment will be entered for the plaintiff for salary of

256 I EXTRATERRITORIAL CASES.

three months at the rate of Taels three hundred and twenty-
five per month, a total of Taels nine hundred and seventy-
five and further for the cost of second-class passage from
Shanghai to Zurich, Switzerland, which may be ascertained
and reported to the Court and will then be entered and
form an integral part of this judgment. Costs will be
equally divided between the parties.

IN THE UNITED STATES CIRCUIT COURT OF APPEALS.
Cathay Trust, Ltd., Appellant, v. F. M. Brooks, Appellee.

[No. 1971; filed February 5, 1912.]

SYLLABUS.
(By the Editor.)

1. JUDGMENTS: Set OFF: Intervention. The assignee of moneys

due under contracts upon which judgment is afterward recov-
ered by the assignor, against whom another judgment is mean-
while rendered by the same court in favor of the first judgment
debtor, is entitled to intervene in a proceeding to set off the
two judgments.

2. Id.: Id.: Id.: Review: Final Order. An order denjdng such in-

tervention is a final one and is properly reviewed on appeal.

Jernigan & Fessenden, Chickering & Gregory, W. H.
Chickering, Geo. H. Whipple, and W. Dorn, for appellant.
Bert Schlesinger, for appellee.

Before Gilbert, Ross, and Morrow, Circuit Judges.

Ross, C. J.:

This is an appeal from an order ^ of the United States
Court for China denying the petition of the appellant to
intervene in a proceeding relating to the set-off of judg-
ments, which proceeding was initiated by motion made in
an action at law in the same court in which both judgments
were entered. Objection is made to the entertaining of the
appeal by this court on the ground that the order complained
of should have been brought up by writ of error.

See ante, p. 221.

CATHAY TRUST V. BROOKS, FEB. 5, 1912. 257

1. The objection is not well taken, for it is well settled
that the proceeding in question is of ah equitable nature.

"The satisfaction of a judginent," says Freeman," "may be wholly
or partly pi'oduced by compelling the judgment creditor to accept
in payment a judgment against him in favor of the judgment debtor,
or, in other words, by setting off one judgment against another.
This is usually brought about by a motion in behalf of the party who
desires to have his judgment credited upon or set off against a judg-
ment against him. The court in a proper case will grant the motion.
Its power to do this cannot be traced to any particular statute and
exists only in virtue of its general equitable authority over its officers
and suitors. This authority was formerly restricted to courts of
equity but is now very generally exercised by courts of law. The
judgments sought to be set off against each other may have been
rendered in the same or in different courts. In the first case there
can be no difficulty; but in the latter it has sometimes been held
that a court of law was inadequate to afford I'elief and that resort
to chancery was therefore unavoidable. This position is believed
to be untenable. The court of law in which the judgment is entered
can give relief by virtue of its equitable power and may direct that
the judgment of another court be credited upon or set off against
its judgment, except when the rights of the parties are too intricate
and complicated to be adjusted elsewhere than in equity."

2. The order appealed from is a final order, for, if correct,
it finally and absolutely disposes of the appellant's alleged
rights in the premises. The facts briefly stated are these :

The appellant is a British corporation carrying on
business at Shanghai, China. On the 29th of June, 1910,
one C. R. Bennett made an assignment in writing to the
appellant of all his right, title, and interest in and to all
sums of money due and payable to him by one F. M. Brooks
in respect of all contracts for the June settlement on the
Shanghai Stock Exchange. Without any notice to Brooks
of such assignment, so far as appears, an action was there-
after brought in the court below in the name of Bennett
against Brooks upon those contracts, in which action the
defendant Brooks filed, on the 8th day of November, 1910,
a confession of judgment "pursuant to an agreement be-
tween the said Bennett and Brooks whereby certain scrip
or shares were deposited in court by said Bennett to be

^ Judgments, II, sec. 467& See also Black on Judgments, vol.
2, sec. 1000.

14008 O. W. 17

258 I EXTRATERRITORIAL CASES.

delivered to the said Brooks upon full satisfaction of the
aforesaid judgment which said scrip or shares now con-
stitute a fund in court." A judgment by default having
been recovered against Bennett in the same court on the
3rd day of November, 1910, for Tls. 8,993.38 by Lao Lai
Ting and Chung Ting Yee, with costs of suit, this purported
assignment of that judgment appears in the record:

"Know all men by these presents : That whereas, the said Lao Lai
Ting and Chun Ting Yee did this third day of November, 1910, re-
cover judgment in the above-entitled court against C. R. Bennett for
the sum of Tls. 8,993.38 and cost of suit as by the record thereof
will more fully appear: Now we, the said Lao Lai Ting and Chuii
Ting Yee, in consideration of the sum of $1.00 and other valuable
considerations to us paid, hereby sell, assign, and transfer to F. M.
Brooks the judgment above mentioned for his use and benefit, hereby
authorizing him to collect and enforce payment thereof in our name
or otherwise, but at his own costs and charges, and we hereby cov-
enant that the sum of Tls. 8,993.38 is due thereon.

Lao Lai Ting,
"By His Representative, Chen Tsung Tung.

Chung Ting Yee,
"By His Representative, S. C. LiU.
"Witness to the signature of Chen Tsung Tung:

"K. T. Chang.
"Witness to the signature of S. C. Liu:

"M. S. Chen.
"Shanghai, November 4th, 1910."

Based upon the above purported assignment, Brooks,
on the 9th day of November, 1910, made a motion in the
court below to set off the judgment so recovered against
Bennett against the judgment recovered by Bennett against
him ; and it was for the purpose of contesting that motion
that the appellant by petition sought to intervene and be
heard, basing its petition upon its alleged ownership of all
sums due and owing by Brooks to Bennett growing out of
the contracts referred to, by virtue of the assignment made
to it by Bennett on the 29th of June, 1910.

3. Upon the showing made the appellant appeared to be
the equitable owner of the judgment recovered in Bennett's
name against Brooks; for if the allegation made in the
petition for intervention be true, to the effect that Bennett

UNITED STATES V. JORDAN, MAR. 2 6, 1912. 259

had on the 29th of June, 1910, transferred to the appellant
all of his title and interest in the choses in action out of
which that judgment arose, and that the appellant continued
to be the absolute owner thereof, then manifestly the latter
was vitally interested in the question as to whether the judg-
ment recovered against Bennett and subsequently purport-
ing to have been assigned to Brooks should be set off against
it. Such a course would obviously be in the interest of
Bennett, but altogether against that of the appellant, if
all of the interest of Bennett in the choses in action upon
which the judgment in his favor was based had in fact been
previously assigned to the appellant.

The appellant, having thus a vital interest in the subject-
matter affected by the motion to set off one of the judgments
against the other, was clearly entitled to be heard in respect
to the question involved in it.

The judgment ^ is reversed, and the cause remanded to
the court below, with directions to allow the intervention
petitioned for.

IN THE UNITED STATES COURT FOR CHINA.
United States v. J. F. Jordan.

[Criminal Cause No. 58; filed March 26, 1912.]

SYLLABUS.

(By the Editor.)

TREATIES: Legal efficiency of, is not affected by internal changes
in governments.

F. E. Hinckley, Esq., U. S. Dist. Atty., for the prosecution.
J. W. Rice, Esq., for defendant.

Thayer, J.:

At the last session of the Court a motion to quash was
submitted by the defendant and briefs thereon have been
filed by counsel. It now appears that defendant has fled

* For the judgment below, see ante, p. 225.

260 I EXTRATERRITORIAL CASES.

the jurisdiction. He had given cash bail and an order of
forfeiture of bail will be entered. As further proceedings
cannot be had in his absence the Court is relieved of the
duty of disposing of the motion to quash.

However, there is one question which was raised by
counsel in support of said motion to which it is deemed
proper briefly to allude. Counsel in argument raised the
question as to the present legal efficiency of the treaties
between the United States and China. He suggested that
said treaties were made with His Majesty the Emperor
of China, that the Emperor of China had abdicated, that
the United States had not recognized any government in
succession nor entered into relations therewith and argued
therefrom that the treaty had no present binding force.

In answer to this contention it would be quite sufficient
to say that it raises questions of fact of which this Court
can take no judicial notice. The making and termination
of treaties and the recognition of new governments belong
to the political department of the government. ^

It is a well established doctrine that until the recognition
of a new government by the political department, courts
of justice are bound to consider the former state of things
as remaining unaltered. -

The question of what effect is produced on existing
treaties by internal changes in form of government is given
full consideration in the various text books on international
law. Sir Sherston Baker - states the governing principle
very clearly:

"Questions of great importance sometimes arise with respect to
the international effects produced by internal changes in the form
of government and by a change in the sovereignty of a State with
respect to its duties and obligations toward others. These questions
relate to treaties, public debts, the public domain, private rights of

'The Nueva Anna, 6 Wheat. 193, 5 L. ed. 239; U. S. v. Palmer,

3 Wheat. 610, 4 L. ed. 471; Kennett v. Chambers, 14 Howard 38, 14
L. ed. 316; Prize Cases, 2 Black G96, 17 L. ed. 459, and numerous
other cases cited therein.

-Gelston v. Hoyt, 3 Wheaton 24G, 4 L. ed. 381; Rose v. Mimely,

4 Cranch 241, 2 L. ed. 241.

^ First Steps in International Law, sec. 25.

UNITED STATES V. THOMPSON, MAR. 28, 1912. 261

property, and to responsibility for wrongs done to the governments or
subjects of other States. As a general rule, a mere change in the
form of government, or in the person of the ruler, does not affect
the duties and obligations of a State towards foreign nations. All
treaties of amity, commerce, and real alliance remain in force pre-
cisely as if no intervening change had taken place, except in cases
where the compact relates to the form of government itself, or to
the person of the ruler in the nature of a guaranty. Public debts,
whether due to or from the revolutionized State, are neither cancelled
nor affected by any change in the constitution or internal government
of a State. So, also, of its public domain and right of property. If
a revolution be successful, and a new constitution be established, the
public domain and public property passed to the new government.
The State, on the other hand, remains responsible for the wrongs
done to the government or subjects of another State, notwithstanding
any intermediate change in the form of its government or in the
persons of its rulers. These results flow necessarily from the prin-
ciple that the identity of a State is preserved, notwithstanding the
accidental changes in its internal constitution."

IN THE UNITED STATES COURT FOR CHINA.
United States v. W. H. Thompson.

[Criminal cause No. 62; filed March 28, 1912.]

SYLLABUS.
(By the Editor.)

1. EXTRATERRITORIALITY. The White Slave Traffic Act is oper-

ative in this jurisdiction.

2. Id. : Id.: Venue. An offense under said act is triable here tho

initiated in another jurisdiction.

F. E. Hinckley, Esq., U. S. Dist. Atty. for prosecution.
J. W. Rice, Esq., for detendant.

Thayer, J.:

The first ground upon which the motion to quash the
information is based is

"because no venue is in said information alleged sufficient to give
this Court jurisdiction and because it affirmatively appears therein
that the crime charged, if any be charged, was committed in the
State of California and not in the Consular District of Shanghai, and
this Court has consequently no jurisdiction thereof."

262 I EXTRATERRITORIAL CASES.

Respecting the matter of venue, an examination of this
information discloses that there is the usual recital that
this information is brought in the United States Court for
China in session at Shanghai which appea s to be a suf-
ficient compliance with the general rule relating to pleading
venue.

Respecting the second objection, the crime charged is
that of being engaged in the white slave traffic. The al-
legation is that the defendant aided and assisted in obtain-
ing transportation from San Francisco, California, to
Shanghai, China, of a person named, in violation of what
is known as the White Slave Traffic Act. Altho not affirm-
atively pleaded the evidence may disclose that the crime
alleged was initiated in some locality outside the jurisdic-
tion of this Court; but if consummated here a defendant
M^ould be subject to trial within this jurisdiction.^

The Court is, of course, unable to anticipate the character
of evidence but is of the opinion that the crime is suf-
ficiently charged in the information and that it is not open
to said objection.

The second ground stated is

"because the facts alleged do not constitute in China an offence
against the laws of United States."

The contention of counsel appears to be that the statute
known as the White Slave Traffic Act ^ is not operative in
this extraterritorial jurisdiction. But, "the laws of the
United States a.e extended over all citizens of the United
States" in China,' and the statute known as the White
Slave Traffic Act is such a law. It is clear and definite
in its terms and was enacted by Congress for the purpose
of regulating inter-state and foreign commerce by prohib-
iting the transportation for immoral purposes of women
and girls and for other purposes. In the first section a
definition is given to the term "foreign commerce" so that

' Act of Congress of March 3, 1899, Sess. Ill, 30 U. S. Stats, at
Large, Ch. 429, tit. II, sec. 7, p. 1285.

'Act of Congress of June 25, 1910, Sess. II, 36 U. S. Stats, at
Large, Ch. 395, p. 825.

"U. S. Rev. Stats., sec. 4086.

SUN MING-SHAN V. VILOUDAKI, APRIL 29, 1912. 263

it includes transportation from any state or territory or the
district of Columbia to any foreign country.

It is obvious that transportation between San Francisco,
California, and Shanghai, China, would be included within
the term "foreign commerce" and the Court is satisfied that
any violation of this statute, consummated in China by an
American citizen, would be within this extraterritorial jur-
isdiction. There can be no doubt as to the intent of
Congress respecting the complete prohibition of the several
acts recited as between the United States and foreign
countries.

The Court sees no merit in the objections and the motion
to quash is therefore

DENIED.

IN THE UNITED STATES COURT FOR CHINA.
Sun Ming-shan v. N. A. Viloudaki.

[Civil action No. 103; filed April 29, 1912.]

SYLLABUS.
(By the Editor.)

1. GUARAKTY: NOTICE OF ACCEPTANCE is not necessary where the

guarantor is personally interested in the subject matter.

2. Id. : Notice of Default is necessary unless expressly waived or

the guaranty covers a debt already due.

3. Id. : Id. : Time. Such notice must be within a reasonable time

which, however, varies with the circumstances of each case.

4. Id. : Id. : But lack of notice will release the guarantor only so

far as he has been prejudiced.

5. EVIDENCE: WEIGHT. Rules for weighing testimony stated.

6. Id. : Id.: Affirmative testimony prevails over negative.

Messrs. Fleming & Rice, for plaintiff.
Messrs. Jetnigan & Fessenden, for defendant.

Thayer, J.:

This is an action on the following guaranty:

"Shanghai, 12th February, 1909.
"In consequence of Mr. Sun Ming-shan shall advance to Mr. T. J.
F. Moran, as promoter of the proposed China Mercantile Life As-

264 I EXTRATERRITORIAL CASES.

surance Society, Limited, the sum of Tls. 2,000 (Taels two thousand)
for the office expenses of the said proposed company, I, the under-
signed, hereby guarantee to refund to the said Mr. Sun Ming-shan
all money thus advanced by him to the said Mr. T. J. F. Moran
within six months from the date of signing of this bond not exceeding
Tls. 2,000 (Taels two thousand). No matter whether the said pro-
posed company shall be wound up, in insolvency, in bankruptcy or
shall not be incorporated or exceeding the period above mentioned, I
shall make good and refund the said sum of Taels two thousand ad-
vanced by the said Mr. Sun Ming-shan.

"N. A, ViLOUDAKI.

"Witness to the signature of T. J. F. Moran:
"Zi Liang."

It appears from the evidence that the defendant was
interested in the promotion of said company; that he was
a subscriber for its stock and was advertised as a member
of its board of directors. The company was in its pro-
moting stage and funds were needed to meet promotion
expenses. Instead of such funds being supplied by the
parties immediately interested in establishing the company
the expedient was adopted of securing a Chinese compradore
who could be induced to advance such funds. Mr. Moran
sought out the plaintiff and tendered him employment im-
posing as a condition that he should advance the sum of five
thousand taels. The prospects of the company were painted
in glowing colors but plaintiff declined to advance more
than Taels two thousand and insisted that he should have
a satisfactory guarantor for that amount. Defendant was
offered as such guarantor and accepted and the instrument
was signed by him and delivered to plaintiff who entered
upon his employment. He made from time to time con-
siderable advances to cover office expenses of said company,
aggregating in amount a sum largely in excess of Taels
two thousand, all within the period of six months as fixed
in said guaranty.

Some time in the month of August, 1909, the said com-
pany discontinued and ceased to attempt to do business and
the said Moran failed and refused to repay the plaintiff the
amounts advanced to him by the plaintiff. Moran having
removed to Hongkong the plaintiff sued him on this ac-
count in Hongkong and on October 8, 1910, recovered a

SUN MING-SHAN V. VILOUDAKI, APRIL 29, 1912. 265

judgment against him for Five thousand one hundred and
seventy-four and '^S/j,,,. dollars less Taels 1,200, plus seven
hundred and seventy-six and ^%(H) dollars costs. On this
judgment plaintiff has realized only fifteen hundred dollars.

Plaintiff testifies that shortly after the failure of Moran
to repay him he notified the defendant of such failure and
was told by the defendant that he must first exhaust all
legal remedies against Moran. The defendant denies this
statement explicitly and testifies that the first and only
notice received by him from the plaintiff was by letter
of plaintiff's counsel dated September 19, 1911. This suit
was filed March 14, 1912.

All of the facts above stated, excepting only the matter
of notice of acceptance of guaranty and of Moran's failure
to pay to plaintiff the sums advanced, are undisputed. It
is clearly shown in the evidence that defendant was fre-
quently in the office of the company and saw the plaintiff
there acting as compradore. He must have known that
the plaintiff had entered upon his employment relying on
the guaranty. Defendant cannot be regarded as a party
without interest. His interest in the company as a share-
holder and as a proposed director is the only consideration
disclosed for assuming the obligations of a guarantor. He
has been in Shanghai many years and cannot be assumed
to be unfamiliar with the functions performed by a com-
pradore in such cases.

Having signed and delivered the guaranty and having
seen plaintiff actually engaged in such employment, it
would be unreasonable to assume ignorance on his part
that the guaranty had been accepted by plaintiff. The
circumstances of this case are such that he is charged with
full notice of such acceptance. There is also abundant au-
thority that where a guaranty is given by one who has a
personal interest in the subject matter, liability attaches
altho no specific notice of acceptance was given. ^

Counsel for plaintiff contends that the phrasing of the
present guaranty is such as to make it absolute and as

^Brandt, Suretyship & Guaranty (2nd ed.), sec. 193 et seq.; Doud
V. National Park Bank, 54 Fed. 846.

266 I EXTRATERRITORIAL CASES.

such no notice to guarantor of advances and of default was
necessary. The instrument is very broad in terms. While
it is a guaranty for future advances it states the obligation
of the guarantor very explicitly especially in its concluding
clause.

It is difficult to see how this guaranty could have been
made more absolute and unconditional unless there had
been included a provision expressly waiving all notice.
The best authorities hold that notice is necessary in all cases
of commercial guaranty unless expressly waived or unless
it covers a debt already due. Plaintiff's citations are over-
whelmingly met by contrary authorities. -

Was notice of default given to the defendant by the plain-
tiff at or near the time of default?

It has already been recited that the plaintiff testified
that he did give such notice to the defendant and was told
by him in effect that he must first exhaust all remedies
against Moran. This the defendant denies. With such
conflict of testimony the fact of actual notice to the de-
fendant could not be regarded as established unless reasons
should appear to the court for giving greater credence to
the testimony of the plaintiff. In weighing the conflicting
testimony of witnesses it is a familiar rule of evidence that
the jury may take into consideration

"the memory, the motives, the intelligence and appearance of the
witness on the stand, his means of information, his evident bias or
his candor and fairness as well as the consistency of his testimony
and his interest or want of interest in the result."''

It satisfactorily appears that the plaintiff was active and
persistent in his efforts to collect the advances made to
Moran and that he pursued Moran even into another juris-
diction and secured judgment against him. This is con-
sistent with his testimony that the defendant insisted upon
his first pursuing Moran, at the time when he notified de-

" Cremer v. Higginson, 6 Fed. Cas. 797; Russell v. Clark, 7
Cranch (U. S.) 69, 3 L. ed. 271; Douglass v. Reynolds, 7 Pet. (U. S.)
113, 8 L. ed. 626; Louisville Mfg. Co. v. Welch, 10 How. (U. S.)
461, 13 L ed. 497.

^ Jones, Evidence (Horwitz ed.), V, sec. 902.

SUN MING-SHAN V. VILOUDAKI, APRIL 29, 1912. 267

fendant of Moran's default. It should be observed that the
plaintiff testified to an affirmative, viz., that he gave, the
notice of default to the defendant, while the defendant
testifies to a negative. It is a general rule of evidence
that affirmative testimony is stronger than negative.

This is not a rule of slight importance nor infrequently
.invoked. It is applied where there are two witnesses of
apparently equal credibility and has been frequently ap-
proved by the Supreme Court.*

A witness who testifies to an affirmative is preferred
because he who testifies to a negative may have forgotten.
It is possible to forget a thing that did happen. It is not
possible to remember a thing that never existed. In the
case cited Justice Miller declares it "a recognized rule of
evidence of frequent application" and approves of the rea-
sons stated in its support. It is cited in numerous other
later Supreme Court cases. On all the evidence illuminated
by the rules cited, the court believes that on this point the
testimony of the plaintiff is entitled to be given greater
weight than that of the defendant.

But if we assume that no actual notice of default was
served on the defendant until after the expiration of two
years, does this fact under the circumstances of this case
release the defendant from the obligation of this guaranty ?

A case '' is cited in which Justice Story applied the rule
to the facts there that notice within a reasonable time of
advances made under a guaranty is necessary to fix liability
of a guarantor. There, however, the evidence of plaintiff's
laches was conclusive. The court recited that the first
notice was not given until more than three years after the
last advances were made nor until after both of the debtors
had become insolvent; that during this period there was
active correspondence between plaintiff and defendant in
which there was no reference to any advances having been
made ; that it is apparent that the silence was not imputable
to any accident ; on the contrary that it appears from one
of the letters of the plaintiff to have been studied and

Stitt V. Huidekopers, 17 Wall. 385, 21 L. ed. 644.
Cremer v. Hig^nson, 6 Fed. Cas. 797.

268 I EXTRATERRITORIAL CASES.

intentional. The care exercised by the learned judge in
reciting these facts is significant. Before releasing the
obligor on the guaranty by reason of laches, the clearest
proofs thereof were required. In other words when a
guaranty is given the obligor is presumed to have assumed
the obligation deliberately and in good faith and is not
to be released therefrom for any light reason.

"It has always been held in this court that, notwithstanding the
contract of guaranty is the obligation of a surety, it is to be con-
strued as a mercantile instrument in furtherance of its spirit and
liberally, to promote the use and convenience of commercial inter-
course." "

The principles upon which this holding rests have been
declared and clearly differentiated in several successive
Supreme Court decisions, reference to which has already
been made. The rules thus enunciated have been made so
clear that it is needless to analyze the case. These rules are :

First. — Notice of default must be communicated to the
guarantor within a reasonable time.

Second. — What is a reasonable time must depend upon
the circumstances of the particular case and is generally a
question of fact for the jury to determine.

Third. — A guarantor is not released unless lack of notice
inflicts loss upon him and only so far as he has been pre-
judiced."

If we accept the testimony of the defendant, notice of
default was not actually served on him until a little more
than two years after the default occurred. Under the cir-
cumstances of this case was this a reasonable time? In
answering this question all the circumstances of the case
as disclosed by the evidence in the record must be con-
sidered. The defendant cannot plead ignorance of his
obligation, of his active interest in the promotion of the
company and of its failure. He admits knowledge that
plaintiff had obtained judgment against Moran in Hongkong.
While he testifies that he received no formal notice of the

' Davis V. Wells, 104 U. S. 159, 26 L. ed. 686.
' Lawrence v. McAlmont, 2 How. (U. S.) 426, 13 L. ed. 497, and
see cases cited in preceding notes.

SUN MING-SHAN V. VILOUDAKI, APRIL 29, 1912. 269

acceptance of the guaranty and only a delayed notice of the
default of Moran, he does not testify that he believed no
advances had been made in reliance on his guaranty. The
couit is convinced that he must have known not only that
the plaintiff had accepted his guaranty but had also made
large advances to Moran for the office expenses of the com-
pany. In view of his active interest in the exploitation
of the company, and of his investment in its shares it is
no violent presumption that he kept himself well acquainted
with its development.

It would be unreasonable also to assume that under these
circumstances he would be indifferent respecting his obli-
gations on the guaranty for Taels two thousand. He was
active in obtaining a refund of the amount paid by him
for shares in the company. For obvious reasons he was
not so keen to meet the obligations he had assumed in con-
nection with the promotion of the company. During this
period plaintiff was urgently and persistently pursuing Mo-
ran to secure a refund of the amount advanced and this
action instead of being a prejudice to defendant was in his
interest.

Defendant claims that he suffered prejudice by lack of
notice and states that having no such notice he made a
settlement with Moran in December, 1910. His own tes-
timony shows that it was not a settlement on joint account
but a compromise settlement in which defendant accepted
for money loaned a less sum than the principal amount of
the debt. At the same time other creditors of Moran were
pursuing him in the courts and securing judgments. The
defendant states as a matter of opinion that he thinks he
might have recovered from Moran. The fact that several
others made the attempt during the same period and failed,
discredits his opinion. He has practically made no showing
of actual loss or prejudice resulting from this alleged lack
'Of notice.

Judgment will be for plaintiff for Sycee Tls. 2,000 with
costs of this suit. No interest will be allowed for two
reasons; (1) because the guaranty was limited to a fixed
amount and, (2) because no evidence is submitted of par-

270 I EXTRATERRITORIAL CASES.

ticulars of demand as of a definite date, such as to enable
the oourt to determine the actual time when defendant's
liability attached.

IN THE UNITED STATES COURT FOR CHINA.
Woosung-Hankow Pilot Association v. George Rutland.

[Civil action No. 104; filed May 9, 1912.]

SYLLABUS.
(By the Editor.)

1. CONTRACTS: ARTICLES OF ASSOCIATION. Where a member of an

association signs its articles, undertaking certain obligations, he
will ordinarily be treated as having entered into a contract
with it.

2. Id.: Id.: Restraint of Trade. But where such articles forbid the

members to accept outside employment and the evident purpose
is to stifle competition they will not be enforced.

Messrs. H. P. Wilkinson, S. H. McKean and J. W. Rice,
for plaintiff.

Messrs. Jernigan & Fessenden, for defendant.

Thayer, J.:

This is an action by the Woosung-Hankow Pilot Associa-
tion against George Rutland, at one time a member of said
association, seeking an injunction restraining him from pur-
suing his vocation as a pilot except in conformity with the
articles of said association. The members of the associa-
tion are pilots for vessels on the Yangtze Kiang between
Woosung and Hankow.

The navigating channel of said river is more or less
dangerous. Not only are there varying depths of water at
different seasons of the year, from low water to flood con-
ditions, but the channel is subject to frequent changes which
make navigation difficult. The service of pilotage can only
be rendered by competent men who have made themselves
familiar with the river and its varying conditions and is
required by numerous steamers engaged in commercial traf-
fic thereon for a distance of several hundred miles. There

W.-H. PILOT ASSOC. V. BUTLAND, MAY 9, 1912. 271

is no law regulating this service or prescribing the condi-
tions under which individuals may engage therein. Any one
who can secure employment may undertake to act as a pilot
but for obvious reasons no one is likely to obtain such work
• who has not had more or less training and experience in
navigation and who is not also well acquainted with the diffi-
culties of navigating this particular river.

Aside from Japanese and Chinese pilots, there are in
Shanghai from thirty to forty engaged in such service. In
the exercise of their calling conditions of demand and supply
create competition in rates. But the matter of rates is only
a single element in the difficulties with which these compet-
ing pilots meet. They are of varying experience, skill and
reliability and the serious risks in the navigation of the
river and the possible commercial damages from unskilled
or reckless service, add elements of great importance when
consideration is given to their calling as a profession or
business. The exercise of these functions carries with it
necessariFy serious responsibilities. Unskilled or careless
work may result in delay or wreckage which will sound in
financial damages. These and other considerations operated
to induce the members of this profession to seek some form
of co-operation. The plaintiff association grew out of these
conditions and is in succession to several previous associa-
tions of a more or less similar character.

While in the course of formation, and before incorpora-
tion, a memorandum of association was made and signed
by each of the parties interested therein setting forth in
great detail the objects for which the company was to be
established. No less than twenty-one separate paragraphs
were used in reciting the objects and powers of the com-
pany. The powers thus recited are remarkably broad.
They include not only provisions obviously essential to
an organization of this character but many extraordinary
powers which common experience has demonstrated cannot
be safely entrusted to any corporation except under severe
restrictions none of which are imposed in this instance.

It would appear that the entrusting of such broad powers,
without restrictions of any kind, to such a body of men, is

272 I EXTRATERRITORIAL CASES.

a travesty on corporate creation. This is no reflection on
the abihty or character of these gentlemen. They are un-
doubtedly men of more than average ability. They are
mostly recruited from the list of master-mariners and it is
traditional that life at sea develops robustness of character
and honesty of purpose ; but it does not ordinarily give busi-
ness training and boards of directors of important financial
and business institutions are not often exclusively composed
of recruits from second, third and fourth class officers of
the minor merchant marine. The Court regards it as cer-
tain that any one who allies himself with an organization of
pilots, whose main purpose is undoubtedly centred on pro-
moting the simple work of their profession, with powers such
as are conferred in this case, jeopardises both his future and
his fortune. It is very easy to see how the exercise of such
powers by unskilled tho honest men would be most likely
to lead to disaster.

Articles of Association were also formulated and were
signed by each of the parties. Subsequently, on October 16,

1911, said Memorandum and Articles of Association were
registered under the Hongkong Ordinances as a company
"limited by guarantee." The limit of liability of any mem-
ber in case of liquidation of the company is taels one hundred.
There were twenty-seven subscribers. It is thus evident
that the company was not over-capitalized. When consider-
ation is given to the extensive powers conferred upon the
company it is apparent that extraordinary care was exercised
to limit the liability of individual members to a ridiculously
small sum.

The defendant was one of the chief promoters of the com-
pany and, after its full organization, one of its governing
committee. Some time in January, 1912, the defendant be-
came dissatisfied and submitted his resignation. Shortly
thereafter he withdrew his resignation but early in March,

1912, he renewed it and immediately engaged in pilotage on
the Yangtze River independently of said association. The
plaintiff association then entered this suit.

The complaint is in substance that the defendant has
ignored the obligations he had undertaken as a member of

W.-H. PILOT ASSOC. V. RUTLAND, MAY 9, 1912. 273

said association, has severed or attempted to sever his mem-
bership therein and especially that he has, since March 7,
1912, carried on the trade of a pilot on the Yangtze River
between Woosung and Hankow, in breach of Article 9 which
reads :

"Members of the Association shall accept any employment recom-
mended to them by the Association — as Yang-tze pilots — whether as
principal or assistant, and shall not accept any employment as a
Yangtze pilot not ?i recommended without the permission of the
Associat on."

The plaintiff avers that by reason of this breach of con-
tract it has suffered damage and loss and prays that an in-
junction may issue restraining the defendant for two years
from March 7, 1912, from carrying on the trade of a pilot on
the River Yangtze from Woosung to Hankow or the in-
termediate ports. This prayer is based on Article 10 of the
Association which reads:

"Members of the Association who shall resign their membership
pursuant to Article 23, or who may be expelled pursuant to Article
19, shall not for two years after such resignation carry on the trade
or calling of pilots on the River Yangtze from Woosung to Hankow
or intermediate ports."'

Some testimony was given by the defendant tending to
show that possibly there was some irregularity in the prepa-
ration and signing of the papers before their submission to
the Honkgong authorities but the evidence was not con-
vincing. The defendant signed all the papers and initialled
the interlineations which appear on the original printed copy
of the Articles registered in Hongkong. Not only that but
he accepted a position on the governing board of the com-
pany, participated in the administration of its business and
accepted and discharged assignments to duty from the
association. Under these circumstances he is effectually
estopped from denying that the association was regularly
organized. Every step was taken apparently with his full
knowledge. It must be presumed that he had full knowledge
of the legal effect of his acts.

Moreover it appears that he was one of the chief promoters

14008 O. W. ^18

274 I EXTRATERRITORIAL CASES.

of the company and it does not appear that at any stage he
objected to any of the Articles. On the contrary it is pretty
well established that he was mainly responsible for these
provisions in the Articles which he is the first to deliberately
ignore. Under these circumstances the defendant does not
occupy a position in this case which would appeal strongly
to any court. He is claiming a release from obligations
which he has deliberately assumed and which he has per-
suaded others to assume. It is a fundamental rule that a
person of mature age who has deliberately entered into con-
tract obligations will not be allowed to repudiate them for
slight reasons.

The evidence in the record relative to the formation of the
company furnishes no sufficient ground upon which to base
the release of the defendant from these obligations. The
defendant cannot escape unless, for reasons disclosed in the
evidence and in its Articles, it should be found that the asso-
ciation was organized and is maintained for an illegal
purpose.

These grounds of defense may be briefly stated:
That the Articles of Association inevitably tend and were
adopted for the purpose :

1. To t^tifle free competition.

2. To establish and maintain arbitrary rates.

3. To increase rates then prevailing.

4. To establish a monopoly of the pilotage business on the Yangtze
River.

5. That these several provisions operate in restraint of trade.

Counsel on either side have cited numerous authorities in
support of their several contentions respecting the law appli-
cable to this association. As applied to the varying facts of
the cases cited a great conflict of authority is apparent. But
we believe that the conflict is more apparent than real and
is due to a confusion of the mixed elements in many cases
in which it is difficult to determine the chief and controlling
purpose of the combination complained of. This associa-
tion is composed of pilots. It goes without saying that they
may associate themselves together for any legitimate
purpose. While the article which they deal in is service

W.-H. PILOT ASSOC. V. RUTLAND, MAY 9, 1912. 275

it is highly skilled and special service and is a service in
which an obvious public interest is involved.

Counsel have contended that an analogy exists between
the present combination and that of a labor organization and
doubtless there are points of similarity. But the points of
divergence are greater and whatever the relation may be
each separate combination must stand on its own foundation
and pass the test of compliance with the law. The vital
question, as it appears to the court, is what was the chief
purpose for which this organization was created? We be-
lieve that one cannot examine fairly the evidence in this
record without being driven to the conclusion that the chief
and all-absorbing purpose was to stifle competition and to
make it possible to maintain or increase rates existing at the
time when the association was formed. Extraordinary
efforts were made to induce or compel every reputable
Yangtze pilot in Shanghai, excepting Japanese and Chinese
and the navy pilots, to join the organization and to submit
himself to the rigorous rules forbidding competition. Ex-
traordinarily severe penalties were fixed for violation of
the rules, particularly when any member desired to sever
his connection with the association.

1. He was forbidden to pursue his calling- of pilot on the Yangtze
for two years. (Article 10).

2. Damages assessed at Tls. 200 per week. (Article 21).

3. Fines imposed for violation of Article 9. (Article 18).

4. Retention for 2 years of money due to a resigning member not
excpedin,L'- Tls. 3,000. (Article 24).

It is difficult to find any reasonable explanation of such
severe restrictions except that they were intended to stop
competition. In the ordinary corporation any member or
shareholder withdraws without other penalty than the
possible sacrifice of his share-interest. Here one who re-
signs must pay an enormous penalty equivalent to his earn-
ing capacity for two years. These provisions themselves
furnish overwhelming evidence of the real purpose of the
association. Indeed Mr. Earle, one of the witnesses for
the plaintiff", frankly admitted on cross-examination that
the chief object of the organization was to stop competition.

276 I EXTRATERRITORIAL CASES.

Other witnesses testified to the same effect. And not one
of the witnesses testified to the contrary. The Court must
hold this as one of the material facts established by the
evidence. The main purpose was to establish a monopoly
of the pilotage business on the Yangtze River. The results
achieved strongly confirm this view. The association
started with twenty-seven members. The testimony con-
flicts as to how many more active Yangtze pilots there
were outside the combination. But it is reasonably well
established that there were not more than five or six, aside
from the Japanese, Chinese and naval pilots, and the asso-
ciation established friendly and reciprocal relations with
the Japanese pilots. It was testified that the association
controlled about ninety per cent of the whole business.
There is also in the record uncontradicted testimony that
the Board of Directors authorized the cutting of rates when
necessary to stifle competition. It is shown by a prepon-
derance of testimony that rates were actually increased.
The fact that the main object of the company was to
establish a monopoly as stated is supported by an over-
whelming preponderance of evidence.

The remedy prayed for in this case is a restraining order
requiring the defendant to abstain from exercising his pro-
fession as a pilot on the Yangtze River for the period of
two years. This is Specifically provided for in the Articles
of Association to which the defendant assented. Treating
this defendant as in contractual relations with the plaintiff
company whose chief purpose is to establish a monopoly,
can the penalty for his disobedience be enforced by this
Court? It is a well recognized principle in the common law
that contracts tending to stifle competition and create a
monopoly are invalid and will not be enforced as being
against public policy. That principle, substantially as
stated, remains in full force in American jurisdictions
except where modified by statutory provisions. Analysis
of the numerous authorities cited by counsel for the plaintiff
does not convince the Court that the rule stated has been
materially modified. The most of them relate to contracts
alleged to be in restraint of trade. The doctrine that some
contracts in restraint of trade mav be valid if the restraint

W.-H. PILOT ASSOC. V. BUTLAND, MAY 9, 1912. 277

can be regarded as reasonable, is not new doctrine. As
is well known, that doctrine has been recently reannounced
and defined by the Supreme Court in the trust cases. ^

"Contracts whereby one or both of the parties thereto are restrained
from engaging in a business, trade, or profession are of two kinds:
(a) those which are a part of a transaction involving the good-will
of the business, which are designed to protect such good-will, and to
that end to restrain some person or persons from engaging in busi-
ness, and (6) those which have for their primary object not the
protection of good-will, but the formation of a monopoly in a given
business. The first class, if objectionable at all, is so because the
restraint is unreasonable; the second is always illegal.^

"Monopoly contracts are invalid altho they may not succeed in
establishing an absolutely perfect monopoly. It is their tendency
rather than their ultimate effect that the law reproves." ^

The Court is also of the opinion that the restraint pro-
posed to be put upon a member who resigns from the
Association by Article 9 is unreasonable in view of the
character of the association and of the trade or profession
in which its members are engaged and the provisions of
this Article are not enforcible against this defendant.^

Nor are the duration of the contract nor the area over
which it is meant to extend determining factors as regards
its validity but are elements in the general consideration
by the Court of the reasonableness of the transaction in
the particular case.^

The finding must be for the defendant. The bill is dis-
missed with costs.

On June 19, 1913, the same Judge rendered a similar judgment
in an action by the same plaintiff against J. Seymour wherein it was
observed :

The defendant is simply another American member of the same
association which is now seeking the same remedy. The plaintiff
cannot succeed in this case unless the Court reverses its judgment^
announced after full hearing, in the Butland case.

'Standard Oil Co. v. U. S., 221 U. S. 1, 55 L. ed. 619; U. S. v.
American Tobacco Co., 221 U. S. 106, 55 L. ed. 663, citing U. S.
V. Freight Assn., 166 U. S. 290, 41 L. ed. 1001. Ed.

' Page, Contracts, I, sec. 373.

='Id., sec. 433.

^ Anson, Law of Contracts, 229.

' Id. 230. Cf . John Layton Co. v. Blomberg, post, p. 818. Ed.

278 I EXTRATERRITORIAL CASES.

It is settled law that a judgment of a court of competent jurisdic-
tion upon a question directly involved in one suit is conclusive as to
that question in another suit between the same parties."

While the defendant is not the same in this case, he belongs to
exactly the same class and it is not claimed that he occupies any
other or different position, either in fact or law, than that occupied
by Butland. It is difficult to see why the principle stated is not ap-
plicable to this case since the vital question presented for adjudication
is exactly the same as it would have been if the complaint had been
again filed against the former defendant, Butland. It is true that
the doctrine of res adjudicata requires identity of subject matter and
identity of pai'ties but the rule of stare decisis involves no such re-
quirement. The force of this suggestion may be appi-eciated when
attention is called to the fact that the decision in the Butland case
was announced in May, 1912, and that following on said decision the
present defendant terminated his membership in the plaintiff associa-
tion and shortly thereafter resumed work as an independent pilot.
It does not require proof that he did so relying on the adjudication
of this Court in the Butland case. No appeal was taken from that
decision and it stands as the law of the case for this jurisdiction.
Has it not become such a rule of property as the Court is now bound
to maintain under the circumstances of these cases? At least one
other party has taken the same course as suit against him is now
pending in this Court.

It is a familiar rule that when judicial decisions may fairly be
presumed to have entered into the business transactions of a country
and have been acted upon as a rule of contracts and property it is
the duty of the court, on the principle of stare decisis, to adhere to
such decisions without regard to how it might be inclined to decide
if the question were new.

"A deliberate or solemn decision of a court or judge made after
full argument on a question of law fairly arising in a case and
necessary to its determination, is an authority or binding precedent
in the same court, or in other courts of equal or lower rank within
the same jurisdiction, in subsequent cases where the very point is
again presented; but the degree of authority belonging to such prece-
dent depends, of necessity, on its agreement with the spirit of the
times or the judgment of subsequent tribunals upon its correctness
as a statement of the existing or actual law and the compulsion or
exigency of the doctrine is, in the last analysis, moral and intellectual,
rather than arbitrary and inflexible." '

It is competent of course for the appellate court to reverse that
decision and to apply the rule as it sees fit but the decision in the
Butland case may be rightfully regarded as establishing the rule
of property for this jurisdiction. In the opinion of the Court the
rule of stare decisis is applicable in this case and is in itself sufficient
to justify the dismissal of this petition.

•Russel V. Place, 94 U. S. 006, 24 L. ed. 214.
' Chamberlain, Stare Decisis, 19.

UNITED STATES V. LUNT, MAY 17, 1912. 279

IN THE UNITED STATES COURT FOR CHINA.
United States v. Carroll P. Lunt.

[Criminal Cause No. 66; filed May 17, 1912.]

SYLLABUS.

(By the Editor.)

HOMICIDE: NEGLIGENCE: EVIDENCE reviewed and found insufficient
to show criminal intent or carelessness.

Frayik E. Hinckley, Esq., U. S. Dist. Atty., for the prose-
cution.
Nemo, contra.

Thayer, J.:

The District Attorney has correctly stated the law de-
fining the various forms of homicide. The defendant was
in a boat with four Chinamen, three of whom were boatmen.-
He. had with him an ordinary sporting gun which he in-
tended to use in shooting birds. After sailing some time
and no birds having come in range he broke the gun and
lay down for rest putting his leg over the gun so as to
prevent it being handled by the Chinese should he fall asleep.
When later he got up he attempted to close the gun. The
parts did not work smoothly. He was compelled to use
considerable muscular force and the parts finally came
together with a shock and at the same time one of the
cartridges in the gun exploded. A Chinese boatman, seated
only a few feet from the defendant and a little above him
at the time of the discharge, received the contents of the
cartridge in the side of his face and neck, and death ensued
almost instantaneously. There had been no trouble be-
tween him and the defendant and the evidence discloses an
entire want of motive for an attack, and hence no criminal
intent. It was a pure accident and the sole question is
whether the defendant so handled the gun at the time of
its discharge as to be reasonably guilty of criminal care-
lessness. He was not at the time engaged in any unlawful
act. Game is plentiful about Harbin and it was entirely
legitimate for him to engage in sport. He was out partly
for that purpose and his companions must have been fully

280 1 EXTRATERRITORIAL CASES.

aware of that fact. His purpose and surroundings were
such as to warrant the handling of the gun. He was bound
to use care in doing so but under the circumstances of
this case he cannot be presumed to have been criminally
careless. Unless the contrary is shown by positive evidence
the defendant is entitled to the presumption of innocence
and carefulness.

Under ordinary conditions the mere closing of the breach
of a gun would not cause its discharge and testimony was
given by a gun expert that such closing was not considered
at all dangerous. When the moment is reached for firing
the trigger is pulled, a spring is released and a sharp
blow follows upon the sensitized cap and the discharge
immediately occurs. Such is the purpose of the mecha-
nism and if it fail to meet that purpose the gun is fatally
defective. There was no evidence that such was the case,
nor that the defendant had any reason to doubt that
the gun was in normal condition. It is also well known
that notwithstanding the exercise of great care in the
handling of firearms accidents often occur terminating most
unfortunately and the Court is well satisfied from the evi-
dence that this is one of those unfortunate cases where
the wound was inflicted and death occurred thru pure
misadventure.

Under these circumstances no criminal responsibility
attaches to the defendant and the Court has no hesitation
in finding a verdict of not guilty. The defendant will be
discharged and the shotgun returned to its owner.

IN THE UNITED STATES COURT FOR CHINA.

Louis Duquesne, Agent of the Mission Catholique du
Tchely Sud Est, v. James H. Brown.

[Civil action No. 108; filed October 18, 1912.]

SYLLABUS.
(By the Editor.)

1 CITIZENSHIP once established, continues until change is proved.
2. REMEDIES: PLEADING. Adequate remedy at law held not apparent
from pleading assailed.

DUQUESNE V. BROWN, OCT. 18, 1912. 281

3. PARTIES: JOINDER. Where it appears that defendant in an action
involving title and possession has transferred his interest in
the property an application to join the transferee vv^ill be granted.

Edgar Pierce Allen, Esq., for plaintiff.
Messrs. Jernigan & Fessenden, for defendant.

Thayer, J.:

This action involves the right of possession and right
of property of certain land. Defendant has filed a demurrer
and plaintiff a petition seeking to join a third party as
defendant. Upon call of the case defendant entered an
oral plea that he is not a citizen of the United States.
That is of course a plea to the jurisdiction of the court;
for if upon the evidence the court finds that he is not a
citizen it has no jurisdiction. The evidence, however, shows
that defendant has, for several years, claimed to be a nat-
uralized citizen of the United States. He has urgentlj/
solicited from the administrative branch of the Government
protection for his personal and property rights in China.
He has filed in court v^hat purports to be a certified copy
of his naturalization papers issuing from a court at Chi-
cago. The copy does not appear to be as fully authenti-
cated as might be technically required in order to give it
full effect as evidence but no reason is apparent for doubt-
ing its authenticity.

Now what reason is suggested on defendant's behalf
why the court should ignore the certificate of naturaliza-
tion? The defendant states that he has initiated a proceed-
ing in the country of his birth to repatriate himself as a
Russian subject but that it has not been completed. His
present status continues until his citizenship is changed and
his plea must be overruled.

The defendant complains bitterly of the attitude assumed
tov^ard him by the administrative branch. The court is not
concerned in that matter. The duty of the administrative
branch is one that concerns itself, except in particular cases
where resort may be had to the Judicial Department by one
seeking to require by mandamus the performance of some
executive act which the appropriate officer has refused or
neglected to perform. That remedy has not been invoked

282 I EXTRATERRITORIAL CASES.

by defendant. The question as to whether the Depart-
ment of State in deahng with him may have acted in
violation of his legal rights is not before the Couit.

The demurrer, so far as it states any ground of which
the court can take cognizance, is an objection to the com-
plaint as being a suit in equity rather than a suit on
the law side of the court, averring that the plaintiff has
a plain, simple and complete remedy at law. That seems to
be the only point suggested on the face of the demurrer.
The objection is not well taken. Considering the general
character of the claim set forth in the complaint, it seems
to the couit that it would have been difficult if not im-
possible for plaintiff to have secured an adequate remedy
without proceeding in equity. The demurrer must be over-
ruled.

The application to join Fanny Beck as a defendant is
based upon affidavits of plaintiff's counsel setting forth in
substance that defendant has stated that he has transferred
all his right, title and interest in the disputed premises to
one Fanny Beck. The defendant has likewise so stated in
open court. The application is granted and, as Fanny Beck
is a non-resident, service will be made upon her by publica-
tion.

IN THE UNITED STATES COURT FOR CHINA.
United States v. Adolph Grimsinger.

[Criminal cause No. 69; filed October 30, 1912.]

SYLLABUS.
(By the Editor.)

1. CRIMES: Escape: Circumstantial Evidence found sufficient to

show that the accused aided a fellow prisoner to escape but
not to show that the assault on the prison guard was for that
purpose but rather to effect his ov/n escape.

2. Id. : Penalties fixed by the special acts of Congress deemed not

binding on this court.

F. E. Hinckley, Esq., U. S. Dist. Atty., for the prosecu-
tion.

Messrs. Fleming & Rice, for defendant.

UNITED STATES V. GRIMSINGER, OCT. 30, 1912. 283

Thayer, J.:

The defendant on June 28, 1912, was brought to the
American Prison in Shanghai by the municipal police,
having been arrested as a deserter from the United States
Navy, pursuant to a reward offered. He was received in
said prison and detained for delivery to the proper naval
authorities. On the evening of the same day he escaped.
Two or three days thereafter he was arrested and brought
before the American Consular Court under warrant duly
issued, tried for prison breach, found guilty and sentenced
to sixty days imprisonment. At the same time additional
charges were made against him, first, for assault, second,
for robbery of prison keys, and third, for aiding in the
escape from prison of one James G. B. Hadley at that time
confined under sentence from this court. Preliminary
examinations were held and the court dismissed the charge
of robbery and committed the defendant to this court for
trial on the other two charges. No appeal was taken from,
the sentence of the Consular Court for prison breach and
the defendant entered upon and has served his sentence
therefor.

During the course of trial in this court counsel offered
evidence that at the time of prison breach the defendant
was not detained in jail under a regularly issued warrant.
Such evidence must be excluded from consideration as in-
admissible. Full effect must be given to the judgment of
the Consular Court. No appeal having been taken its
validity cannot be attacked collaterally.

Before trial in this court the District Attorney filed an
information covering the charges on which the defendant
was committed to this court. A plea of former conviction
was filed and overruled by the Court as having no merit.

The evidence establishes beyond reasonable doubt that
at or about 9.30 o'clock of the evening of June 28, 1912, the
defendant was confined in a cell of said prison; that he
called the guard and asked to leave said cell to visit a lava-
tory located within the prison precincts; that the guard
opened the cell in response to said request and as he turned
his back toward the prisoner received from him on the back

284 I EXTRATERRITORIAL CASES.

and top of his head a violent blow from a water bottle
partially filled ; that as a result of this blow the guard was
seriously injured and became partially or wholly uncon-
scious; that the defendant escaped and also Hadley, the
prisoner who was confined in another cell; that the keys
to all of the cells were at that time in the possession of
the said guard and that the only obvious means by which
Hadley could have been released was by the defendant
obtaining possession of these keys and opening the cell
door.

The first of the two sections under which the information
is laid reads as follows:

"That if any person, with intent to effect or aid the escape of a
person imprisoned in any penitentiary or sentenced to such impris-
onment, shall assault any officer or person having the charge or
custody of the person so imprisoned or sentenced, such person, upon
conviction thereof, shall be punished by imprisonment in the peni-
tentiary not less than two nor more than fifteen years." ^

In order to convict under this statute the evidence must
establish that the assault was made with intent to efi'ect
or aid the escape of a person in prison. There is no direct
evidence that the assault on the prison attendant was made
with intent of effecting or aiding Hadley's escape. -It is
reasonable to presume, in the absence of contrary evidence,
that the defendant's purpose was to make his own escape,
that the assault was made for that purpose and that the
unlocking of Hadley's cell followed without premeditation.
In the absence of evidence establishing such intent the
finding on this count must be not guilty.

But while there is no direct evidence that defendant took
the keys after assaulting the prison guard and opened
Hadley's cell door, the circumstantial evidence is so strong
as to satisfy the Court beyond a reasonable doubt that he
did and the finding must be that he is guilty of aiding in the
escape of Hadley.

The penalty fixed in the second section - invoked, is impris-
onment of not less than ten nor more than twenty years. Is

^Act of Congress of March 3, 1899, Sess. Ill, 30 U. S. Stats, at
Large, Ch. 429, tit. I, sec. 102.
' Id., sec. 103.

UNITED STATES V. GRIMSINGER, OCT. 3 0, 1912. 285

this Court upon a conviction under this statute bound by
the penal clause of the statute? Ordinarily such a question
would furnish its own answer inasmuch as the case must
be exceptional where one part of a statute is applicable and
the other part not. That possibly such a situation may
exist in this extraterritorial jurisdiction results from the
peculiar provisions found in the statutes, one of which reads
as follows :

"The punishment of crime provided for by this title shall be by
fine or imprisonment, or both, at the discretion of the officer ivho
decides the case, but subject to the regulations herein contained, and
such as may hereafter be made. It shall, however, be the duty of
such officer to award punishment accordincj to the magnitude and
aggravation of the offense.""

The punishments for certain crimes and offenses are fixed
under other sections of the same chapter.

It is difficult to construe this definite and specific language
otherwise than as disclosing the intent of Congress that
the fixing of penalties for the punishment of crimes in
this extraterritorial jurisdiction should be at the discre-
tion of the trial officer. Seemingly the only limitation is
that it is made the duty of such officer, "to award punish-
ment according to the magnitude and aggravation of the
offense." It is extraordinary that Congress deemed it wise
or necessary to give such power to the judge of any court.
It may be accounted for by reason of the fact that at the
time when these statutes were enacted, as well as at the
present time, provisions for the execution of penalties in
the several consular districts of China were very meagre
and difficulties in the way of executing such sentences as
would be imposed and executed by courts within the United
States were almost, if not quite, insuperable.

The acts of Congress relating to Alaska and the District of
Columbia, over which the Government of the United States
exercises exclusive jurisdiction, are "laws of the United
States" within the meaning of the statute conferring juris-
diction upon this couit.* There is nothing in the decision of
the Court in the case cited which suggests that the penalties

•U. S. Rev. Stats., sec. 4101.
* Biddle v. U. S., ante, p. 120.

286 I EXTRATERRITORIAL CASES.

named in said acts would be binding upon this Court in case
of conviction for any offense defined in those codes. In fact
obvious difficulties would arise in that respect since the
penalties fixed for similar olfenses in the two codes differ
from each other. ' In face of such conflict and in the prac-
tical difficulties which they present the Court holds that the
section above quoted leaves the fixing of penalties for crim-
inal offenses committed within this extraterritorial juris-
diction to the discretion of trial officers. For that reason it
is not believed that the Court is bound by the penalties pre-
scribed in these statutes. The holding of the Circuit Court
of Appeals will be satisfied by regarding it as a declaration
that wherever any criminal offense is found to be defined
in any of the laws relating either to Alaska or to the Dis-
trict of Columbia that fact is sufficient to give this Court
jurisdiction thereunder for that particular offense if com-
mitted in China.

But while the penalties fixed in those codes are not
binding on this Court they may be well utilized as guides
and treated with great respect. Any departure from their
limits should be made only on grounds which justly appeal
to the sound discretion of the Court.

IN THE UNITED STATES COURT FOR CHINA.
United States v. Adolph Grimsinger.

[Criminal Cause No. 72; filed December 9, 1912.]

SYLLABUS.
(By the Editor.)

1. DESERTION is an offense at common law and also under the naval

regulations.

2. Id. : Arrest : Waiver of Process. Where the accused admits his

guilt when brought before a magistrate formal complaint and
warrant are unnecessary.

° The solution of this difficulty has been found by applying a rule of
interpretation as old as the Twelve Tables (V) that where two
statutes cover the same subject, the later prevails. 36 Cyc, 1130.
Ed. See post, p. 937.

UNITED STATES V. GRIMSINGER, DEC. 9, 1912. 287

3. Id. : Id.: Detention. A consular judge has power to commit and
detain a deserter from the navy preparatory to delivering him
to the proper authorities.

F. E. Hinckley, Esq., U. S. Dist. Atty., for the prosecu-
tion.

/. W. Rice, Esq., for defendant.

Thayer, J.:

Defendant is charged with assault upon a prison guard.
After a plea of "not guilty" and after the prosecution had
closed its case, the accused went on the stand and testified
that he committed the assault as alleged. He testified in
detail as to how the assault was committed without in-
dicating any regret except that he had foolishly involved
himself in further trouble.

There is no occasion to review the evidence. Counsel for
defendant presents grounds upon which he insists that his
client was not in lawful custody when the assault was com-
mitted and that therefore he could not be held guilty of the
statutory crime of assault on a prison guard.

Defendant was in the naval service of the United States.
He had been given shore leave for twenty-four hours and
had not returned for eighteen days thereafter. On the
eighteenth day he was arrested by the municipal police of
Shanghai and immediately brought to the American Con-
sular Court. This arrest was made by the police at the
instance of the commanding oflftcer of the ship who had
communicated with the police in writing, giving a personal
description of the accused and-designating him at the time
as a "straggler". His real status is defined as follows:

1. Absence without leave, with a manifest intention not to return,
shall be regarded as desertion.

2. Absence without leave, with a probability that the person does
not intend to desert, shall at first be regarded as straggling, but at
the end of ten days as desertion.^

He was brought before the consular judge in the cus-
tomary way. A police charge sheet was placed before the

* U. S. Naval Regulations, sec. 815.

288 I EXTRATERRITORIAL CASES.

judge on which the accused was charged with "desertion".
He was examined by the consular judge and admitted that
he was a deserter as charged. The judge then committed
him to the consular prison for detention and delivery to
the proper naval authorities. A few hours later in the
evening of the same day, while in said prison, the assault
confessed by him was committed. It is material to note
that no unreasonable time had elapsed since the committal
of the accused and that it is not claimed that there was
any neglect on the part of the proper officers to transfer
the accused to naval custody.

The first contention is that the defendant was unlawfully
arrested by the municipal police inasmuch as the arrest
was made without any formal warrant. We dismiss that
without further consideration as, whether or not the arrest
was unlawful on this account, the accused was immediately
taken to the proper American court to whose jurisdiction
he was submitted. The consular judge, as was his manifest
duty, took jurisdiction. The prisoner not only made no
objection to the jurisdiction, but admitted his identity and
guilt. Police custody of the accused immediately ceased.
The assault was committed while he was in consula; cus-
tody and therefore no inquiry is necessary respecting the
legality of police action. The Court, however, is not at all
alarmed over the extraordinary solicitude of counsel re-
specting the danger suffered by the police in rendering
such service. It corresponds exactly to the service rendered
by police in home ports, is a valuable and necessary service
and whether or not explicitly provided for by law, it is
not likely to be condemned by the courts, nor is it probable
that any deserter will challenge its effectiveness.

The next point raised is that the consular judge in com-
mitting the defendant on the confessed charge of desertion
did not have any sworn complaint before him and did not
issue any formal warrant,- The consular judge testified
that on examination the defendant admitted his guilt.
Under those circumstances the entry made on the charge

■ Citing Consular Court Regulations, sees. 57 and 58.

UNITED STATES V. GRIMSINGER, DEC. 9, 1912. 289

sheet and the act of commitment obviously constituted a
full compliance with the Regulations. A contrary conten-
tion approaches closely to absurdity. The consular judge
chose to act as a committing magistrate. The function he
was performing was in aid of the exercise of fuller powers
by another jurisdiction, viz., the naval establishment. The
defendant denies that he had any lawful authority to so
act. It is argued that the crime of desertion from the navy
is not a civil offence and can only be tried by a court
martial. If, as contended by counsel, no statute of the
United States classifies desertion as a civil offence, then
resort may be had to the common law ^ by which desertion
was a civil offence and it was declared to be a felony by
statute.^ Jurisdiction could have been asserted by the con-
sular judge under that law and would rest securely on that
foundation. But it is clearly sustained as well on the
general police powers which inhere in it as a court of
general jurisdiction in criminal matters. It is an extra-
territorial court. The numerous cases cited by counsel all
relate to the limitations imposed upon courts at home
specially created by statute and whose jurisdictions are
usually clearly defined. It is well known that in extra-
territorial courts of the United States the jurisdiction is
not clearly defined. It is apparent that Congress recog-
nized that in the interest of the administration of justice
in another country and under novel and extraordinary con-
ditions it was proper and safe to grant larger powers to
such judicial officers than are granted in home courts under
familiar constitutional restrictions.^

The consular judge ordered defendant's detention and de-
livery to the naval authorities. Manifestly this was a wise
and just order. The Court is equally satisfied that it was a
lawful order, clearly within the jurisdiction of the court.
It follows, therefore, that the detention of the defendant
was lawful detention.

The finding must be guilty.

' U. S. Rev. Stats., sec. 4086.
*18 Henry VI, C. 19.
° In re Ross, ante, p. 40.
14008 o. w. — 19

290 I EXTRATERRITORIAL CASES.

IN THE UNITED STATES COURT FOR CHINA.

Abdul Bari Arcade Amusement Company v. R. Hughes
and The Hughes Musical Comedy Company.

[Civil action No. 107; filed January 14, 1913.]

SYLLABUS.

(By the Editor.)

CONTRACTS: BREACH: DAMAGES for breach of a contract to occupy
a theatre fixed from the booking sheets with deductions for un-
paid reservations and profits earned from other occupancy.

E. S. Moberly Bell, Esq., for plaintiff.
Joseph W. Rice, Esq., for defendant.

Thayer, J.:

This is an action for damages growing out of an alleged
breach of contract resulting from failure of defendant to
occupy plaintiff's theatre at Tientsin on nights contracted
for. The contract is evidenced by telegrams passing be-
tween the parties and was not otherwise reduced to writing.
There was no specified number of nights agreed upon but
it sufficiently appears that the engagement between the
parties was for more than one night. Plaintiff claims
damages on the basis of a seven nights' engagement. De-
fendant named May 8 as the date of opening and four
plays in which the company would appear. It is fair to
assume that the engagement was for a number of nights
not less than four. On May 4 defendant wired from
Shanghai that the company could not arrive at Tientsin on
the 8th and asked claimant to await receipt of letter. He
did not at that time cancel the engagement or advise claim-
ant that the company would not come later and it was
not until May 8 that the engagement was definitely can-
celled.

The Court is satisfied on the proofs that there was a
Clear breach of contract. On the law of the case the
claimant is entitled to such damages as he has actually
suffered growing naturally and normally out of said breach.
Profits may be considered as an element of damage if

IN RE CONSUL-GENERAL'S REPORT, JAN. 29, 1913. 291

they flow naturally from the breach, are not too remote
and can be proved with sufficient certainty.'

Plaintiff submits the booking sheets for the first four
nights, May 8, 9, 10 and 11, which are verified on the
stand by plaintiff's manager. This witness did not per-
sonally sell the tickets, nor did he pay out the money to
ticket purchasers in reimbursement, and this testimony
cannot therefore be given the weight which would properly
attach to first hand evidence. It is also lacking in that
certainty which would compel the Court to adopt it as
fixing definitely the exact amounts received in sale of tickets
for the four nights. But the Court is well satisfied that
the booking sheets in evidence may be taken as a guide
for determining certain profits which would have accrued
to the plaintiff but for the breach of contract. It is be-
lieved reasonable and fair to treat twenty-five per cent
of said bookings as having been reserved and not paid for
and therefore as not being sufficiently established as certain
proceeds upon which profits could be reasonablj^ based.
From the amount thus ascertained there should be deducted
a proportionate amount of the sum earned by the plaintiff
company for four nights of cinematograph show. Judg-
ment will be entered for the plaintifl" for seven hundred
and twenty-five dollars and costs.

IN THE UNITED STATES COURT FOR CHINA.

In re Hankow Consul-General's Report in the Estate
OF James Winn, Deceased.

[Filed January 29, 1913.]

SYLLABUS.

1. ADMINISTRATION OF ESTATES: CONSULAR OFFICERS in China, in

the administration of estates, must act judicially.

2. Id. : Id. : Merger. All powers conferred on consuls in China by

sees. 1709-11 of the Revised Statutes to administer estates of
deceased Americans, are merged in the powers subsequently
conferred when said consuls were clothed with full probate ju-
risdiction.

' Page, Contracts, III, p. 2399.

292 I EXTRATERRITORIAL CASES.

3. Id. : Id. : Executive Acts. Said sections are still binding upon

consuls so far as requiring executive acts not in conflict with
the exercise of probate jurisdiction.

4. Id. : The Supervisory Control over the discharge by consular of-

ficers of duties relating to the estates of decedents in China
required by sec. 2 of the Act of June 30, 1906, must be exercised
and such officers must be guided by the requirements of that
section.

Thayer, J.:

The Consul-General at Hankow, China, has submitted a
full report to this Court of the administration of the above
entitled estate, the assets of which are less than five hundred
dollars, and has requested the instructions and approval
of this Court. His action is doubtless intended to be a
compliance with the provisions of section 2 of the Act
of June 30, 1906, which relate to the supervisory control
to be exercised by this Court "over the discharge by Consuls
and Vice-Consuls of the duties prescribed by the laws of
the United States relating to the estates of decedents in
China."

Certain admfiinistrative powers and duties relative to
estates of American citizens dying in foreign countries
are charged upon consular officers by certain general pro-
visions ' which contain no exception of those who may be
located in countries where the United States exercises ex-
traterritorial jurisdiction. They constitute a mixture of
executive and judicial duties and were obviously intended
to provide for the conservation of the estates of decedent
American citizens, which otherwise had no protection except
that afforded by foreign law.

The later laws - conferring judicial powers on consular
officers in China contain no specific provisions of repeal or
amendment of these earlier statutes. That probate
jurisdiction was conferred on consular officers in China
has been decided on full hearing ^ and may therefore be
taken as settled law.

^ U. S. Rev. stats., sees. 1709-1711.

' Act of Congress of August 11, 1848, 9 U. S. Stats, at Large, Sess.
I, Ch. 150; Act of June 22, 1860, 12 U. S Stats, at Large, Sess. I,
Ch. 179, p. 72; Rev. Stats., sees. 4083 et seq.

=• In re Roberts Will, U. S. Court for China, May 15, 1907.

IN RE CONSUL-GENERAL'S REPORT, JAN. 29, 1913. 293

Some confusion has arisen in construing these several
statutes since it has been suggested that in the administra-
tion of the estates of deceased Americans in China, consular
officers may possess alternative powers, either to dispose of
them administratively as executive officers, or to treat them
judicially as officers possessing full probate jurisdiction.

It does not occur to us that there should be any serious
difficulty in harmonizing these two enactments.

1. As to the earlier laws there must be a differentiation
of the purely administrative duties and the authority to
dispose of the decedent's property, pay his debts and
remit balances to the Treasury of the United States. The
latter duties are at least semi- judicial in character and cover
functions which are embraced in probate jurisdiction ex-
ercised by competent courts.

2. Consular officers in China having been given full pro-
bate jurisdiction, such powers as were previously exercised
by them under sections 1709-1711 as partake of judicial
character, must be assumed to have been merged in the
probate jurisdiction conferred by the later laws, while the
purely administrative duties therein charged upon them
may still be exercised.

3. It must be apparent that the granting of full probate
jurisdiction is a material enlargement of the powers
previously granted on the same subject matters.

Prior to the passage of acts conferring judicial powers
in extraterritorial jurisdictions consuls in China undoubt-
edly enjoyed the administrative powers relating to estates
of deceased Americans conferred by the provisions first
above cited.

It is material to observe that the administrative powers
first conferred, beginning as early as 1792, were the only
powers that could be legitimately exercised by consuls in
such matters, since they were exercised in foreign territory
which could not be the forum for American courts.

It is a familiar rule of construction of statutes that

"A new statute which affirmatively grants a larger jurisdiction or
power, or right, repeals any prior statute by which a power, juris-
diction or right less ample or absolute, has been granted."*

* Sutherland, Statutory Construction, 145.

294 ^ EXTRATERRITORIAL CASES.

It is clear that the giving of full judicial powers in
probate matters to consuls in extraterritorial jurisdictions
materially enlarged the powers previously enjoyed. In
fact it gave them an entirely new character. For purpose
of administration of estates of deceased Americans they
became judicial officers.

The acts codified in sections 4083 to 4130, inclusive,
clothed them with full judicial powers relative to probate
matters, similar and analogous to those exercised by probate
courts in home jurisdictions.

4. The creation of cou ts and the definition of laws and
procedure applicable in extraterritorial jurisdictions were
intended by Congress to supply a regular system of jurispru-
dence demanded by the treaties which allowed the exercise
of such jurisdiction.'

Such system of jurisprudence having been cieated and
consular officers having received judicial powers to deal
fully with probate matters, the exercise of any adminis-
trative powers theretofore given, in conflict therewith, be-
came unnecessary, since the same officers possessed full
judicial powers and could deal judicially with every ques-
tion which could arise in any such matter.

5. The continued exercise of the lesser powers would be
fatally repugnant to the judicial authority possessed by
them, and would obviously tend to introduce confusion and
uncertainty in their administration of estates. In partic-
ular causes the question as to whether the estate should
be handled administratively or judicially would have to
be determined and it is impossible to discover any reason
which could justify the lodging of such power in the hands
of any office •. Possessing full power to deal with the
matter judicially, what reason can be assigned why he
should not exercise those powers fully in the protection of
every estate and leave nothing to irregular procedure?

In fact the whole purpose of Congress in creating extra-
territorial jurisdiction was to furnish to American citizens
who lived therein the same remedies and the same regularity
of procedu" e which they could invoke in their home juris-
diction.

Rev. stats., sec. 4117.

IN RE CONSUL-GENERAL'S REPORT, JAN. 2 9, 1913. 295

The earlier laws were obviously intended to clothe con-
sular officials with such powers as were permissible within
foreign countries to enable them to assist in the conserva-
tion of estates of our citizens who might die while within
those countries.

The treaties with China and some other countries made
it possible to create within their boundaries courts of the
United States which were empowered to adjudicate all ques-
tions under law and procedure substantially the same as in
our own country. Such courts Congress has created. The
body of law and the procedure has been provided. In
furtherance of this purpose a higher court of the United
States has been created and provisions made for review of
final decisions in the Court of Appeals. Everything points
to the clear intent of Congress to establish legular judicial
proceedings to make it possible to supply protection to life
and property of American citizens in China.

The single fact that the later laws contain no specific
words of amendment or repeal of the earlier laws relating to
general administrative duties of consuls in such matters
in other foreign countries, has little significance. The other
considerations named sufficiently disclose the intent of
Congress.

It is clear that, as probate jurisdiction has been conferred,
all estates in China must be administered judicially. Such
being the case the clear and unambiguous terms of section
2 of the Act of June 30, 1906, must be complied with. The
supervisory control over the discharge by consuls and vice-
consuls of duties relating to the estates of decedents in
China required by that act, must be exercised.

The Court is advised that this section has not heretofore
been uniformly complied with. If that is true it has no
doubt resulted from the natural confusion arising from the
lack of clear interpretation of these statutes.

From a careful examination of sections 1709-1711 of the
Revised Statutes, it is apparent that consuls may utilize
the means therein described in the exercise of their probate
jurisdiction, that is to say:

1. In the case of an estate where no legal representative appears
he may take possession of tlie personal estate.

296 I EXTRATERRITORIAL CASES.

2 He may inventory them with such assistance as he may choose.

3. He may, thru regular judicial proceedings, administer the estate,
ordinarily thru administrators or executors.

4. If there shall be a residue left and no heirs are known to the
court to whom the same may be lawfully distributed, subject to the
supervisory control of the United States Court for China, said residue
may be remitted to the Treasury of the United States.

5. Compliance with the provisions of section 1710 in no way con-
flicts with the exercise of full probate jurisdiction. They provide only
for executive reports to the Secretary of State.

6. Section 1711 must be construed by consular officers in China
as a guide in the discharge of their probate jurisdiction. The pro-
visions therein contained were obviously intended for the control of
consuls in non-extraterritorial countries but are not inconsistent
with the duties and powers ordinarily charged upon probate judges.

In the case under consideration the consular officer has
construed the statutes correctly. In his administration of
the particular estate there have been some slight irregular-
ities which were either justified by the circumstances of
the case or were reasonably unavoidable.

His action is approved in detail.

An opinion, said to have been prepared by an assistant solicitor
appeared under date of May 13, 1913, some four months after this
decision, and contained the following passage:

"In Minor on Conflict of Laws (page 230), it is stated that the
primary administrator (in a case where the decedent left personalty
in several states of the United States) is the one appointed by the
courts of the decedent's domidl.

It is concluded in view of the foregoing that the question of
whether a consular officer in China should proceed in the matter of
administering the estate of a deceased national in the officer's judicial
capacity or in accordance with the provisions of section 1709 R. S.,
should be determined with reference to the domicil of the decedent
at d«ath. If such domicil were in China, and if the estate were less
than $500 in amount, it would apparently be the duty of the officer
to have the estate administered in his court and to make reports
thereon to the Department as provided by said section 650 of the
Consular Regulations. Where, however, the decedent had not ac-
quired domicil in China, and regardless of the amount of the estate,
it would seem that the consul should proceed under the provisions
of section 1709 R. S., making his reports to the court and securing
the court's sanction to various matters of administration as required
by section 2 of the Act of June 30, 1906."

If accepted and followed, this opinion would have deprived Amer-
ican Courts in China of a considerable part of the jurisdiction which
they had continuously exercised for two generations. Fortunately
it was afterward virtually withdrawn.

The one authority cited for the conclusion stated is Minor, Conflict
of Laws, 230, from which a part, only, of the following sentence is
taken :

DIEDERICHSEN & CO. V. CONNELL BROS., JUNE 9, 1913. 297

"The primary administrator, in such case, is the one appointed by
the courts of the decedent's domicil, and to him will ultimately be
remitted all the funds of the decedent in other States, after ad-
ministration there has been accomplished and the creditors there have
been satisfied."

It will be seen that even this sentence recognizes the right of ad-
ministration "in other States" than that of decedent's domicil, and on
the page immediately preceding the above quotation is the following:

"If the personalty of the decedent is situated in several States, he
(the administrator) must be reappointed or a new administrator
must be nominated in each State before the property there situated
can be administered."

It will be observed that when Mr. Minor's full expression is before
us he is very far from saying that there can be no administration
except in the jurisdiction of the decedent's domicil.

Clearly all that he means to say is that if letters testamentary or
of administration are taken out at such domicil, the administration
there is primary and that in the other jurisdictions ancillary. This
in fact is the well settled law. Judge Woerner, in his authoritative
work on the "American Law of Administration" (2nd edition, p.
204), says:

"The rule in America is universal, that administration may be
granted in any State or Territory where unadministered personal
property of a deceased person is found, or real property subject
to the claim of any creditor of the deceased; and that probate of the
will of any deceased person may be granted in any State tvhere he
leaves personal or real property.^'

In another work of authority (18 Cyc. 69) it is stated:

"Locality of personal assets belonging to the estate of a decedent
confers a local probate jurisdiction, regardless of the consideration
of last domicil or residence, altho ancillary as matter of comity.
Such jurisdiction being founded in universal convenience, the courts
of one country or state do not feel compelled to wait until those of
another have acted, nor remit their own domestic claimants to foreign
jurisdictions."

IN THE UNITED STATES COURT FOR CHINA.

h. diederichsen & company v. connell brothers
Company.

[Civil Action No. 118; filed June 9, 1913.]

SYLLABUS.

1. CONTRACTS: TIME OP PERFORMANCE. "In the contracts of merchants

time is of the essence." (115 U. S 188).

2. Id. : Id. A contract for shipment "during the month of February

1912" is broken if the ship does not sail till March.

298 I EXTRATERRITORIAL CASES.

3. Id. : Id.: Excuse: Evidence reviewed and found insufficient to show

diliarence excusing- the delay.

4. Id. : Interpretation. The rule of ejusdeni generis explained and

applied.

Messrs. Jernigan & Fessenden, for plaintiff.
Messrs. Fleming & Davies, for defendant.

Thayer, J.:

This action is brought to recover damages alleged to have
been suffered by reason of a breach of the following con-
tract :

"Chefoo, Oct. 17th, 1911.

CONTRACT.

This certifies that we have this day ordered for Messrs. H. Died-
erichsen & Co., Chefoo, the following goods to be shipped by steamer
sailing from either of the following ports: Seattle, Tacoma, Portland,
San Francisco, Vancouver, during the month of February, 1912.

Terms confirmed bankers' letter of credit three days' sight draft
with interest, documents delivered against payment.

The goods to be for the account of the buyers, who are to bear all
risk of damage, shortage, leakage and breakage also all risk of fire.

All agreements herein contained or implied are contingent upon
strikes, accidents and other delays unavoidable or beyond our control.

80,000 (eighty thousand) bags of American flour (standard 491b.)
quality equal to what is known under the brand of "Morjon" at the
pi'ice of G. $4.1.5 (G. $ four and fifteen cents) per four bags c.i.f.
Chefoo.

Insurance risk (with average, free of 3 (three) per cent, if not
better available) to cover sound delivery > to be covered by shippers
in the name of consignees.

CoNNELL Brothers Company.

p.p. A. BOUGHTAN."

The steamer upon which shipment was made did not sail
in the month of February. It sailed on March 8, 1912, from
Tacoma. Defendant contends that circumstances were such
that failure on its part to make shipment during the month
of February comes within the provisions of the exemption
clause in the contract, and issue has been made on that ques-
tion, evidence taken and, on stipulation of counsel, that
question has been argued by counsel and submitted to the
Court as a preliminary question, it being agreed that if

DIEDERICHSEN & CO. V. CONNELL BROS., JUNE 9, 1913. 299

said question is decided adversely to the defendants, further
proofs may be taken on the question of damages.

On the proofs it is sufficiently established that the de-
fendant company took the order in good faith and made
efforts to ship in the month of February. In fact there is
no evidence that defendants could have benefited in any
way by a delay of shipment. The question as to whether
or not they used due diligence in arranging for shipment
within the time prescribed by the terms of the contract,
will be considered later.

In the latter part of December, thru regular shipping
channels, defendant arranged to charter the ship Indien
which was then in South Atlantic waters, was reported
to be due in San Francisco on January 25, 1912,
and, it was claimed by agents, would be in Tacoma in early
February. While the proofs on these points are not in the
most conclusive form, the negotiations appear to have been
conducted in the usual way and the information received
by defendant seems to have been such as would ordinarily
be accepted by commercial agencies as reliable.

It seems obvious to the Court that in such matters absolute
certainty could rarely be commanded. However, the Indien
was unable to arrive in time, whether because of any ac-
cident to her machinery is not shown. Some time in Jan-
uary the defendant was notified that she could not arrive
in time for February shipment and immediate effort was
made to secure another ship with the result that the Har-
pagus was chartered. It was expected to arrive in Puget
Sound by the middle of February, and did so arrive on that
date at the government Navy Yard at Bremmerton loaded
with co?.l. Some delay occurred in her unloading there and
she did not arrive at Tacoma, the point of shipment,
until February 29. The loading of the flour began on March
2, was concluded on March 3 and the ship sailed on March 8,
1912. It is thus seen that there was a breach of the contract
in that respect by the defendant, unless it can show that
the delay in shipment was due to some one or more of the
excepted causes. It is well settled that :

"in the contracts of merchants time is of the essence. The time of
shipment is the usual and convenient means of fixing the probable

300 I EXTRATERRITORIAL CASES.

time of arrival, with a view to providing funds to pay for the goods,
cr of fulfilling contracts with third persons." '

The provision in the contract that the shipment should be
made in February is as obligatory as are the quantity and
brand of flour to be shipped. As the defendant is bound by
that material provision and seeks to avoid its binding effect,
the burden of proof is on it to show that failure to ship in
that month was due to some of the excepted causes recited
in the contract. As a preliminary proposition it must be
held that defendants must show that they used due diligence
in providing for this shipment in accordance with the pro-
visions of the contract; otherwise no resort can be had to
the excepting clause.

The question of what constitutes due diligence must de-
pend on the facts and circumstances of each case. In that
at bar the shipment was required to be made from one of five
American Pacific coast ports and was for transportation
across the Pacific Ocean to one of the minor ports of China.
Chefoo, the port of delivery, has no direct steamer connexion
with any of the five ports named. Shipment by any of the
regular trans-Pacific steamship lines would require trans-
shipment and not only, presumably, increase the cost of
transportation to the shipper but result in loss of time to
the consignee. The reasonable and customary course in
such cases would be to charter for direct shipment especially
where the consignment in tonnage was as large as in this
case.

The first step taken by the defendants was to negotiate
for the charter of the Indien. The proofs fail to show that
negotiations were begun with reference to securing any
ship until the early part of December. The agreement for
charter was made on December 29. At that time the Indien
was supposed to be at or near Buenos Aires. The agents
reported by letter of December 30:

"The steamer is expected to have left Buenos Aires to-day for San
Francisco via Coronal and eventually a nitrate port and we expect
her discharge at San Francisco about February 15-20."

If the time consumed in sailing from San Francisco to
Tacoma is added to February 20, it is obvious that the

' Norrington v. Wright, 115 U. S. 188, 29 L. ed. 366.

DIEDERICHSEN & CO. V. CONNELL BROS., JUNE 9, 1913. 301

margin for loading and sailing in the month of February is
very narrow. It is clear we think that there was not such
a factor of safety as would have been insisted upon by a
prudent business man who stood to commit a serious breach
of contract in the event of the failure of the ship to reach
Tacoma and load and sail during that month.

Again the lay days under the charter-party began on
February 10 and ended on March 10. In other words the
Indien under the charter was not bound to complete loading
at Tacoma until March 10.

Upon this state of facts it cannot be held that in the agree-
ment for charter of the Indien the defendant used that dili-
gence to which it was reasonably bound by the provisions of
the contract. Nor does the proof show that the hidien
suffered any accident. The utmost alleged is that she was
detained in Buenos Aires for repairs.

The defendants learned about January 25 that the Indien
could not load and sail in February, and immediately
arranged for shipment of the flour by the Harpagus. It is
in proof that this ship was the only tonnage for February
that could be secured ; that defendants were assured that she
would be at Tacoma ready for loading not later than Feb-
ruary 25 ; that she actually arrived at the U. S. Navy Yard
at Bremmerton, near Seattle, on February 15 ; that she was
loaded with coal for the U. S. Government, but was unable to
discharge her load and reach Tacoma until February 29.
The proofs do not show affirmatively that the Harpagus was
unduly delayed in discharging her coal at the Naval Station,
but it is fair to assume that the consumption of nearly two
weeks in that work was an unreasonable time. It is shown
that defendant and agents were active in their efforts to
secure her presence at Tacoma not later than the expected
date, February 25. It is shown that the entire quantity of
flour for said consignment was on the dock ready for load-
ing on February 21 in anticipation of the arrival of the
Harpagus.

The Court finds that defendant exercised due diligence
in respect to the chartering of the Harpagus. The de-
fendant's imprudent reliance on the uncertain conditions
of the Indien charter had brought it into the unfortunate

302 I EXTRATERRITORIAL CASES.

position of being compelled to rely on the Harpagus alone.
It is hardly necessary for the Court to make any formal
finding that the movements of the chartered ships, before
reporting under their charter, are not subject to the physical
control of the shippers since that is an obvious fact.

Can the defendants be excused for this breach of contract
for any of the causes recited in the excepted clause? It is
not alleged that there were any strikes which interfered
with the sailing. Nor does the proof show that there were
any accidents which prevented the sailing. If the defend-
ants are to be excused it must be by reason of "other delays
unavoidable or beyond their control." The words "strikes"
and "accidents" are definite and specific. The words "or
other delays unavoidable or beyond our control" are general
and comprehensive and require construction in the light of
the facts of the paiticulair case. Inasmuch as they are
introduced by the defendant and intended for its benefit
they must be construed strictly and favorably to the other
party.-

On the facts found in this case no consideration can be
shown to the defendants by reason of the charter of the
Indien. It is apparent that the proximate cause of the
position in which the defendant found itself near the end
of January, 1912, was due to a lack of exercise of due dili-
gence in providing for the certain shipment in February as
stipulated in the contract. Failure in this respect imposed
upon it a dangerous risk as was demonstrated by subse-
quent events. With this state of facts the vital question is
raised whether the diligence shown in securing the Harpagus
put the defendants in a position such as would enable them
to claim benefit because the delay of the Harpagus was
beyond their control.

We think that this question must be answered in the
negative. From date of contract to last date for shipment
defendants had more than four months, which should
certainly be regarded as ample time within which to make
all provisions therefor.

= Orient Mut. Ins. Co. v. Wright, 1 Wall. 456, 17 L. ed. 505; Gar-
rison V. U. S., 7 Wall. 688, 19 L. ed. 277; Noonan v. Bradley, 9 Wall.
394, 19 L. ed. 757.

DIEDERICHSEN & CO. V. CONNELL BROS., JUNE 9, 1913. 303

It cannot be allowed to fritter away more than half of
that time in ineffective negotiations and yet plead success-
fully that delays occurring subsequently were unavoidable
and beyond its control.

For the construction of the excepting clause of the con-
tract the plaintiff has invoked the doctrine of ejusdem
generis. This doctrine, or rule of construction, may be
defined as follows:

"When the particular dangers or risks against which a party has
specifically guarded himself in a contract are followed by more gen-
eral and comjprehensive words of exception, the latter are to be con-
strued to embrace only occurrences ejusdevi generis with those
previously enumerated, unless there is a clear intent to the contrary."

The particular risks specified in the excepting clause are
"strikes" and "accidents." The general words following
are "other delays unavoidable or beyond our control." Un-
der the rule invoked the exemption provided for would
apply only to accidents and strikes. Counsel for the plain-
tiff has cited numerous English cases in which this doctrine
has been recognized and applied.^

It is also a recognized American doctrine.*

"If general words in a statute follow an enumeration of particular
cases they are held to only cover cases of the same kind as those ex-
pressly mentioned." ^

There are numerous other American cases which while
they do not specifically cite this doctrine as the basis of
decision recognize the principle upon which it is founded
— viz., that general words of exception in a charter party
or bill of lading must be construed with great strictness.^

It is but fair to say that the rule does not seem to have
had as wide a recognition in American Courts as in England.
But this Court is satisfied that it is founded on sound reason
and should be accepted and applied.

=" Richardsons v. M. Samuel & Co., L.R. 1 Queen's Bench [1898] 261;
The Rookwood, 10 L.T.R. 314; The Village Belle, 30 L.T. 232; Grant
V. Todd, L.R., 9 Appeal Cases, 470; Fenwick v. Schmalz, L.R. 3
C.P., 313; Carver's Carriage by Sea, sec. 258-a.

* Hutchinson, Carriers, sec. 465.

' U. S. v. Irwin, 26 Fed. Cas. 546.

"Sorenson v. Keyser, 52 Fed. 163; Texas etc. R. Co. v. Reis, 183
U. S. 621, 46 L. ed. 358; The India, 49 Fed. Rep. 76.

304 I EXTRATERRITORIAL CASES.

On the preliminary question "Does the failure of the
defendants to make shipment during the month of Feb-
ruary, upon the state of facts shown in this record, come
within the provision of the exemption clause in the con-
tract?" the Court holds that it does not.

Subsequently the following order was made on a motion for
rehearing:

The motion in this case is made upon the ground of newly dis-
covered evidence. The evidence offered tends to show that the de-
fendant company, either thru itself or its duly authorized agents,
exercised due diligence in attempting to secure a charter party to
ship the goods within the time prescribed by the contract. Affidavits
containing statements of this character are offered from four wit-
nesses and are covered by an affidavit of the Vice President of the
defendant company, who is also the General Manager of the defend-
ant company, who is also the General Manager of the defendant's
business in the Orient, stating that affiant resides in Shanghai, has
not been in Seattle where the shipment was to take place and whei'e
arrangements therefor were made, since the date of said contract,
and had no opportunity to see or converse with any of the persons or
witnesses familiar with the facts of this case and that the alleged
newly discovered evidence came to the knowledge of the affiant
after the decision.

It seems clear to the Court that the motion submitted does not in
form and substance conform to the familiar rules which govern mo-
tions for a new trial.

It is not sufficient for one of the defendants or one of the repre-
sentatives of the defendant to state that he has not seen any of
the present affiants or had opportunity to converse with them since
the making of the contract in controversy. It is not shown that by
the exercise of reasonable diligence evidence of the parties named
and of the character tendered could not have been obtained and sub-
mitted at the regular hearing. The granting of a new trial for
newly discovered evidence is within the Court's discretion but where
the record does not disclose affirmatively that due diligence has been
exercised it is an abuse of discretion to grant a new trial.

In this case by agreement of counsel a preliminary issue was agreed
upon, upon which evidence was taken and argument submitted and
upon which judgment was rendered and respecting which rehearing
is now sought. The said judgment was not a final judgment in said
cause and for this reason the Court would be more inclined to grant
a motion of this character reasonably supported than it would be if
the motion related to a rehearing upon the whole case but any liberal
disposition of the Court in that direction is not only met by objection
to the form of the motion but by the fact that in the opinion announc-

UNITED STATES V. GRIMES, MAR. 9, 1914. 305

Ing the judgment referred to the Court sustained and applied the
doctrine of ejusdem generis, under which doctrine, if correctly applied
to this case, the alleged newly discovered evidence is immaterial
to this issue. Under these circumstances the motion for rehearing
must be denied.

The judgment was affirmed by the Court of Appeals. See post,
p. 333.

IN THE UNITED STATES COURT FOR CHINA.
United States v. Peter A. Grimes.

[Criminal cause No. 87; filed March 9, 1914.]

SYLLABUS
(By the Court)

1. FORGERY: Acts of Congress penalizing, applied.

2. Id. : The Minimum Penalty will not ordinarily be imposed for a

second offense of the same character.

William S. Fleming, Esq., Special U. S. Atty., for the
prosecution.
Stirling Fessenden, Esq., for the defendant.

LOBINGIER, J.:

The accused pleads guilty to an information charging him
with forgery of a check for fifty dollars, Mexican currency.
This offense was one at Common Law ^ and is also defined
and penalized by the acts of Congress relating to the Dis-
trict of Columbia - and Alaska ^ which under the decisions
of the Court of Appeals * and of this Court ^ are applicable
here. There is accordingly no question as to our jurisdic-
tion and the procedure is settled by the decision of the
Supreme Court.*' The plea of guilty, therefore, leaves only
the penalty to be considered.

Counsel for the accused asks for the minimum punish-

'Cyc. XIX, 1370.

'31 U. S. Stats, at Large, sess. II, Ch. 854, sec. 843.

• 30 U. S. Stats, at Large, sess. Ill, Ch. 429, Tit. I, sec. 76.

* Biddle v. U. S., ante, p. 120.

" U. S. V. Grimsinger, ante, p. 284.
' In re Ross, ante, p. 40.

14008 O. W. 20

306 I EXTRATERRITORIAL CASES.

ment because his client has pleaded guilty and by reason
also of the comparatively small amount realized from the
forged check. These are considerations which would or-
dinarily have weight and, in the absence of countervailing
circumstances, might justify the leniency sought.

It appears, however, from a showing made by counsel for
the government upon the prisoner's first appearance for
sentence, and admitted by the latter, that so late as August
10th last he was discharged from San Quentin Prison, Cal-
ifornia, after serving a sentence of one year for this iden-
tical offense under the name of John H. Rogers. As the
crime to which he now pleads guilty was, according to the
information, committed on December 6, it will be seen that
he was repeating his former offense within four months
of his discharge. Moreover it even appears from the re-
cords of the Consular Court that the accused has been there
convicted of, and has already served sentences of two and
four weeks respectively for, somewhat similar offenses (ob-
taining money under false pretenses) the first committed
as early as October 4, 1913, and the second on December 9.
Leaving out of account the fact that another information
charging forgery on December 8 is pending against the
accused, and bj^ agreement of both counsel has been allowed
to stand over (tho this it seems may properly be considered
in fixing the penalty '), it sufficiently appears from the ad-
mitted facts already reviewed that he is not only no novice
in crime but that a penalty such as is now suggested has
little or no deterrent effect upon him.

Now the deterrent effect of punishment is the element
which should be most controlling in determining its duration
and severity. As expressed by the father of modern pe-
nology, Beccaria, "The end of punishment is nothing else
than to prevent the repetition of crime." The present day
theory of penalties, in other words, is preventive and not
vindictive ; but a penalty which leaves so little impression
upon the offender that he repeats the offense within a few
weeks cannot accurately be termed "preventive."

' State V. Wise, 32 Oreg., 280, Pac, 800.

UNITED STATES V. GRIMES, MAR. 9, 1914. 307

Indeed the fact that the accused is a second offender at
all would seem to deprive him of the benefits of the minimum
penalty. In the Codes of Civil Law countries * that is an
aggravating circumstance which automatically raises the
penalty and in Anglo-American jurisdictions it is an element
to be considered in exercising the court's discretion. As
was well said by Chief Justice Clark:

"Such matters ought justly and properly to be considered, as well
as, on the other hand, a defendant's previous good character, in light-
ening the sentence to be imposed. In England and some of the
states of this country there is an Habitual Criminals Act, which re-
quires heavier sentences for such offenders." ''

The minimum penalty provided for this offense by both
of the codes above cited is imprisonment for one year but
the maximum in the first is twenty years and ten in the
second. And while in the view of a former judge of this
Court these periods are not controlling ^" we are of the
opinion, in the light of all the circumstances, that a term
of three years would be the least that would serve to deter
the accused or to afford a warning to others of like tenden-
cies.

It has been suggested that the accused may be suffering
from some form of criminal mania; but clearly this does
not lessen the necessity of incarceration tho it may require
a special method of treatment during the period thereof
and this is meanwhile recommended to the consideration
of the prison authorities.

The defendant is accordingly sentenced to imprisonment
for a term of three years to be served in the prison for
American convicts in China at Shanghai, until provision
is made by the government for his transfer to some prison
elsewhere; and it is directed that during the whole of said
term he be employed at some useful labor. He is further
adjudged to pay the costs of this prosecution.

^E.g., Spanish Penal Code, art. 10 (17, 18).

* State V. Wilson, 121 N. C, 650, 28 S. E. Rep., 417, citing Whart.
Cr. PI. (9th ed.), 934; 1 McClain, Cr. Law, 28; Moore v. Missouri,
159 U. S., 673, 16 Sup. Ct., 179.

^^ U. S. V. Grimsinger, ante, p. 285.

308 I EXTRATERRITORIAL CASES.

IN THE UNITED STATES COURT FOR CHINA.
United States v. John T. Allen.

[Criminal cause No. 89; filed April 18, 1914.]

SYLLABUS.
(By the Court.)

1. EXTRATERRITORIALITY: OBLIGATIONS: "IMPROPER ACT." In con-

sideration of the suri'ender by China of criminal jurisdiction
over Americans in the latter's territory the United States gov-
ernment has undertaken to punish according to its own laws
any "improper act" committed in China.

2. Id.: Id.: Id.: The Sale of Intoxicating Liquors without a license

or other authority is an "improper act * * * according to
the laws of the United States."

3. Id.: What Laws Extend. Such of the acts of Congress, regard-

less of their original application, as are "necessary" and "suit-
able" to carry into effect such undertaking, have extraterritorial
force in China.

4. Id. : Criminal Procedure. Those sections of the Act of Congress

of March 3, 1899 (relating to crimes and criminal procedure
in Alaska), which penalize and provide for prosecuting the un-
licensed sale of intoxicating liquors are "suitable" for executing
our treaty obligations with China.

5. Id. : Id. : A Demurrer which meets the requirements of sec. 90 of

said act is sufficient in form.

F. E. Hinckley, Esq., U. S. Dist. Atty., for the prosecution.
Messrs. Flemmg & Davies, by Mr. W. S. Fleming, for the
defense.

LOBINGIER, /. ;

The defendant demurs to an information charging that he

"from or from about May 1, 1913 to or to about January 15, 1914,
in a building situate on North Szechuen Road Extension at said
Shanghai, China and without the boundaries of the foreign munic-
ipalities at said Shanghai, said building being known as the Oregon
Bar and being open to the public, offered for sale, and sold, intox-
icating liquors to the public frequenting said Oregon Bar without
license so to offer for sale and to sell said liquors; against the treaties
between the United States and China and against the laws of the
United States in force on June 30, 1906, in reference to American
Consular Courts in China and thereunder particularly against the
Act of Congress of March 4, 1913, Sixty-second Congress, Session III,
Chapter 150, Section 9, Paragraph 12, 37 Statutes at Large, 938, 997,
1002 (District of Columbia Laws) and against the Act of Congress

UNITED STATES V. ALLEN, APRIL 18, 1914. 309

of March 3, 1899, Fifty-third Congress, Session III, Chapter 429, Title
II, Section 472, 30 Statutes at Large, 1253, 1340 (Alaska Penal
Code)."

The principal question raised is whether said statutes,
or any other, penalizing the act charged, are in force in
this extraterritorial jurisdiction. For it seems to be well
settled that such an act was not an offense at common law
and became such only by statute.^ The question involves
a scrutiny of the entire criminal jurisdiction of this court
and a review of the sources thereof.

II.

The Act of June 30, 1906, establishing this court con-
ferred upon it,

But such jurisdiction, both criminal and civil, had then
been accumulating for nearly two thirds of a century. By
the original (Gushing) treaty of 1844 "between the United
States and China" the former reserved, and the latter sur-
rendered, all criminal jurisdiction over the former's na-
tionals by providing that:

"citizens of the United States who may commit any ,crime in China
shall be subject to be tried and punished only by the Consul, or other
public functionary of the United States, thereto authorized, accord-
ing to the laws of the United States." *

The second treaty (1858) contained the following pro-
vision :

"citizens of the United States, either on shore or in any merchant
vessel, who may insult, trouble or wound the persons or injure the
property of Chinese, or commit any other improper act in China, shall
be punished only by the Consul or other public functionary thereto
authorized, according to the laws of the United States." *

' "Offenses against the liquor laws, * * * ^j.g statutory crimes,
not being indictable or punishable at common law." 23 Cyc, 172,
citing numerous cases. Cf. Bishop's New Criminal Law, I, sec. 505.

■ 34 U. S. Stats, at Large, Pt. I, 814, sec. 1.

'Article XXI; Malloy, Treaties, etc., I, 202. This and all sub-
sequent treaties were expressly renewed by that of Oct. 8, 1903,
Article XVII, ante, pp. 1, 3.

^Art. XI; Malloy, Treaties, etc., I (215), ante, pp. 2, 3.

310 I EXTRATERRITORIAL CASES.

This would seem to extend the jurisdiction. For while
the first included "any crime," the second embraces "any
other improper act" and the latter phrase appears broad
enough to cover Ttialum prohibitum as well as malum in se."

III.

Having reserved or acquired this extensive jurisdiction
the American government proceeded seasonably to provide
means for its exercise. In 1848 Congress passed an Act "^
extending the

"laws of the United States * * * over all citizens of the United

States in China (and over all others to the extent that the treaties

justify or require) so far as such laws are suitable to carry such
treaty into effect."

Again in 1860 a more elaborate act " was passed

"to carry into full effect provisions of the treaties between the
United States, China, Japan, Siain, Persia and other countries, giving
certain judicial powers" etc.

in which the foregoing language was almost literally re-
peated.''

^ Blackstone's illustrations of this distinction are as follows:

"Thus, by the statutes for preserving the game, a penalty is de-
nounced against every unqualified person that kills a hare, and
against every person who possesses a partridge in August. And so,
too, by other statutes, pecuniary penalties are inflicted for exercising
trades without serving an apprenticeship thereto, for not burying the
dead in woollen, for not performing the statute-work on the public
roads, and for innumerable other positive misdemeanors. Now these
prohibitory laws do not make the transgression a moral offense, or
sin ; the only obligation in conscience is to submit to the penalty, if
levied. It must, however, be observed that we are here speaking of
laws that are simply and purely penal, where the thing forbidden or
enjoined is wholly a matter of indifference, and where the penalty
inflicted is an adequate compensation for the civil inconvenience sup-
posed to arise from the offense. But where disobedience to the law
involves in it also any degree of public mischief or private injury,
there it falls within our former distinction, and is also an offense
against conscience." Comm. I, 58. Under present day theories of
legislation it would seem that the unlicensed sale of liquors belongs
quite as much in the second category as in the first.

*Act of Congress of Aug. 11, 1848, 9 U. S. Stats, at Large, 276,
sec. 4.

' Act of Congress of June 22, 1860, 12 U. S. Stats, at Large, p. 72.

'Id., sec. 4; Rev. Stats., sec. 4086.

UNITED STATES V. ALLEN, APRIL 18, 1914. 311

What are "the laws of the United States" referred to so
frequently in these quotations and which by the terms of
the last are "extended over all citizens of the United States"
in China? Not the treaties for they are mentioned separ-
ately ; hardly the Constitution for it has been declared '■* to
have no extraterritorial operation; necessarily therefore
the Acts of Congress then or subsequently in force. And
their extension results quite independently of the original
purpose of the acts themselves. Thus Congress may enact a
law for a limited area under its exclusive jurisdiction, such
as Alaska or the District of Columbia ; by its terms it may
have no force whatever outside of such area; but if it is
"necessary to execute such treaties" (with China) and
"suitable to carry the same into effect" it becomes operative
here by virtue of the acts above cited. Such we under-
stand to be the doctrine announced by the Court of Appeals
in a leading case.'"

IV.

Our inquiries, then, are narrowed to ascertaining (1)
whether, in order to "execute" our treaties with China it
is "necessary" to regulate the liquor traffic on the part of
American citizens residing here; and (2) whether Congress
has enacted a "suitable" law anywhere which would effect
such regulation.

As to the first inquiry it must be borne in mind that our
government has, by that clause of the treaty of 1858, still
in force, solemnly undertaken to prevent or punish "any
other improper act" under its own laws. Is the unauthor-
ized sale of intoxicating liquors such an act? To this ques-
tion an almost unbroken current of American legislation,
state and national, affords an affirmative answer. It is
conceded by defendant's counsel that every state in the
Union has some form of regulation for such traffic; that
in none of them may a citizen engage therein without some
authority. Indeed, nine of our states absolutely prohibit
the traffic and in eighteen more it has been "voted out" of
territory containing a majority of the inhabitants.^^

'In re Ross, ante, p. 50.

" Biddle v. United States, ante, p. 120.

'See The Outlook, Vol. 106, p. 566.

312 I EXTRATERRITORIAL CASES.

The sphere of the Federal government is necessarily more
limited in this field but Congress has, nevertheless, legiS'
lated upon the subject long and extensively. Thus, to
mention some sporadic instances, Congress undertook the
regulation of the liquor traffic in the District of Columbia
almost from the beginning of its history. The act in-
corporating the city of Washington in 1802 expressly em-
powered it "to provide for licensing and regulating retailers
of liquors." ^^ Two years later the city council was author-
ized "to restrain or prohibit tippling houses,"'^ and the
traffic was long regulated by said council and its successors.
In 1861 Congress forbade, under penalty of fine or imprison-
ment,

"any person in the District of Columbia to sell, give, or administer
to any soldier or volunteer in the service of the United States, or
any person wearing the uniform of such soldier or volunteer, any
spirituous liquor or intoxicating drink." "

By an act passed in 1866 all sales of intoxicating liquors
within the District "without a license approved by the
Board of Police" were penalized^^ and so, by the act of
1878, were all such sales by druggists and pharmacists
for consumption on the premises.^*' In 1893 Congress
passed a comprehensive "Excise Law" " for the District
containing strict requirements as to license and prohibit-
ing mier alia, sales, "to any person under the age of twenty-
one." ^^ By the act of March 3, 1899, all sales of intoxicating
liquors within the District on Sunday were forbidden, ^^
and in 1913 a still more strict and detailed "Excise law"

"2 U. S. Stats, at Large, p. 197, 7th Congress, Ch. 53, sec. 7.

" Id., p. 255, 8th Congress, Ch. 14, sec. 3.

" 12 U. S. Stats, at Large, p. 291, 37th Congress, 1st Sess., Ch. 44.

''14 U. S. Stats, at Large, p. 213, 39th Congress, 1st Sess., Ch.
215, sec. 3.

" 20 U. S. Stats, at Large, p. 139, 45th Congress, 2nd Sess., sec. 10.

" 27 U. S. Stats, at Large, p. 563, 52nd Congress, 2nd Sess., Ch. 204.

" Id., sec. 19. This was enlarged by the Act of Apr. 28, 1904 (33
U. S. Stats, at Large, Pt. I, Ch. 1815, sec. 2, p. 565), so as to include
the owner and employees as well as the licensee, and further reinforced
by the act of March 2, 1907 (34 U. S. Stats, at Large, Pt. I, p. 1248,
Ch. 2569).

'■'30 U. S. Stats, at Large, p. 1013, Ch. 418.

UNITED STATES V. ALLEN, APRIL 18, 1914. 313

was incorporated into the general appropriation act for the
District. 2°

Alaska, the other Federal territory longest without a
local legislature, and hence under the immediate control of
Congress, was doubtless long considered "Indian country"
within the meaning of legislation presently to be noticed.
But in 1899 Congress passed "an act to define and punish
crimes in the District of Alaska and to provide a code of
criminal procedure for said District" ^^ in which ample pro-
vision is made for regulating the liquor traffic and penaliz-
ing its conduct without a license.^-

Nor has congressional action been confined to mere re-
striction for, besides the instance above noted, there have
been several clearly defined spheres of prohibitory legisla-
tion by Congress. As early as 1834 it was declared a penal
offense

"if any person shall introduce, or attempt to introduce, any spirituous
liquor or wine into the Indian country," "

then a very extensive area.^* Vast states have been carved
therefrom but in those portions of said states which are
still "Indian country" this legislation remains in force -^ and
it has the effect of absolutely prohibiting the liquor traffic

^ 37 U. S. Stats, at Large, Pt. I, Ch. 150, pp. 997 et seq.

'' 30 U. S. Stats, at Large, Sess. Ill, Ch. 429, p. 1253.

" Id., Tit. II, sees. 462-478. These are now sees. 2571-2587 of the
"Compiled Laws of Alaska" (1913).

=' 4 U. S. Stats, at Large, p. 732, 23d Cong., Sess. I, Ch. 161, sec.
20. This has been supplemented and strengthened by numerous later
acts, e. g., those of 1864 (13 U. S. Stats, at Large, 29, Ch. 33), 1877
(19 Id., 244 ), 1884 (23 Id., 94), 1892 (27 Id., 260, Ch. 234), and 1897
(29 Id., 506, Ch. 109. Cf. act of 1894, 28 Id., 286, 318), construed in
Perrin v. United States, 232 U. S., 478, 58 L. ed., 691, and Pronovost v.
United States, 232 U. S., 487, 58 L. ed., 696.

^* To wit "all that part of the United States west of the Mississippi,
and not within the states of Missouri and Louisiana, or the territory
of Arkansas, and, also, that part of the United States east of the
Mississippi river, and not within any state to which the Indian title
has not been extinguished." 4 U. S. Stats, at Large, p. 729, 23d
Cong., Sess. I, Ch. 161, preamble.

''United States v. Wright, 229 U. S., 226, 237, 57 L. ed., 1160;
Hallowell v. United States, 221 U. S., 317, 55 L. ed., 750; United
States V. Lariviere, 93 U. S., 188, L. ed., 846.

314 I EXTRATERRITORIAL CASES.

from all Indian reservations.-'' In full accord with the
spirit of this legislation is the act of 1902 which provides
that any American national who shall supply opium or
liquors

"to any aboriginal native of any of the Pacific islands lying within
the twentieth parallel of north latitude and the fortieth parallel of
south latitude and the one hundred and twentieth meridian of longi-
tude west and one hundred and twentieth meridian of longitude
east of Greenwich, not being in the possession or under the pro-
tection of any civilized power, shall be punishable by imprisonment
not exceeding three months, with or without hard labor, or a fine
not exceeding fifty dollars, or both." "'

In 1862 Congress enacted that

"no distilled spirituous liquors shall be admitted on board of vessels-
of-war except as medical stores." '*

In 1890 the sale of liquors at army posts in prohibition
states was forbidden -■' and the next year licenses for such
sale within one mile of a soldiers' home were inhibited.^"
In 1899 this policy was extended to all "premises used for
military purposes by the United States," •'' and two years
later the sale of liquors on government transports was
prohibited. ■- In 1903 ■' and again in 1907 ^* acts were
passed forbidding such sales at all immigrant stations. In
the former year they were prohibited "within the limits
of the capitol building" ^'' and in the latter year

"at any point between the Government Hospital for the Insane and
the Home for the Aged and Infirm, or within a radius of one-half
mile of the boundaries of either of the said properties." ""

=" Clairmont v. United States, 225 U. S., 551, 56 L. ed., 1201.

" 32 U. S. Stats, at Large, Pt. I, Ch. 18, p. 33.

" 12 U. S. Stats, at Large, Ch. 164, p. 565, sec. 4.

^ 26 U. S. Stats, at Large, 154, 51st Cong., Sess. I, Ch. 423.

'^ Id., 797, Sess. II, Ch. 385.

" 30 U. S. Stats, at Large, 981, 54th Cong., Sess. II, Ch. 352, sec. 17.

'' 31 U. S. Stats, at Large, 758, 56th Cong., Sess. II, Ch. 192, sec. 38.

"' 32 U. S. Stats, at Large, Pt. I, Ch. 1012, sec. 30, p. 1220.

**34 U. S. Stats, at Large, Pt. I, p. 907, 59th Cong., Sess. II,
Ch. 1134, sec. 30.

"32 U. S. Stats, at Large, p. 1221; 57th Cong., Sess. II, Pt. I, Ch.
1012, sec. 34.

'' 34 U. S. Stats, at Large, p. 870 ; 59th Cong., Sess. II, Pt. I, Ch.
441.

UNITED STATES V. ALLEN, APRIL 18, 1914. 315

But not only has Congress forbidden the sale of liquors
in federal territory, property and institutions; it has like-
wise cooperated directly with the states which have adopted
prohibitory laws. Thus, in order to nullify the so-called
"original package" decision ■''' it was enacted in 1890 that
liquors, however transported, should be subject to such
laws ^^ and in 1913, over the Presidential veto, an act was
passed absolutely forbidding all transportation of liquors
intended for use in violation of any local statute."'-'

It will be seen, therefore, that in no place under the
exclusive control of Congress is the unlicensed sale of in-
toxicating liquors a lawful, and a much less "proper" act.
Would it not then be a reproach to America, if, having
received from China the surrender of all criminal jurisdic-
tion over Americans residing here, upon the solemn promise
to prevent or punish any act "improper" under the for-
mer's laws, she were to sanction here what is not permitted
in any part of her own domain?

Counsel for defendant, in a very fair and complete pres-
entation of his views, admits in effect that the act charged
is improper but contends that it may be reached by a
prosecution for a nuisance and that it is therefore not
"necessary" (to use the treaty term) to treat as in force
here the statutory crime of selling liquors without a license.
But we have been unable to find any case where such sale
alone was held to constitute an indictable nuisance. That
seems to have resulted only where the sale was actually in
violation of a statute •*" or produced some other o.Tensive
acts, like disturbances or breaches of public morals or de-
cency.^^ Besides it would be in open disregard of the legis-
lative intent to treat as sufficient here a prosecution for a
common law offense when Congress has every where else

^ Leisy v. Hardin, 135 U. S., 100, 34 L. ed., 128.

''26 U. S. Stats, at Large, p. 313, 51st Cong., Sess. I, Ch. 728,
upheld by In re Rahrer, 140 U. S., 545, 35 L. ed., 572.

'" 37 U. S. Stats, at Large, p. 699, 62nd Cong., Sess. Ill, Pt. I, Ch.
90. An interesting discussion supporting this act is found in I
California Law Rev., 499 (by Mr. Lindsay Rogers).

'" Bishop's New Criminal Law, I, sees. 505, 1119.

" Id., sec. 1113. Cf. Consul General Jernigan's decision in a pre-
■ decessor of this Court, June 19, 1895.

316 I EXTRATERRITORIAL CASES.

provided a statutory one. Under the treaty of 1858, as we
have seen, our government has undertaken to punish the
"improper act * * * according to the laws of the United
States," i. e., the acts of Congress. To refuse punishment
except where the "improper act" is also a common law crime
would constitute a breach of this undertaking as well as a
failure to meet the demands of the situation.

We must conclude, therefore, that so much of those "laws
of the United States" as make it a crime to sell intoxicating
liqiiors without a license are "necessary to execute such
treaties" (with China). Are any of them "suitable to
carry the same into effect?" Those sections of the Alaskan
Act of Congress above mentioned which define the ofFense,*^
provide the procedure *^ and fix the penalty " certainly seem
suitable. Counsel's contention that no machinery is pro-
vided for enforcing said act here must relate, if at all, not
to prosecutions for the offense but to the means of com-
mitting the act with impunity — i. e., by obtaining a license.
We are not at all sure that the system of licensing there
provided would not be quite workable here. Some adap-
tations to local conditions would doubtless be necessary;
this court, e. g., would need to be substituted for the "Dis-
trict Court." But such minor modifications would seem
to be authorized by the provision for applying these laws
"so far as they are suitable."

In any event, however, the inapplicability of the licensing
feature would hardly invalidate the penal provisions of the
act for the absence of such feature merely makes the law
prohibitory and this, as we have seen, is no more than much
congressional legislation avowedly is.

Much of the foregoing applies to the further objection
that the conclusion we have reached would require also the
enforcement of those provisions of the same act " which
require the licensing of occupations and lines of business.
Clearly these are not "necessary to execute such treaties."
They are mere revenue regulations to supply the Alaskan

*^Z0 U. S. Stats, at Large, p. 1337; 55th Cong., Bess. Ill, Ch. 429,
Tit. II, sec. 462.
'' Id., sec. 474.
" Id., sees. 472, 473.
''Id., sec. 461.

CAVANAGH V. WORDEN, APRIL 18, 1914. 317

territorial treasury and have no place in the legal system
needed here.

We see no defect in the form of the demurrer. It meets
the requirements ^* of the act just referred to and seems
fully to raise the question here discussed. But tho sufficient
in form we find the demurrer unfounded in substance for
the reasons above set forth and it is accordingly

OVERRULED.

IN THE UNITED STATES COURT FOR CHINA.

Tahmi H. Cavanagh, Plaintiff, v. Salter D. Worden,

Defendant.

[Civil action No. 131; filed April 18, 1914.]

SYLLABUS.
(By the Court.)

1. MARRIAGE: ANNULMENT: JURISDICTION. This Court's jurisdiction

to annul a marriage for duress derives from several distinct
sources:

(a) Various treaties with China reserving such jurisdiction
in general terms;

(6) Various acts of Congress expressly conferring it;

(c) Inherent chancery powers, which this court is given a
residual and suppletory authority to exercise, including certain
jurisdiction reverting from the ecclesiastical courts of England.

2. Id. : Id. : Grounds. In legal contemplation marriage is a civil con-

tract requiring the same essentials and subject to annulment
for the same infirmities as ordinary contracts.

Joseph W. Rice, Esq., for plaintiff.
Cecil R. Holcomb, Esq., for defendant.

Lobingier, J.:

This is a bill for the annulment of a marriage between
plaintiff and defendant which the former claims took place
thru duress and without her consent or subsequent rati-
fication. The defendant demurs on the ground

"that this Court has no jurisdiction to hear and determine said suit."
The question presented therefore is a fundamental one and
calls for a review of the sources of our civil jurisdiction.
This court, as we have had occasion to point out in a

*• Id., sec. 90.

318 I EXTRATERRITORIAL CASES.

recent case,' has fallen heir to all jurisdiction formerly
"exercised by United States Consuls and ministers by law
and virtue of treaties between the United States and Chi-
na."- The ultimate source of that jurisdiction is the treaty
of 1844 which contained the following clause:

"All questions in regard to rights, whether of property or person,
arising between citizens of the United States in China, shall be
subject to the jurisdiction of, and regulated by the authorities of
their own Government. And all controversies occurring in China be-
tween citizens of the United States and the subjects of any other
Government shall be regnilated by the treaties existing between the
United States and such Government, respectively, without interfer-
ence on the part of China.'

In the treaty of 1858 this clause was, in substance, re-
peated,' and it would seem clear that the right here claimed
is "one of property or person" is "subject to the jurisdiction"
and should be "regulated by the authorities of" the United
States government. For the plaintiff alleges that "she is
of British nationality and that the defendant is a citizen
of the United States." The defendant, therefore, is not
in a position to challenge jurisdiction upon national grounds
and the plaintiff herself has invoked jurisdiction. More-
over, it may well be questioned whether, thru the marriage
now assailed, at least until its formal dissolution, she is
not also an American citizen.'^

II.

The foregoing would seem sufficient to confer jurisdiction
in general terms. But we are not limited to these; for the
Federal government actually has "regulated" (to use the
language of the treaty) the "right" here sought to be en-
forced, to wit: the annulment of a marriage. Within less

' U. S. V. Allen, ante, p. 309.

' 34 U. S. Stats, at Large, Pt. I, 814, sec. 1.

'Art. XXV; 8 U. S. Stats, at Large, 592, Malloy, Treaties, etc.,
I, 203, ante, p. 2.

^Art. XVII; Id.

" "Any woman who is now or may hereafter be married to a citizen
of the United States, and who might herself be lawfully naturalized,
shall be deemed a citizen." U. S. Rev. Stats., sec. 1994. Cf. Kelly v.
Owen, 7 Wall., 496, 19 L. ed., 283; Leonard v. Grant, 6 Sawyer, 603,
5 Fed.. 11.

CAVANAGH V. WORDEN, APRIL 18, 1914. 319-

than four years after the ratification of the treaty first above
mentioned Congress passed an act which invested the Com-
missioner and consuls of the United States "in regard to civil
rights whether of property or person * * * with aiZ ju-
dicial authority necessary to execute the provisions of said
treaty * ^= * ^^^^ shall entertain jurisdiction in mat-
ters of contract * * * which jurisdiction shall em-
brace all controversies between citizens of the United States,
or others, provided for by said treaty." "

It will be seen that this language is very comprehensive,
embracing "civil rights, whether of property or person
* * * matters of contract" and "all controversies
between citizens of the United States and others", and this
would seem clearly to include the relief here sought. "It
is now commonly accepted doctrine that marriage is a civil
contract".^

But the statutory provision above quoted is not the only
one which provides jurisdiction in such cases. The suc-
ceeding section of the same act reads in part as follows :

"Such jurisdiction in criminal and civil matters shall, in all cases,
be exercised and enforced in conformity with the laws of the United
States, which are hereby, so far as is necessary to execute said treaty,
extended over all citizens of the United States in China (and over
all others to the extent that the terms of the treaties, respectively,
justify or require) so far as such laws are suitable to carry said
treaty into effect." *

The phrase "laws of the United States" as used here and
elsewhere means, as we have had occasion to observe, in a

" Act of Cong-ress of Aug. 11, 1848, 9 U. S. Stats, at Large, p. 276,
13th Cong., Sess. I, Ch. 150, sec. 3.

^ 26 Cyc, 825, 826, Note 3. "Marriage is everywhere regarded as
a civil contract." Strong, J., in Moister v. Moore, 96 U. S., 76, 24 L.
ed., 826. See also Mathewson v. Iron Foundry, 20 Fed., 281.
"Marriage is considered by our law as a civil contract; and in this
agreement, as in all others, the free consent of the parties is essential
to the validity of the contract." Sanford, Chancellor, in Ferlat v.
Gojon, 1 Hopk., Ch. 478, 14 Am. Dec, 554. "Marriage is a contract,
and requires the consensus anhnoritin as much as any other contract.
It was considered exclusively a civil contract throughout all Chris-
tendom until the time of Pope Innocent III." Redfield, J., in Mount
Holly V. Andover, 11 Vt., 226, 34 Am., Dec, 685.

'9 U. S. Stats, at Large, 276, Ch. 150, sec. 4; reenacted, 12 Id., p.
73, sec. 4; U. S. Rev. Stats., sec. 4086.

320 I EXTRATERRITORIAL CASES.

recent case," principally the acts of Congress. Hence if
any such act "is necessary to execute such treaties" it is
extended here so far as "suitable to carry the same into
effect".

Now while it is not ordinarily within the province of
Congress to legislate on the subject of marriage, it has
nevertheless done so in numerous instances ; in 1860 author-
izing the solemnization of marriages by consular officers and
declaring such marriages valid if they would have been so
in the District of Columbia ;^" in 1865, declaring what should
be sufficient proof of marriage of colored soldiers;" and in
1873 adding a similar declaration as regards Indian sol-
diers.^-

In providing for a federal district to contain the seat of
government it was enacted as long ago as 1790

"That the operation of the laws of the state within such district
shall not be affected by this acceptance, until the time fixed for the
removal of the government thereto, and until Congress shall otherwise
by law provide." "

At first the said district included territory from the two
States of Maryland and Virginia, but the portion taken
from the latter having afterward been retroceded, the laws
of Maryland were expressly continued.^^ Among these, of
course, are the laws respecting marriage and at the time
of the enactment last quoted, a statute was in force in Ma-
ryland, and therefore extended over the District, providing
for the annulment of marriages upon various grounds, among
others

"any marriage the consent to which of either party has been procured
by force or fraud." "

° U. S. V. Allen, ante, p. 308.

" 12 U. S. Stats, at Large, p. 79, 36th Cong., Sess. I, Ch. 179, sec.
31 ; Rev. Stats., sec. 4082. Cf. the act of 1873 requiring marriages on
shipboard to be reported by the master. 17 U. S. Stats, at Large,
p. 275, 42nd Cong., Sess. II, Ch. 322, sec. 58.

" 13 U. S. Stats, at Large, p. 571, 38th Cong., Sess. II; Rev. Stats.,
sec. 2037.

"17 U. S. Stats, at Large, p. 570, 42nd Cong., Sess. II, Ch. 234,
sec. 11.

" 1 U. S. Stats, at Large, Ch. 28, sec. 1, p. 130.

" Act of Feb. 27, 1801, 2 U. S. Stats, at Large, p. 103, 6th Cong.,
Sess. II, Ch. 15.

''Maryland Act of 1777, sec. 12.

CAVANAGH V. WORDEN, APRIL 18, 1914. 321

Nor was this law recognized merely by extending it in
the manner just mentioned; for in 1901 Congress passed
"an act to establish a code of law for the District of Colum-
bia" in which the same section in the identical language
above quoted was expressly reenacted."'

Again in making "further provision for a civil government
for Alaska" etc., in 1900, Congress once more provided for
the annulment of marriages, in almost the exact language
above quoted,

"when the consent of either party shall be obtained by force or
fraud." "

Now these are explicit acts of Congress covering the
question arising in the case before us ; they "are suitable to
carry into effect" the treaties above referred to; and "so
far as is necessary to execute such treaties" they are in
force here. This is the doctrine recognized by the Court
of Appeals. ^^

III.

But if it were true for any reason that the acts of Congress
above referred to are not applicable to the case at bar, it
seems clearly to be provided for by the following clause of
the act of 1860 :

"In all cases where such laws are not adapted to the object, or
are deficient in the provisions necessary to furnish suitable remedies,
the common law, including equity and admiralty, shall be extended
in like manner over such citizens and others in the said countries." "

In other words this Court is vested with a residual or
suppletory chancery jurisdiction; and in America chancery
has long since taken cognizance of causes like this.

In England, indeed, as in all Christian countries, matri-
monial causes once belonged exclusively to the sphere of

'' 31 U. S. Stats, at Large, p. 1391, 56th Cong., Sess. II, Ch. 854,
sec. 1285. This was further amended in 1902 by providing the ad-
ditional ground of non-age for annulling marriages. 32 U. S. Stats,
at Large, Pt. I, p. 543, 47th Cong., Sess. I, Ch. 1329; District of
Columbia Code (1911), sec. 1285.

"31 U. S. Stats, at Large, p. 408, 56th Cong., Sess. I, Ch. 786,
tit. I, sec. 463; Compiled Laws of Alaska (1913), sec. 1295.

" Biddle v. United States, ante, p. 120.

" 12 U. S. Stats, at Large, p. 73, 36th Cong., Sess. I, Ch. 179, sec. 4.

14008 O. W. 21

322 I EXTRATERRITORIAL CASES.

the ecclesiastical courts -" or as they were sometimes called
"Courts Christian" ^\ But in America no such courts have
ever existed and it was held at an early date that their
jurisdiction "reverted," to use the language of Chancellor
Kent, to the lay tribunals, i. e., those exercising chancery
powers. The entire language used by the eminent author-
ity last mentioned is worthy of repetition here, for it
discloses a situation parallel in some respcts to that which
confronts this court. The learned Chancellor in assuming
jurisdiction said:-^

"The fitness and propriety of a judicial decision, pronouncing the
nullity of such a marriage, is very apparent, and is equally conducive
to good order and decorum, and to the peace and conscience of the
party. The only question, then, is, To what Court does the jurisdic-
tion of such a case belong? There must be a tribunal existing with
us, competent to investigate such a charge, and to afford the requisite
relief; and the power, I apprehend, must reside in this Court, which
has not only an exclusive jurisdiction over cases of lunacy, but over
matrimonial causes. The chancery powers, in case of lunacy, have
never been applied in this case, because there existed in England
another and peculiar jurisdiction for the case; but as such a juris-
diction does not exist here, the case seems to belong, incidentally,
to the more general jurisdiction of this Court over these subjects.
Whatever civil authority existed in the Ecclesiastical Courts, touching
this point, exists in this Court, or it exists nowhere, and all direct
judicial power over the case is extinguished; but that is hardly to be
presumed. For the more full examination of this very interesting
point of jurisdiction, let us suppose the abominable case of a marriage
between parent and child or other persons in the lineal or ascending
and descending line, — is there no Court that can listen to the voice
of nature and reason, and sustain a suit instituted purposely to de-
clare such a marriage void? If a man marry his mother, or his sister,
they are husband and wife, say the old cases, until a divorce, and the
marriage be judicially dissolved." Are the principles of natural law,
and of Christian duty, to be left unheeded, and inoperative, because
we have uo ecclesiastical Courts recognized by law, as specially

20 "Yhe w'nole jurisdiction in questions of marriage was, owing to
the sacramental character ascribed to the ordinance of matrimony,
thruout Christendom a spiritual jurisdiction." Stubbs, Const. Hist,
of England, III, 444.

"Pollock & Maitland, History of the English Law (1895), I, 125
et seq. Cf. Fry, Specific Performance and Laesio Fidei, 5 Law
Quarterly Review, 235.

"Wightman v. Wightman, 4 Johns. Ch., 343 (1820).

*" 39 Edw. Ill, 31, b. 9 Hen. VI, 34. 18 Hen. VI, 32. Bro. tit. Bas-
tardy, pi. 23. 1 Roll. Abr. 340. A. I. 4, 357, A. 3.

CAVANAGH V. WORDEN, APRIL 18, 1914. 323

charged with the cognizance of such matters? All matrimonial, and
other causes of ecclesiastical cognizance, belonged originally to the
temporal Courts,^^ and when the Spiritual Courts cease, the cognizance
of such causes would seem, as of course, to revert back to the lay
tribunals."

The successor of Chancellor Kent in applying a similar
doctrine to a case closely parallel in its facts to that stated
in the bill before us, observed :

"The jurisdiction of this court is that of the English chancery,
with the various additions which have been made to it by our own
laws. This court has jurisdiction in case of fraud, and especially in
all cases of contracts procured by fraud. In such cases this court
effectually annuls the fraudulent contract, adjudges it void, causes
it to be delivered up or cancelled or prohibits the parties from claim-
ing any right under it. Such is the undoubted jurisdiction of this
court in other cases of contracts; and if this court has not the same
jurisdiction where the contract of marriage has been procured by
fraud, it is the only case of a fraudulent contract to which its juris-
diction does not extend. In England, the ecclesiastical courts would
have cognizance of such a question, and would annul the marriage;
but it seems that even in England the court of chancery would also
have jurisdiction of such a case as a fraud. If no instance of this
kind is found, in which the English chancery has acted, it is evidently
because the ecclesiastical courts there have an established jurisdic-
tion, and give a summary remedy in all matrimonial causes. We
have no such courts, and no judicature possessing the general powers
of these courts. The jurisdiction of equity in cases of fraudulent
contracts seems sufficiently comprehensive to include the contract of
marriage, and tho this may be a new application of the power of this
court, I do not perceive that it is an extension of its jurisdiction.
It would be deplorable that in a case of fraud so gross there should
be no adequate remedy." "

These leading decisions would seem also to answer the
contention of defendant's counsel that a statute authorizing
divorce is essential before a court may decree annulment.
There was no such statute in New York at the time and
in fact the same court soon afterward refused to grant
divorces at all.-"

Coming to the later authorities we find the following

^* Vide, the case of Legitimation and Bastardy, Sir J. Davies' Rep.
140, and his argument in the case of Praemunire, ib. 273.

" Per Chancellor Sanford, in Ferlat v. Gojon, 1 Hopkins Chancery,
478, 14 Am. Dec, 554.

''Burtis V. Burtis, 1 Hopkins Ch. 557, 14 Am. Dec. 563.

324 I EXTRATERRITORIAL CASES.

in an exhaustive opinion rendered by Vice Chancellor Pit-
ney of the New Jersey Court of Chancery in a case like
the present:

"The jurisdiction of this court over the subject-matter of this cause
is not based upon, or derived from, the divorce statute. Hence it is
not limited by any of the terms of that statute as to residence, etc.
It is based on the original, inherent, and general jurisdiction of this
court over questions arising out of contracts inter partes, and is ex-
ercised over contracts of marriage in which is found some vice in-
herent in their origin precisely as in cases arising out of ordinary
contract." "

It is true that in some of the American authorities ^^
especially the early ones, a different doctrine is announced.
But this is the minority doctrine. Dr. Bishop,^^ the author
most quoted by defendant's counsel, says:

"for avoiding ordinary contracts, the jurisdiction of equity extends
to all questions of fraud, mistake, duress, and lunacy. Hence, when
an impediment of this sort intervenes, and jurisdiction for nullity
has been conferred on no court by statute, our equity tribunals will
entertain the complaint and declare the marriage void."

A late decision from one of the former minority states
declares :

"The great weight of authority elsewhere is to the effect that
courts of equity have jurisdiction to declare marriages void even
where there is no statute regulating the subject." ^'^

"Avakian v. Avakian, 60 Atl. Rep. 521 (1905).

'''South Carolina. Mattison v. Mattison, 1 Strobh. Eq. 387, 47
Am. Dec. 541. But in Davis v. Whitlock, 73 S. E. Rep., 90 S. C. 233,
171 (1911) the court upheld the power to annul a marriage. It
is true that this decision is based upon the South Carolina Con-
stitution of 1895, giving the court "jurisdiction of all civil cases."
But this appears to be little, if any, broader than the Act of
Congress of 1860, above referred to, conferring "judicial author-
ity * * * in regard to civil rights, whether of property or
person."

Delaware. Elzoy v. Elzoy, 1 Houston, 308, where, as Dr. Bishop
says, "the court accept as of course, and without discussion, a
doctrine like this of South Carolina." Marriage & Divorce, II, sec.
292.

Pennsylvania. Pitcairn v. Pitcairn, 201 Pa. St. 368, 50 Atl. Rep.
963. But the courts of this state have no general equity powers.

=*II Marriage & Divorce (6th Ed.), sec. 291.

»« Davis V. Whitlock, 73 S. E., 90 S. C. 233, 174 (1911).

CAVANAGH V. WORDEN, APRIL 18, 1914. 325

And the leading American text ^^ summarizes the existing
law on this point as follows :

"A court of chancery, in the exercise of its ordinary powers and
jurisdiction and without the authority of a statute, may take ju-
risdiction of a suit to annul a marriage, where the cause alleged
is one of the well known grounds on which equity gives relief in
cases of contract, such as fraud, error, duress, or mental incapacity."

In the argument considerable stress was laid upon an
early decision ^- of this court regarding divorce. But there
is, of course, a very clear distinction -^ between that and
the annulment here sought, which can be granted only for
grounds antedating the marriage and preventing its lawful
occurrence; while divorce presupposes a valid marriage
but dissolves it upon grounds arising subsequently. Juris-
diction to decree annulment of marriage, as of any other
contract, may therefore well exist without jurisdiction to
grant a divorce. Besides the case referred to was decided
before the Court of Appeals decision above cited and it
seems more than doubtful whether the two can be recon-
ciled.

The jurisdiction of this court to grant the relief sought,
to wit, the annulment of a marriage on the ground of
duress, would seem, therefore, to arise from any one of
the following sources, viz. :

(a) The treaties which reserve and impliedly confer jurisdiction
"in regard to rights, whether of person or property."

( b ) The acts of Congress which invest this court with full
judicial powers "in regard to civil rights" including "matters of
contract" and which elsewhere expressly provide for the annulment
of marriages where consent is obtained "by force or fraud."

(c) The inherent jurisdiction of equity which this court is ex-
pressly permitted to exercise where the laws "are deficient in the
provisions necessary to furnish suitable remedies."

(d) The reversionary jurisdiction of the ecclesiastical courts in
matrimonial causes, to which chancery has fallen heir.

^^ 26 Cyc. 908, Note 8, and authorities there cited.

'' McDermid v. McDermid, March 18, 1907.

^ See among many authorities Burtis v. Burtis, 1 Hopkins Ch.
557, 14 Am. Dec. 563; Willard v. Willard, 6 Baxt. (Tenn.) 397,
32 Am. Eep. 529; Taylor v. White, 160 N. C, 38, 75 S. E., 941 (1912).

326 I EXTRATERRITORIAL CASES.

Such being the ample powers conferred upon this court
we have no doubt of its power to grant the relief prayed,
provided the allegations of the bill are proved.

The demurrer is accordingly

OVERRULED.^*

IN THE UNITED STATES COURT FOR CHINA.
United States v. John T. Allen.

[Criminal cause No. 90; filed April 25, 1914.]

SYLLABUS.
(By the Court.)

1. DISORDERLY HOUSES: Keeping of, is punishable as a nuisance

under the common law in force in this jurisdiction.

2. Id.: Distinct Offenses. Such punishment is not prevented be-

cause the keeper of such house is also subject to a penalty for
selling liquors therein without a license.

3. Id.: Evidence. Acts committed by frequenters thereof, tho out-

side, may be considered in determining the character of such
a house.

4. Id. : Penalty. There being no penalty prescribed by the com-

mon law, discretionary punishment was imposed in moderation.

F. E. Hinckley, Esq., U. S. Dist. Atty., for the prose-
cution.

Messrs. Fleming & Davies by Mr. Fleming, for the de-
fendant.

Lobingier, J.:

The information here charges the defendant with

"the crime of keeping a disorderly house in that said John T. Allen at
Shanghai, China, heretofore and from, or from about, May 1, 1913, and
thence to or to about January 16, 1914, provided and maintained a
building, known as the Oregon Bar, situated on North Szechuen Road
Extension at said Shanghai, China and without the boundaries of the
foreign municipalities at said Shanghai with furnishings, food and
drink and intoxicating liquors, and with attendance and servants,
open to the public day and night, and beyond midnight and until two
hours beyond midnight, wherein and whereby certain evil-disposed
persons, both men and women, of evil name and conversation, in-
temperately and unlawfully drinking intoxicating liquors and curs-
ing, quarrelling, and indecently, wantonly and lewdly misbehaving

** See post, p. 365, for opinion on the merits.

UNITED STATES V. ALLEN, APRIL 25, 1914. 327

themselves, he did cause to come together, associate and remain,
to the common nuisance of persons there passing and residing, against
the treaties between the United States and China and against the
laws of the United States in force on June 30, 1906, in reference to
American Consular Courts in China and against the public peace."

It will be seen that the first element of the offense
charged is that the place in question was "open to the
public day and night * * * ^j^^j until two hours be-
yond midnight." This is practically undenied. The de-
fendant himself, testifying in his own behalf, admits that
from the 5th to the 10th of each month he kept open until
after one A. M. while the witnesses, Smith and Hall, whose
testimony is not contradicted, declare that they have seen
the place open as late as 3 or 4 A. M.

The assembling of "certain evil-disposed persons, both
men and women, of evil name and conversation" at the
place in question, which is the second element of the of-
fense charged, seems also to be established by the over-
whelming preponderance of testimony. The accused ad-
mits that he employed two women at the place (one of
whom had been a person of evil life) who danced with the
customers and that both of them slept in a room above
the bar as did also the defendant himself. Four of the
five witnesses for the prosecution testified to having seen
women at the place dancing and mingling with its patrons,
one witness (Singer) declaring "I have seen women there
themselves mixed up with the people who were causing
the disturbance."

The claim that women visit other bars in the Interna-
tional Settlement of Shanghai does not afford a sufficient
excuse. The one witness (Hyland) for the defense who
was cross-examined on this point could not recollect having
seen women at such bars, except in one instance where the
wife of the proprietor was present. But even if the claim
were well founded we must observe American standards
in determining what would be, under our treaties, "an
improper act" for Americans in this extraterritorial juris-
diction and our laws ^ generally forbid women to frequent
bars. Besides, as will be seen, the evidence discloses that

'Act of Congress of March 3, 1899, Sess. Ill, 30 U. S. Stats, at
Large, Ch. 429, tit. II, sec. 478, p. 340.

328 I EXTRATERRITORIAL CASES.

women more than merely visited the Oregon Bar and one
of the witnesses, Detective Smith, testifies also to having
seen there men who were at least reputed to be gamblers
and Constable O'Dyer saw games played by two groups
of sailors with money on the table.

According to the third element of the charge persons
thus assembled at the Oregon Bar who were in the habit of

"intemperately and unlawfully drinking intoxicating liquors and curs-
ing, quarrelling, and indecently, wantonly and lewdly misbehaving
themselves."

All the Government witnesses who visited the place tes-
tify to quarrelling and fighting on the part of its patrons.
Constable O'Dyer heard "drunken singing" and "obscene
language," Constable Hall saw fighting in the course of
which a large window was broken, and other witnesses
testified that the place was a nuisance to passers by, some
of whom were school children.

It is true that the witness, Hyland, for the defense,
testifies that he never saw any serious disorder at the
Oregon Bar and by stipulation it was agreed that several
other witnesses would so testify; but we cannot regard
this as equivalent to the positive statements of numerous
witnesses that they did see and hear such disturbances.
Certainly the testimony of a witness that he observed a
certain occurrence is not refuted by the statement of
another, tho quite as positive, to the effect that he did
not observe it; for he may not have had the same oppor-
tunities.2

The defendant himself does not deny the occurrence of
disorders outside, tho near, his place of business but
excuses himself upon the ground that he was not respon-
sible for what occurred in the road which he says "was
up to the police." Such, however, is not the legal standard
of responsibility in such cases. A recognized authority ^
states the rule as follows:

"The law holds the keeper liable for the disorderly conduct in
and about the house, and even for disorderly acts outside the house
by persons who became intoxicated therein."

■ See Sun Ming-shan v. Viloudaki, ante, p. 263.

M4 Cyc. p. 487 citing State v. Burchinal, 4 Harr. (Del.) 572.

UNITED STATES V. ALLEN, APRIL 2 5, 1914. 329

As was said in a leading case *

"The state was not confined to proof of what took place in de-
fendant's building. It might show that drunkenness, quarrelling, or
fighting occurred at the place, but without the building, if they
occurred by defendant's permission, or were occasioned by the busi-
ness which he was carrying on in the building."

The substantial features of the information seem, there-
fore, amply to be proven and that they constitute a punish-
able offense under the common law which, so far as
"necessary to execute the treaties," is in force in this
jurisdiction, will also appear from the authorities.

Thus in an early prosecution ^ before the United States
Court for the District of Columbia "for keeping a dis-
orderly house" the jury was instructed that if the defendant

"kept a public and open shop in this city, in which he sold liquors to
persons not lodgers or boarders in his house, at times to persons who
were drunk, at times to persons who came in drunk, and drank there
and went out drunk; sometimes to persons who came out and went
away from his house in a noisy manner and skylarking in the streets;
that his shop was generally kept open on Sundays, and that persons
not lodgers or boarders bought and drank spirituous liquors in the
shop on Sundays, and that he had no accommodations for travellers
or boarders, neither beds nor stables for such accommodation, and that
he had no license for keeping a public house from the corporation,
then the charge of the indictment is sustained."

A conviction was upheld under an indictment charging
that the defendant

"kept a disorderly house, and for lucre and gain caused and procured
evil-disposed persons to frequent and come together in his house,
and permitted them at unlawful times to be and remain there drink-
ing, tippling, cursing, swearing, and quarrelling to the common nuis-
ance, and in manifest destruction and corruption of youth and other
people in their manners', conversation, morals, and estate, etc." °

A verdict of guilty was also returned and sustained
under an indictment charging that the accused

^ State v. Pierce, 65 Iowa, p. 85, 21 N. W. 195, citing State v.
Webb. 25 Iowa 235.

° U. S. v. Bede, 24 Fed. Cases, 1063. See also U. S. v. Benner, 5
Cranch (C. C.) 347, 24 Fed. Cases, 1089.

* U. S. V. Elder, 4 Cranch (C. C.) 507, 25 Fed. Cases 996

330 I EXTRATERRITORIAL CASES.

"kept a certain unlawful, disorderly, and ill-governed house in the
city of Washington in tKe said county, as a common tavern, without
any lawful authority or license therefor, did take upon himself to
keep and maintain; and the said house did then and there, at the
days and times aforesaid, keep as a common tippling-house; and did
therein openly sell spirituous liquors to all persons calling for the
same, and allow the same to be drunk by such persons, in and about
his said house at all times, both at day and at night, and on all days,
both Sundays and other days; and did permit certain idle and ill-
disposed persons, to the jurors aforesaid unknown, to assemble to-
gether in his said house, and then and there continue drinking and
tippling, to the common nuisance of the good people of the United
States, to the evil example of all others, the corruption of the public
morals, and against the peace and government of the United States." '

So in an early Indiana case where the trial court had
quashed an indictment in similar terms its order was re-
versed by the Supreme Court which observed:^

"It is impossible not to perceive that a common tippling-house,
in and about which idle and dissolute persons are encouraged to
assemble, and are permitted to drink, swear, quarrel, and shout, by
night as well as by day, has the same evil tendency as the nuisances
referred to."

Nor does the fact that the accused is also subject to
punishment for selling intoxicating liquors without a license
prevent his prosecution for the offense of keeping a dis-
orderly house. The two are distinct and independent
crimes," and the fact that they arise from the same act
or course of conduct does not constitute double jeopardy.^"

We have no alternative therefore but to find the accused
guilty as charged.

In the imposition of the punishment, however, we are
vested with full discretion for the common law did not
prescribe a penalty for the offense charged," and this would
seem to be a case for this court to exercise the authority

"U. S. V. Columbus, 5 Cranch (C. C.) 304, 25 Fed. Cases, 589.

' State V. Bertheol, 6 Blackford, 674, 39 Am. Dec. 442. And see
other similar cases cited in 14 Cyc. p. 487.

'■' Parker v. State, 61 N. J. L. 308, 39 Atl. Kept. 651 (affirmed 62
N. J. L. p. 801). See also cases in Note 5 above.

'"Gavieres v. United States, 220 U. S., 338, 55 L. ed. 489; Flemister
V. United States, 207 U. S. 372, 52 L. ed., 252.

" 14 Cyc. p. 514, Note 48.

UNITED STATES V. ALLEN, APRIL 2 5, 1914, 331

conferred upon its predecessors, the consular courts, "to
award punishment according to the magnitude and aggrava-
tion of the offense." ^-

The accused is a young man, against whom no evidence
is offered of previously bad reputation. He has served a
three years term of enlistment in the United States Navy
and carries an honorable discharge. Moreover, it appears
that some time since he disposed of his interest in the
Oregon Bar and is not now engaged in any questionable
occupation. It is our earnest desire to encourage him in
his present course and to provide no obstacle to its
continuance.

As the offense here charged is the first of its kind on his
part and as there is no indication of its intended repetition,
we feel that the deterrent effect which is the law's one aim,
will be accomplished by a moderate punishment and we
are disposed to exercise accordingly the discretion con-
ferred upon us.

The accused is consequently sentenced to pay a fine of
one hundred dollars, Mexican currency, and the costs of
this prosecution.

On the same day similar sentence was imposed as fol-
lows on the same defendant in cause No. 89, wherein a
demurrer to the information had already been overruled.

The nature of the offense here charged and the Court's
jurisdiction to try and sentence the accused therefor were
fully considered in disposing of the demurrer ^ and need
not further be considered here.

Defendant asked for time to plead which was granted,
the District Attorney at the same time requesting an ex-
plicit ruling on the Court's authority to grant such leave
of which we have no doubt.^

At the opening of the trial the accused expressly admit-
ted all the material averments of the information, in effect

"12 U. S. Stats., Ch. 179, sec. 14, p. 75; Rev. Stats. U. S., sec.
4101; see U. S. v. Grimsinger, ante, p. 282.
^Ante, p. 308.
^ Bishop's New Criminal Procedure, I, sec. 731.

332 I EXTRATERRITORIAL CASES.

pleading guilty thereto, but took the stand in his own be-
half stating that he was unaware of the necessity of a license
for the sale of intoxicating liquors and that other American
citizens in different parts of China had engaged in the traf-
fic without such license.

Technically^ of course, this is no defense; for everyone
is presumed to know the law and one of the most time-
honored of legal maxims is ignorantia legis haud excusat.
Indeed were it otherwise the difficulty of convictions would
be almost insuperable for very few law breakers are familiar
with the precise terms of the statutes which they infringe.
So far, therefore, as technical guilt is concerned the plea
of ignorance cannot be accepted.

When we come to consider the penalty, however, such a
plea is pertinent and may well be taken into account. It
is true, as the accused states, that no effort has heretofore
been made to apply or enforce these license laws. Indeed
their applicability and enforcement here involved legal
questions in regard to which there may well be a difference
of opinion and while we have reached, the conclusion that
they are "necessary" and "suitable to execute our treaties"
with China it does not follow that the reaching of a different
conclusion by the accused or his advisers involves criminal
intent. On the contrary it seems quite probable that he
was far from intending to violate any license law.

Another circumstance which we feel obliged to con-
sider is that the accused has already been prosecuted and
convicted of a similar offense growing out of the same cir-
cumstances and while, as we have found, these offenses are
technically distinct and subject to separate penalties, the
deterrent effect of punishment, which is its sole purpose,
must be kept in view and in the case at bar we are of the
opinion that such effect will follow the imposition of a
fine similar to that in criminal cause No. 90, which is the
minimum penalty for the offense here admitted.^

The accused is accordingly sentenced to pay a fine of one
hundred dollars, United States currency and the costs of
this prosecution.

' Act of Congress of March 3, 1899, 55th Cong., sess. Ill, 30 U. S.
Stats, at Large, Ch. 429, tit. II, sec. 472, p. 1340.

CONNELL BROS. V. DIEDERICHSEN & CO., MAY 18, 1914. 333
IN THE UNITED STATES CIRCUIT COURT OF APPEALS.
CoNNELL Bros. Co. v. H. Diederichsen & Co.

[213 Fed., 737, 130 C. C. A., 251, No. 2361; filed May 18, 1914.]

SYLLABUS.
(By the Editor.)

1. PLEADING: PARTIES. Denial of an averment that plaintiff is a

"firm or company" does not challenge its capacity to sue which
must be raised by demurrer.

2. Id.: Proof of such averment is waived by a stipulation for judgment

upon such findings as the court should make upon the general
issues.

3. CONTRACTS: TlME OF PERFORMANCE. "In the contracts of mer*

chants time is of the essence" (115 U. S., 188) and a vendor
who undertakes to ship "during February" is liable to the
vendee if shipment is not made until March.

4. Id. : Id. : Waiver. Such delay found not to have been waived nor

due to unavoidable causes.

5. Id. : Id. : The Measure of Damages where such vendee receives the

cargo under protest, is the difference between the highest ob-
tainable proceeds of its sale, and the purchase price with interest
and necessary charges.

6. Id. : The rule of ejusdem generis applied.

Messrs. Kerr & McCord and C. H. Ha7iford, of Seattle,
and Fleming & Davies, of Shanghai, for plaintiff in error.

Messrs. George H. Whipple, Allen L. Chickering, and
Chickering & Gregory, of San Francisco, and Jernigan &
Fessenden, of Shanghai, for defendant in error.

Before Gilbert and Ross, Circuit Judges, and Dietrich,
District Judge.

Dietrich, D. J.:

This case comes here by writ of error from the United
States Court for China, for the review of a judgment
against the plaintiff in error, hereinafter referred to as
the defendant, for the amount of $3,830.89 and costs. The
pleadings are the petition or complaint and the defendant's
answer thereto. The petition alleges that the plaintiff,
H. Diederichsen & Co., is a German firm or company, doing
business at Chefoo and Shanghai, China, and elsewhere;
that on or about the 17th day of October, 1911, it entered

334 I EXTRATERRITORIAL CASES.

into a written contract, whereby it purchased from the
defendant 80,000 sacks of flour, to be consigned to plaintiff
at Chefoo, China, and to be shipped from Seattle, Tacoma,
Portland, San Francisco, or Vancouver, "by a steamer sail-
ing from any of said ports during the month of February,
1912." It is further alleged that the flour was not shipped
until about the 14th day of March, and that, upon the ar-
rival of the cargo at Chefoo, the plaintiff accepted it under
protest only for the purpose of mitigating the loss which
might follow a refusal to receive it. The prayer is for
damages alleged to have been sustained by reason of the
delay. In its answer the defendant, for want of sufficient
'knowledge or information, denies that the plaintiff is a
German firm or company. It expressly admits "that on or
about the 17th day of October, 1911, at Chefoo, China, the
plaintiffs and the defendant entered into a written agree-
ment, whereby the plaintiffs purchased from the defendant
80,000 sacks of flour." And it further admits that by the
terms of the contract it agreed to ship the flour "by a
steamer sailing from any of said ports (the ports named
in the complaint) during the month of February, 1912, and
consigned to the plaintiffs at Chefoo, China." But it al-
leges that its obligation in this respect was, by the con-
tract, made "contingent upon strikes, accidents, and other
delays unavoidable or beyond the control of the defendant."
It further alleges that it chartered the steamship Harpagus
for the shipment of the cargo, and that the flour was
delivered to Messrs. Dodwell & Co., agents for the Har-
pagus, upon the wharf at Tacoma, Wash., not later than
the 28th day of February, 1912, and that bills of lading
covering the shipment were issued to the defendant by
such agents prior to or on February 28, 1912. It also
denies that the plaintiff sustained any damage.

There was a preliminary hearing for the determination
of the question as to whether or not there had been any
breach of the contract, and, the decision of the court being
favorable to the plaintiff, a subsequent trial was had for
the determination of the amount of damages to be awarded.
* * * This mode of procedure was in accordance with
a written stipulation entered into by the parties and filed

CONNELL BROS. V. DIEDERICHSEN & CO., MAY 18, 1914. 335

in the cause, and, inasmuch as this stipulation is rehed
upon as a waiver of certain objections, we quote the sub-
stantive parts thereof in full:

"(1) That the hearing and trial of said action be confined in the
first instance as to the issue whether or not the defendant herein has
committed a breach of the contract mentioned in the pleadings herein
as to shipment or has committed such a breach of the contract as to
shipment as will render it liable in damages to the plaintiffs if dam-
ages have in fact been sustained by the plaintiffs. And that if said
court should hold, find, and decide that the defendant had not com-
mitted a breach of said contract, or such a breach of the same as
would render it liable in damages to the plaintiffs, then that such
judgment be made final.

(2) That, in event the court should hold, find, and decide that the
defendant had committed such a breach of the said contract as would
render it liable if damages had in fact been sustained by the plain-
tiffs herein by reason thereof, then the above-entitled matter shall
be again set for hearing on the issue of damages, and that evidence
in relation thereto, both on behalf of the plaintiffs and on behalf of
the defendant, may be offered and introduced by the respective parties,
and, after a full hearing and argument thereon, the final judgment
and finding of the court be made and entered herein."

The first proposition argued involves the question of the
identification of the plaintifi" or its capacity to sue. It is
alleged to be a "German firm or company." In the answer,
as we have seen, this averment is denied for want of suf-
ficient knowledge or information. The question was not
raised in the lower court, and is not covered by any assign-
ment of error ; it is suggested in the brief for the first time.
Clearly, if it involves nothing more than absence of proof,
we cannot consider it, for, even were there a sufficient as-
signment, proof upon all but two general issues, which do
not include this question, was waived by the written stip-
ulation. It is argued, however, that the point involves
something more than a want of proof, and that, it ap-
pearing upon the face of the pleadings that the plaintiff
is without legal entity, we should take cognizance of the
alleged error, even tho not assigned. The suggestion
that the question is jurisdictional is thought to be without
merit, and, that being the case, the objection comes entirely
too late.^ In its answer the defendant expressly admitted

' Bort v. McCutcheon, 187 Fed. 798, 109 C. C. A. 558.

336 I EXTRATERRITORIAL CASES.

making the contract with the "plaintiffs," and, by waiving
proof as to the character of H. Diederichsen & Co., it ad-
mitted that it is a German firm or company. If it desired
an averment of the names of the persons, other than H.
Diederichsen, who compose such firm or company, the ob-
jection should have been made by demurrer, on the ground
of defect of parties plaintiff or want of capacity to sue.-

It is next argued that the memorandum signed by the
defendant upon October 17, 1911, does not constitute the
contract or agreement between the parties. The conten-
tion Is directly in the face of the express admissions and
averments of the answer, where it is referred to, and a
copy exhibited, as "a copy of said contract." By its an-
swer the defendant also expressly admits that by the terms
and conditions of the memorandum the defendant under-
took to ship the flour "by a steamer sailing from any of
said ports (the ports already named) during the month of
February, 1912." The only defenses pleaded are that there
is a provision in the memorandum exempting the defendant
from liability in case of strikes, accidents, or other delays
unavoidable or beyond the control of the defendant; and
that the flour was in fact delivered at the wharf, ready for
shipment and a bill of lading covering the same was is-
sued, during the month of February, 1912.

We come now to the two general questions which were
reserved by the stipulation and upon which the lower court
passed. The first of these is whether or not there was a
breach of the contract. The substance of the memorandum
of October 17th is substantially as admitted and set forth
in the answer. By its terms, the flour was "to be shipped
by steamer sailing from either of the following ports:
Seattle, Tacoma, Portland, San Francisco, Vancouver,
during the month of February, 1912." The memorandum
also contains this clause: "All agreements herein con-
tained or implied are contingent upon strikes, accidents,
and other delays unavoidable or beyond" the control of the
defendant.

As a matter of fact, the Harpagus, the steamer upon
which the shipment was made, did not sail in the month of

A. M. Gilman & Co. v. Cosgrove, 22 Cal., 356.

CONNELL BROS. V. DIEDERICriSEN & CO., MAY 18, 1914. 337

February. The flour was not fully loaded until March 3d,
and the steamer sailed on March 8th. It will thus be seen
that there was a breach of the contract in respect to the
date of the shipment, unless the delay was due to one or
more of the excepted causes specified in the clause of the
contract last above quoted. As a general rule of law it is
well settled that

In the contracts of merchants time is of the essence. The time
of shipment is the usual and convenient means of fixing the probable
time of arrival, with the view^ to providing funds to pay for the
goods or of fulfilling contracts with third persons.^

It follows that, unless the case falls within one of fne
exceptions referred to, Diederichsen & Co. had the right
to rescind. The defendant urges that the general clause,
"other delays unavoidable or beyond its control," is to be
construed as including all delays which, for any cause, were
unavoidable or beyond its control, while the plaintiff con-
tends that, under the principle of ejusdem generis, it is to
to be limited to causes of the character of "strikes and
accidents." If we assume, without deciding, that its posi-
tion is well taken, in what light does the defendant stand?
By the exercise of reasonable diligence, could it have
avoided the delay? It was well known to both parties,
when the agreement was entered into, that there was no
regular line of transportation between Tacoma or any other
one of the specified ports and Chefoo. It was doubtless
contemplated that a vessel would be chartered to carry the
cargo and such was the practical construction placed upon
the agreement by the defendant itself, for, as we shall see,
it depended upon that means of transportation and under-
took to charter a vessel for the purpose. To say the least,
therefore, it was its duty to use reasonable diligence to
provide suitable means of transportation within the spec-
ified time. While the contract was entered into on Oc-
tober 17, 1911, and the shipment was to be made during
the following February, apparently no effort was made
to charter a vessel until December and no serious effort

'Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. 12, 29 L. ed. 366;
Cleveland Rolling Mill v. Rhodes, 121 U. S. 255, 7 Sup. Ct. 882, 30 L.
ed. 920; Mechem on Sales, Vol. 1, par. 746.

14008 O. W. 22

338 I EXTRATERRITORIAL CASES.

until after the middle of that month. At that time, thru
regular shipping channels, the defendant arranged for the
charter of the Indien, a ship which was then in the South
Atlantic waters, and which was reported to be due in San
Francisco the middle or later part of January. By letter
dated December 30th, the agents for the Indien advised
the defendant as follows:

"The steamer is expected to have left Buenos Ayres to-day for
San Francisco, via Coronal, and eventually a nitrate port, and we
expect her discharge at San Francisco about the 15th/20th February."

It will thus be seen that, if we make a reasonable allow-
ance for the time required for the vessel to reach Tacoma
from San Francisco, the margin for loading and sailing
in the month of February was very narrow and, upon the
whole, we agree with the lower court in holding

"That there was not such a factor of safety as would have been
insisted upon by a prudent business man who stood to commit a
serious breach of contract in the event of the failure of the ship to
reach Tacoma and load and sail during the month."

It is true that apparently the letter of December 30th
did not reach the defendant until about the middle of
January but the cables were available to it and in so
important a transaction it is thought that it should either
have fully protected its contract with the plaintiff by ap-
propriate guaranties in the charter party, or, if that was
impracticable, it should have kept itself advised of the
whereabouts of the Indien. And, when it became apparent
that her arrival in time to receive the cargo in February
was doubtful, it should have sought another vessel. As a
matter of fact, it waited until almost the 1st of February
before abandoning the Indien, at which late date it may
be conceded there was no ship more available than the
Harpagus. But diligence at this late hour cannot be re-
garded as excusing or expiating the earlier negligence. The
record contains no direct or satisfactory proof of any
accident to which the delay can be reasonably attributed.
There is hearsay evidence to the effect that the Indien was
detained a short time at Buenos Ayres for repairs but to
relieve the defendant from liability upon such a showing

CONNELL BROS. V. DIEDERICHSEN & CO., MAY 18, 1914. 339

would be to trifle with an important obligation of the
contract.

It is next contended that the default was waived. The
facts upon which this defense is based, briefly stated, are:
Thru a bank at Shanghai, the plaintiff established a credit
with the Wells Fargo Nevada Bank at San Francisco for
the payment of the purchase price of the flour. Defendant
was thereupon advised that upon presentation to the Seattle
National Bank, at Seattle, of the invoice, policy of marine
insurance, and the bill of lading, properly indorsed, its
drafts upon the plaintiff would be paid. Upon February
28th the defendant presented to the Seattle bank the
requisite papers and received credit for the full amount.
At the time apparently both parties were under the im-
pression that the flour had been actually shipped, whereas
the fact was that it was still on the wharf. On April 8th,
eight days before the arrival of the Harpagus at Chefoo,
the plaintiffs cabled to the defendant that they had learned
of the delay in shipment; that their buyers would refuse
to receive the goods; and that therefore they would hold
defendant responsible for nonperformance.

Even were it assumed that the Seattle bank had the au-
thority to waive the provision of the contract, which we do
not decide, it is manifest that there was no intent to make
the waiver, and the facts are insuflftcient to constitute an es-
toppel. The bank paid the money without knowledge that
the flour had not been loaded ; nor did it act negligently
in proceeding upon such an assumption. Surely, if the
defendant inferred from the delivery of the bill of lading
that the flour had been loaded, the bank may be excused
for so doing. Primarily it was the duty of the defendant
to see that the Harpagus sailed before the 1st of March,
and of this obligation it is not to be relieved merely because
it did not intentionally deceive or mislead the bank.

Upon discovering the error, the plaintiff acted with
reasonable promptness in giving notice of rescission. The
defendant having thereupon declined to recognize its re-
sponsibility, it was the right of the plaintiff to receive the
cargo, sell it at the highest obtainable price, and credit the
proceeds thereof upon the purchase price paid to the de-

340 I EXTRATERRITORIAL CASES.

fendant, after making proper deductions for the necessary
expenses of handling, storage, interest, etc. Upon an ac-
counting the lower court found that the proceeds, when so
credited, were insufficient to cover the purchase price, to-
gether with legal interest, and accordingly gave judgment
for the deficit.' The rule adopted was correct and it is
therefore unnecessary to consider evidence touching the
relative prices of flour at Chefoo at different times and the
rates of exchange. Such evidence is relevant only to a
measure of damages which the lower court properly rejected.
We find no substantial error in the record, and the judg-
ment ' will therefore be

AFFIRMED.

IN THE UNITED STATES COURT FOR CHINA.

Hans & Clara Bahlke, Plaintiffs, v. James H. Brown,

Defendant.

[Civil action No. 112; filed June 6, 1914.]

SYLLABUS.
(By the Court.)

1. NEW TRIAL: ERROR OF LAW is a sufficient ground for a new trial

under sec. 43 of the Consular Court Regulations.

2. FOREIGN LAWS: JUDICIAL NOTICE will not be taken of the law of

a foreign jurisdiction. In the absence of proof it "is presumed
to be the same as the common law of the forum."

3. AGENCY: AUTHORITY. An agent cannot generally bind his prin-

cipal to a longer lease or to other obligations than are expressly
authorized.

4. Id. : Id. Ratification by an agent of an unauthorized act requires

express authority.

ON MOTION FOR NEW TRIAL.

Mr. Judson A. Crane (with whom appeared the German
Consul at Tientsin), for plaintiffs.
Messrs. Allen & Lucker, for defendant.

LOBINGIER, J.:

This is an application by plaintiffs for a new trial, pur-
porting to be made under both Sections 42 and 43 of the

' Story on Sales, par. 409. " See ante, p. 304.

BAHLKE V. BROWN, JUNE 6, 1914. 341

Consular Couit Regulations for China, which, by the act
establishing this court are continued in force "so far as
practicable." ' As the first named section requires "proof
of the perjury of any important witness of the prevailing
party upon a material point, affecting the decision," arid
as no such proof is offered or suggested, that section need
not further be considered.

Section 43 authorizes the granting of a new trial "where
justice manifestly requires it; * * * with concur-
rence of the Minister." It is clear that if the plaintiffs
have any grounds for the order sought it must be under
this latter section and, as the Minister's judicial functions
in this regard have been transferred to this Court,- we are
accordingly invited to enter upon the general inquiry as
whether "justice manifestly requires" a new trial in this
case.

The precise point raised and urged by plaintiff's counsel
is, however, that the trial judge (our predecessor) com-
mitted an error of law in holding, in effect, that regardless
of whether or not the witness Kracke had authority under
and by virtue of the instrument Exhibit C to execute a
twenty year lease which would bind defendant, the contract
in any event was vitiated by a private agreement between
said Kracke and the plaintiffs by which the latter paid
Kracke the sum of six hundred dollars for the execution
of such a lease. This was in effect a finding of law by
the trial judge and which was assumed by him to be the
pivotal point in the case tho the certified copy of the Clerk's
minutes discloses that judgment was given generally for
the defendant.

We cannot agree with counsel resisting the application
that error of law may not be a ground for a new trial
under Section 43 above referred to. The language of that
section seems to us broad enough to include any error on
the part of the trial court producing a result which "justice
manifestly requires" a new trial to correct. Moreover, it
is admitted by defendant's counsel that said Section 43
was intended to take the place of the general rules and

' 34 U. S. Stats, at Large, Pt. I, 814, sec. 5.

^ See Opinion, State Department to the Minister, Mar. 2, 1917. Ed.

342 I EXTRATERRITORIAL CASES.

statutes which authorize the granting of new trials by
other courts and these almost invariably, we think, provide
among other grounds that "the judgment is contrary to
law".-* It is true that an error of law is a ground for
appeal but the power to grant a new trial is intended to
obviate the necessity of an appeal where the grounds are
sufficient and, moreover, the two remedies are by no means
exclusive.

But while we are of the opinion that an error of law,
when properly established, furnishes sufficient ground for
a new trial under Section 43, it is clear that such error
must appear from the evidence. Now in the present case
it is not claimed that the trial judge committed an error
of law according to American jurisprudence in holding as
he did that the transaction was vitiated by the payment of
the six hundred dollars. Indeed, the proposition seems
well supported by the authorities that such conduct upon
the part of the agent gives the principal the option to
repudiate the transaction.*

Plaintiff's contention on this point is merely that such
a transaction was valid under German law and that as
plaintiffs and Kracke were all Germans that law alone
should have been applied. But an insurmountable objec-
tion to this argument is found in the fact that no evidence
has been presented in support of plaintiff's contention as
to what the German law on this subject really is. It is
well settled that no court is entitled to take judicial notice
of foreign law,^ and no authorities have been produced
or suggested to the effect that this rule is inapplicable
merely because the court which applies it is located in an
extraterritorial jurisdiction along with other courts which
apply the laws of their respective sovereignties. The rule
is well settled that in the absence of proof to the contrary
the law of a foreign jurisdiction "is presumed to be the
same as the common law of the forum"." In the face of

=• 29 Cyc, 818.
*31 Cyc, 1572 et seq.

'Dainese v. Hale, ante, p. 39; 16 Cyc, 885 (71). See the article
"Foreign Laws," Am. & Eng. Encyc. of Law (2nd ed.), XII, 1060-62.
"Id., 1084 et seq.

BAHLKE V. BROWN, JUNE 6, 1914. 343

these established rules we are at a loss to determine how
we could properly hold that the trial judge committed an
error of law in applying a rule which, it is not disputed,
was correct according to American jurisprudence, and con-
cerning the German law of which no proof has been offered
either at the original trial or upon this hearing.

It was, indeed, suggested by plaintiff's counsel that the
error complained of was made in the judgment itself and
that the same necessarily could not be known until it was
announced. But it was also conceded that the Court's
views on this point were indicated early in the trial and it
must have been clear that this point was raised or was at
least being considered in the case and if the plaintiffs de-
sired to have it determined according to German law instead
of American law they would seem to have had sufficient
warning to provide a basis for such determination. More-
over, there was not only an entire absence of such evidence
at the trial but none has been produced upon this hearing
so that we are entirely without a legal basis for any finding
as to what the German law is upon this point. It was
also suggested that the difficulties of proving the German
law were very great but in view of the fact that such
proof may be made by calling in witnesses ^ as well as by
introducing books of authority, and of the further fact
that one of the plaintiff's representatives at this hearing
is a German advocate it would hardly seem that such diffi-
culties would be formidable.

II.

The foregoing considerations would and, we think, should
be sufficient to dispose of the application; but in view
of the arguments presented by the distinguished Consul
for the German Empire in behalf of the plaintiffs, in which
emphasis was laid upon the equitable features of the case
we have concluded to enter upon an examination of the
evidence to determine whether from that standpoint the
judgment really should have been different than it was.

In their amended petition plaintiffs allege that on No-

7 Id., 886 et seq.

344 I EXTRATERRITORIAL CASES.

vember 3, 1912, they "were lawfully entitled to the posses-
sion of" the property in question by virtue of

"a lease executed at Tientsin, June 28, 1910, by one W. Kracke as
agent thereto duly authorized by the defendant, J. H. Brown; that
by said instrument the above described land was leased to the plain-
tiff Hans Bahlke for a period of twenty years from the first day of
July, 1910",

and that

"the defendant J. H. Brown on or about said third day of November
1912, unlawfully and without right entered upon said premises and
did personally and by his agents and servants occupy said premises
under a false claim to the right of possession thereof, and denied
and refused to recognize the right of the plaintiffs to the possession
thereof, and prevented plaintiffs from occupying said premises as he
still does."

The prayer is that possession be restored to plaintiffs,
that defendant be restrained from further interference
therewith and for damages and costs.

The answer to the foregoing denies that plaintiffs were
ever entitled to the possession and avers inter alia that the
alleged lease is void because executed without authority
and further

"because the said document was procured by the fraud of the plain-
tiff Hans Bahlke in knowingly inducing the aforesaid W. Kracke
for the personal advantage of him the said Kracke to lease to the
plaintiff on terms and conditions far less favorable than might have
been obtained from other persons at the time,"

It is also alleged that defendant's wife is owner of the
premises.

The replication sets up that the lease was authorized by
defendant's wife.

There is in the files a letter from Kracke to the leading
plaintiff which contains the following:

"Regarding the presence of Mrs. Brown in the winter of 1910, I
informed her of the conditions of the lease; she then asked if I had
authority thereto, whereupon I referred to my power of attorney;
she did not see the latter however."

This would hardly support the averment that Mrs. Brown
authorized the lease; but the question cannot be adjudicated

BAHLKE V. BROWN, JUNE 6, 1914. 345

in this action for the reason that Mrs. Brown is not made
a party and the question whether she authorized or ratified
the lease of the property so as to bind herself cannot be
determined until she has had her day in court.

As to the defendant the authority to execute the lease
appears to rest primarily upon the instrument authorizing
him

"to act for me and in my stead in any business transactions that may
arise in reference to my real property situated in Tientsin and
Peking, China, and to evict anyone from any premises belonging to
me when rent is in arrears."

It will be seen that no specific power is given to sell
the land or even to lease it and the defendant's express
reason for executing the instrument is that he had had
difficulty in collecting rents and dealing with tenants and
that the instrument was intended to meet this situation
alone. This explanation seems to be confirmed by the last
clause of the above quotation, by Kracke's letter referred to
where he says,

"I had Mr. Brown send me this power of attorney some time ago,
because there were some tenants who did not W'ant to pay, and where
leases had expired they claimed rights to which I did not agree"

and by the following statement in his deposition;

"A tenant named Hempel on-.e doubted my authority to collect
rent. Therefore I begged Brown to let me have a written power of
attorney which I received. I stated the reason why I wanted a power
of attorney in the letter to Brown. It is likely that I mentioned in
the letter that I wanted to evict the tenant."

Yet notwithstanding such was the purpose Kracke assumed
to execute a lease for twenty years and which was to have

"entire validity even when Mr. Brown sells the land or when it
by reason of his death passes to his heirs. Moreover Mr. Bahlke has
the option of purchase, as well as, in case Mr. Brown is not willing
to sell, the first right of leasing."

It being conceded that all this was done while defendant was
absent from the country and without his knowledge and
that plaintiff paid $600 to the agent to bring it about, it
would hardly seem that the equities of the case are with
plaintiffs. The general rule, even where an agent has

346 I EXTRATERRITORIAL CASES.

authority, is that he cannot bind his principal for a longer
lease than that authorized ** nor to other agreements or
obligations.'-'

As to the claim that Mrs. Brown ratified an ultra vires
lease so as to bind defendant it is to be observed first that
an agent cannot generally

"ratify an unauthorized act performed by a third person on behalf
of his principal, unless he has authority to ratify it" ^^

and no evidence appears to have been produced that such
authority was ever conferred upon Mrs. Brown nor is there
evidence that she even communicated to the defendant the
results of her conversation with Kracke. It may be na-
tural to surmise that she did, but we cannot assume it
without evidence. As to the alleged acceptance of benefits
by defendant in the form of rentals we cannot find where
it is shown that this was done with notice that they were
derived from the unauthorized lease.

"The mere fact that the principal has received or enjoyed the
benefits of the unauthorized act will not amount to a ratification if
he did so in ignorance of the facts; nor will his retention of such
benefits after knowledge of the facts amount to a ratification if at the
time he acquired such knowledge and without his fault conditions
are such that he cannot be placed in statu quo or repudiate the entire
transaction without loss." "

Something was said in the argument regarding defend-
ant's reputation and if the question of his credibility were
before us that inquiry might be pertinent; but we are con-
sidering here not his own testimony but principally that
of others and his reputation would not affect his legal rights.

The question of plaintifll's' right to reimbursement for
extensive improvements placed on the premises in good
faith and in reliance on the lease in question does not arise
under the pleadings and hence cannot be adjudicated here.
But it is a question of importance to plaintiffs and there

'Borderre v. Den, 106 Cal., 594, 39 Pac. 946; Larkin v. Radosta,
119 N. Y. App. Div., 515; La Point v. Scott, 36 Vt., 603.

"Durkee v. Carr, 38 Or., 189, 63 Pac. 117; Schumacher v. Brewing
Co., 78 Minn., 50, 80 N. W., 838.

"31 Cyc, 1251.

"Id., 1269.

UNITED STATES V. DONOHOE, JUNE 6, 1914. 347

is no disposition to prevent its consideration or to deny
plaintiffs any relief to which they may be entitled on that
ground. Not having presented it in this case, however,
plaintiffs must be relegated to a separate action for such
relief and for the reasons above mentioned a motion for
a new trial must be denied without prejudice to plaintiffs'
right to commence a new action to recover for such im-
provements.

IT IS so ORDERED.

IN THE UNITED STATES COURT FOR CHINA.
United States v. Seeley T. Donohoe.

[Criminal cause No. 91; filed June 6, 1914.]

SYLLABUS.
(By the Court.)

LAWS: The postal legislation of China is not enforcible against
American citizens by criminal prosecution.

Joseph W. Rice, Esq., for the motion.

Frank E. Hinckley, Esq., U. S. Dist. Atty., contra.

LOBINGIER, J.:

This is a motion to quash an information charging the
fraudulent use of the mails by depositing certain matter
"in a postal agency of the Republic of China * * *
against the treaties between the United States and China
and against the laws of the United States."

The treaties primarily involved are those of 1844 and
1858 which provide for the punishment of "any crime" or
"any other improper act in China * * * according to
the laws of the United States." There is no treaty provi-
sion for the punishment of an act which is improper under
the laws of China alone for it was, and has always been,
the evident purpose of each nation to punish its nationals
according to its own laws and not to attempt to enforce
the laws of the other.

Nothing inconsistent with this view has been announced
by the Court of Appeals or by this Court, each of which is

348 I EXTRATERRITORIAL CASES.

committed .to the doctrine that a "law of the United States"
might be applied here tho originally enacted for some other
jurisdiction;' but it must in all cases be a "law of the
United States" and not of some other sovereignty.

The only law specified in the information is one which
forbids the deposit of certain matter

"in any post-oflfice, or station thereof, or street or other letter box
of the United States, or authorized depository for mail matter, to be
sent or delivered by the post-office establishment of the United
States." '

But it will be seen that the information charges not a
deposit of matter in such a postal agency, but in one of
the Republic of China while such an act is not within the
terms of the statute above quoted. There are numerous
decisions to the effect that this statute is not infringed
without an actual use of the United States mails.^

In the District Attorney's brief reference is made to the
universal postal convention of June 15, 1897, to which the
United States was a signatory power. This convention
enumerates various articles which are nonmailable ^ but
none of the matter specified in the information is included,
and besides the remedy provided for the violation of this
clause is exclusion from the mails; there is no warrant in
the convention itself for a criminal prosecution. And this
would seem to suggest a complete remedy in the case at
bar. If any American citizen is using the mails of the
Republic of China for an improper purpose that govern-
ment need only refuse him the use of its mails and the
purpose is accomplished. Doubtless the simplicity and
efficacy of such a remedy explains why the convention above
referred to contains no provision for enforcing its terms
by a criminal prosecution on the part of any signatory
power.

There being no warrant in either Act of Congress or

'U. S. V. Biddle, ante, p. 120; U. S. v. Allen, ayite, p. 308.

-Federal Penal Code (35 U. S. Stats, at Large, sess. II, Ch. 321)
sec. 215.

''Stokes V. U. S., 157 U. S. 187, 39 L. ed. 667; Brown v. U. S.,
143 Fed. 60; U. S. v. McCrory, 175 Fed. 802.

'30 U. S. Stats, at Large, p. 1641, Article 16.

UNITED STATES V. DONOHOE, JUNE 6, 1914. 349

treaty for a proceeding in this Court to enforce the postal
laws of China or to punish an -improper use of its mails,
we have no alternative but to sustain the motion to quash.
It is so ordered and unless the information is amended,
so as to charge an offense, within five days the proceeding
will stand dismissed and the cash bond deposited by defend-
ant will be returned to him.^

° In U. S. V. Armstrong, Criminal Proc. No. 92, U. S. Court for
China, June 13, 1914, the sams Judge said:

This is a demurrer to an information charging the "deposit of li-
belous matter and envelopes in the mails." The information does not
specify what "mails" were so used. True the act is charged to have
been committed "against the laws of the United States," but a similar
averment v/as made in the information in U. S. v. Donohoe, No. 91,
where it appears that the mails in question were those of the Re-
public of China. We have held in that case that this Court has no
jurisdiction to punish a misuse of the Chinese mails and that the
statute specified applies only to offenses against the United States
mails. Since, therefore, the information does not specifically allege
that the matter in question was deposited in the United States mails,
we cannot assume that it was, nor does the demurrer so admit, for
that only is admitted on demurrer which is well pleaded. Besides
the defendant is entitled to be apprised of the specific offense charged
and so long as the information leaves him in the dark as to whether
he is charged with misusing the United States mails, or the Chinese
mails, it is bad for uncertainty.

The demurrer must therefore be sustained and unless the informa-
tion is amended within five days so as to charge an offense against
the United States mails, the information will stand dismissed and
defendant's bond discharged.

And U. S. v. Low Ping Leung, U. S. Court for China, March 29,
1919, Cause No. 745, where the law of China was again invoked, the
Court, by the same Judge, observed:

The accused pleads guilty to the offense of importing ten bottles
of morphine which the testimony at the preliminary hearing shows
to have contained about one ounce. The District Attorney admits
a doubt as to the applicability of the Act of Feb. 23, 1887 (24 U. S.
Stats, at Large, Ch. 210, p. 409; Rev. Stats., Suppl. Ch. 210), which
does not mention morphine, or of the Act of Jan. 17, 1914 (38 U. S.
Stats, at Large, Sess. II, Pt. I, Ch. 9, p. 275), which has special pro-
visions, not applicable to this cause, for extraterritorial jurisdictions.

In view of this and of the fact that the accused has already served
eighteen days in confinement awaiting trial, part of the delay being
due to the difficulty of obtaining counsel to act upon assignment by
the court, we are of the opinion that he should be released and it is
accordingly so ordered.

350 I EXTRATERRITORIAL CASES.

It appearing that the morphine in question was all seized by the
Chinese Customs Officials and has been retained by them without hav-
ing come into the possession of any American authority no order of
confiscation is necessary.

Shanghai Municipal Ordinances. "It appears that by the municipal
charter of Shanghai every foreigner owning land of the value of at
least 500 taels, or occupying a house of an assessed rental value of
not less than 250 taels, is a member of what is called the 'municipal
body' and is entitled to vote at all municipal elections. The 'munic-
ipal body' elect, at stated times, a municipal council, consisting of
not more than nine members, who have the power to make regulations
for the government of the municipality, subject to the approval of
the consuls and foreign ministers, or a majority of them, and of the
rate payers at a special meeting.

"In the proposed revision it is insisted by the municipality, in
respect to any by-law that may hereafter be passed, that 'any such
additional or substituted by-law, or alteration or repeal of a by-law,
shall be binding when approved by the treaty consuls and the intend-
ant of circuit, or by a majority of them; but the representatives of
the treaty powers may, at any time within six months of the date of
such approval, annul any such additional or substituted by-law, or
alteration or repeal of a by-law.' * * *

"The ordinances of the municipality of Shanghai, altho dependent
for their operation as to citizens of the United States upon the ap-
proval of the Minister of this Government in China, are conceived
to present in one aspect a different question from that of the power
of the Minister of the United States as to criminal legislation. The
municipality of Shanghai is understood to have been organized by
the voluntary action of the foreign residents (of certain nationalities),
or such of (those residents) as were owners or renters of land, for
the purpose of exercising such local powers for the preservation of
the order and morals of the community as are usually enjoyed by
municipal bodies. In the United States, where government is reduced
to a legal system, these powers of local police rest on charters granted
by the supreme legislative authority oi the State; but it is not dif-
ficult to conceive of a case in which a community outside of any
general system of law might organize a government and adopt rules
and regulations which would be recognized as valid on the ground
of the right of self-preservation, which is inherent in people every-
where.

"In this light may be regarded the municipal ordinances of Shang-
hai. The foreign settlement not being subject to the laws of China,
and the legal systems of the respective foreign powers represented
there being not only dissimilar inter se, but insufficient to meet the
local needs, it became necessary for the local residents interested in
the preservation of peace and order to supply the deficiency.

"American citizens residing in Shanghai enjoy, in common with
other persons composing the foreign settlement, all the rights, priv-

REX V. LEE KI-LUNG, MARCH 13, 1919. 351

ileges, and protection which the municipal government affords; and
as they go there voluntarily, and presumptively for the advancement
of their personal interests, they may reasonably be held to observe
such police regulations as are not inconsistent with their rights under
the laws of the United States. It is true that this reasoning is not
conclusive as to the strict legal authority of the consul-general of
the United States to enforce such regulations; but, taken in connec-
tion with the fact that at present American citizens in Shanghai are
not subject to any judicial control except that of the consul-general
of the United States, it affords a basis upon which his enforcement
of the municipal regulations may be justified." Secretary Bayard
to Minister Denby, March 7, 1887, MS. Inst. China, IV, 244; Moore,
Int. Law Dig., II, 648-650.

Rule in British Courts. In Rex v. Lee Ki-Lung, H. B. M. Supreme
Court for China and Corea, March 13, 1919, [North China Herald
(1919), p. 732] Sir Haviland de Sausmarez delivered the judgment
of the court as follows:

The appellant was charged under article 70 (1), (iii) of the
China Order in Council, 1904, with importing into China goods, the
importation whereof into China is prohibited by law. He was con-
victed and sentenced to three months' imprisonment with hard labor.
The goods so imported were about 21b. of opium. The law which
forbids the importation of opium is Chinese law: the appellant asks
us to say that the law mentioned in the Order is English law and
that he ought to be acquitted. That is the only point before the
Court but it is by no means an easy one. Mr. Ward has been good
enough, at the request of the Court, to argue the case for the ap-
pellant and we are much obliged to him for his help.

Speaking generally, the criminal law applied to British subjects by
Article 35 of the Order is English law for the time being; where,
then, law is mentioned without any qualification it is to be presumed
that English law is meant unless the context requires otherwise.
This was the view of the magistrate in an earlier case, which was
not brought to the attention of the magistrate who convicted in the
present case, nor was the point before us argued before him.

The Article says that if a British subject imports goods prohibited
by law into China "he shall be guilty of an offense against this
Order and on conviction shall be liable" to imprisonment and fine.

Now, if English law is meant, the provision is meaningless for
English law does not deal with the import of goods into China: the
expression must therefore refer to some other law applicable to
British subjects in China, and we find that an act made or declared
an offense by the Order or by Regulations made under it may be
the subject of criminal proceedings. The importation of opium,
tho properly the subject of a regulation, has not been made so.
If then it is punishable as an offense it must be so because it is
made so by this article of the Order, The only possible alternative
law to that of England is that of China but that construction opens

352 I EXTRATERRITORIAL CASES.

the difficulty that China might put prohibitions on the import of
certain classes of goods which our country might not acquiesce in
so far as it concerned her own subjects. The Crown asks the Court
to say that "law" means a law of China concurred in by Great
Britain.

The article is in a group headed "Statutory or other offences;"
it is the first of a group dealing with our duties to China; article

71 deals with levying war against the Government of China; article

72 with piracy, tho that is perhaps more general; article 73 with
the breach of treaty obligations, and so on. Article 70 deals with
the revenue laws, the first two sub-articles deal with the smuggling
and the evasion of the payment of duty and the fourth with the
protection of monopolies established by law (it is difficult to say
that this is not the same kind of law as is named in sub-article 3).
On the face of them these are laws which could not be made binding
on British subjects without the concurrence of His Majesty's Gov-
ernment. The sub-article under construction does not, it is true,
deal with revenue, but it has this in common with (1) and (ii),
that it implies an evasion of the customs authorities. Lastly it
will be noticed on a perusal of the treaties that the articles dealing
with the prohibition of imports and exports are next in order to
those dealing with import and export subject to the payment of
duty. There seems to us no difficulty in construing "law" as used
in this article to mean Chinese law, so long as it is clearly under-
stood that that law has the concurrence of His Majesty's Govern-
ment. The difficulty which might be presented by the impropriety
of applying Chinese punishments to British subjects is removed by
the fact that the sanction is provided by the article itself and the
conviction is for an offense against the article. We would only
add that in our opinion that concurrence must be expressed in some
public document.

The Cro\vn Advocate has addressed to the Court a very interest-
ing historical argument in support of his contention that the import
of opium is prohibited by Chinese law and that that law has been
concurred in by Great Britain. From an historical note prepared
by Dr. Edkins and issued by the statistical department of the
maritime customs in 1889, it would appear that the habit of opium
smoking has been slowly growing in China from the early years
of the eighteenth century and that towards the end of the century
the habit had reached Peking and became so general that public
attention was called to it in government documents. It was also
about this time that the Canton authorities began to complain of
the rapid increase in the trade of opium. In 1800 there was an
edict issued prohibiting opium being brought to China in any ship.
The ships which brought it were British and Portuguese.

It seems from a letter presented to Parliament in 1783 that at
that time "the importation of opium into China is forbidden on
very severe penalties: the opium on seizure is burnt, the vessel

REX V. LEE KI-LUNG, MAR. 13, 1919. 353

in which it is brought to the port is confiscated, and the Chinese in
whose possession it is found is punishable with death. * * =i= That
this contraband trade has hitherto been carried on without incurring
the penalties of the law is owing to the excess of corruption in the
executive part of the Chinese Government."

Between 1835 and 1840 a set of very severe opium laws was
enacted which continued in force down to the date of the Foreign
Treaties. Amongst them is a provision that no opium is to be
landed whilst the cultivation of the poppy is punishable by stran-
gulation. There seems no reason to think that these laws were
observed with any greater attention than those already mentioned.
Still there is no doubt that, whether observed or not, the law made
the import of opium illegal and treated the use of it as criminal.
This continued until the treaty of Tientsin, made in 1858, when
the trade, which had in fact for so long been carried on, was recog-
nized and subjected to stricter provisos. The penal enactments to
which we have referred were repealed in the following year.

We must now examine the treaties in order to ascertain whether
this repeal absolutely put an end to the prohibition of the import
of opium by British subjects, the contention on behalf of the Crown
being that the restrictions being removed and the import of opium
being again forbidden by Chinese law. Great Britain must be taken to
have concurred in the law by which China excludes opium from her
dominions.

In the annex to the Treaty of Tientsin there are enumerated in
Rule 3 certain "contraband goods" the import and export of which
is prohibited; whilst Rule 5 deals with "certain commodities heretofore
contraband"; amongst the latter is opium. Its sale is restricted to
the port of entry and trade in it in the interior is forbidden to the
foreigner. Similarly the import of arms is subjected to restrictions;
other matters dealt with are the subject of export only. It is clear
that the import of arms into a country must be under the control of
its Government and we find opium in company with such articles as
these. Moreover, by Section III (1) of the Chefoo Convention, 1876,
an arrangement is contemplated "different from that affecting other
imports." The position of opium thus became that it was admitted
on payment of duty but was not regarded as an ordinary article
of commerce.

In 1894 came the treaty relating to Burmah and Article II pro-
vided generally for the prohibition of the importation and exportation
of opium across the frontier. This state of affairs continued to
1908 when His Majesty's Government entered into the opium agree-
ment of that year with China. It was the outcome of a popular
movement in China for the suppression of opium. This was followed
by similar agreement in 1911 wherein it appears that "the Chinese
Government have adopted a most rigorous policy for prohibiting the
production, the transport, and the smoking of native opium, and His
14008 o. w. — 23

354 I EXTRATERRITORIAL CASES.

Majesty's Government have expressed their agreement therewith and
willingness to give every assistance." Then follows an undertaking
that if the growth of native opium ceases, the export of opium from
India to China shall cease in less than seven years. It is matter of
common knowledge that this export to China has ceased, and that the
ports of Canton and Shanghai have been closed to the import of
Indian opium. It follows that His Majesty's Government have recog-
nized that the Chinese Government has taken the necessary steps
for effectively suppressing the "cultivation and import of native
opium." (Art. 3.) And part of the means by which this suppression
has been effected is the enactment in the provisional Criminal Code of
China of Article 266, which reads:

"Any person who manufactures, sells, keeps for the purpose of
selling, or imports from a foreign land any opium shall be liable to
penal servitude * * * ^nd a fine."

We are of opinion that China has by law suppressed the import of
opium and that His Majesty's Government has signified its conditional
concurrence in this suppression in so far as it affects British subjects
by the agreement of 1911 and that in fact the condition has been ful-
filled. The construction urged by the appellant would lead to the
startling result that now British subjects may import opium here with
impunity whereas formerly the import was only allowed after pay-
ment of very heavy duties and under very considerable restrictions.

It has been said that there has been no proof of this state of
affairs but it seems clear that this Court is bound to take judicial
notice ^ of the law of China, when its attention is called to it, and
further that it is unnecessary to prove treaties between His Majesty
and the Government of China, inasmuch as His Majesty's jurisdiction
is founded amongst other things on treaty and Article 73, which
provides for the punishment of the breach of a treaty obligation,
implies the duty of His Courts to take such notice of them.

Wo are, therefore, of opinion that this appeal fails and that the
conviction should stand.

IN THE UNITED STATES COURT FOR CHINA.

Karl Weigel, Plaintiff, v. The China Press et al.,
Defendants.

[Civil action No. 132; filed June 6, 1914.]

SYLLABUS.
(By the Court.)

1. LIBEL: Privilege: Judicial Proceedings. A fair and correct re-
port of a judicial proceeding is qualifiedly privileged matter

' See ante, pp. 73, 83, 342. Ed.

WEIGEL V. CHINA PRESS ET AL., JUNE 6, 1914. 355

which may ordinarily be published without liability except for
malice.

2. Id. : Id. ; Id. : What is. An application by police officers to a

tribunal of competent jurisdiction resulting in the issuance of
a writ or warrant in connection with a pending criminal inquiry
is a "judicial proceeding" within the meaning of said rule.

3. Id. : Id. : A newspaper statement, in publishing such a report, that

"the police felt justified in getting a warrant against" plaintiff
"and making sure he is within their reach" preceded by head-
lines indicating that he was "arrested" and "in custody" is not
shown to "exceed the privilege" where the warrant in fact com-
manded a thoro search of plaintiff's person and required no
property to be brought before the magistrate issuing the war-
rant.

4. Id. : Id. : "Arrest" in legal parlance means any form of detention

by an officer of the law. It requires neither warrant nor phys-
ical force. It does not necessarily imply that a trial is to
follow nor is it even restricted to criminal proceedings.

5. Id. : Id. : Id. : Overstatement. Where the report of such a pro-

ceeding is technically correct in characterizing plaintiff's deten-
tion as an "arrest" a subsequent instalment overstating the
duration thereof does not become actionable libel without evi-
dence that such overstatement in and of itself caused the
damage complained of.

Joseph W. Rice, Esq., for plaintiff.

Messrs. Jernigan & Fessenden, for defendants.

LOBINGIER, J.:

During- the night preceding January 23d, 1914, Mrs.
Wilhelmine Corfes Neumann, the wife of a prominent Ger-
man resident of Shanghai, was murdered by parties who
appear to be still unknown at this writing. On the morn-
ing after, Detective-Sergeant Welch of the Municipal Police
visited the Neumann premises. He testifies that he found
what he considered grounds for suspicion against plaintiff
and reported them to Inspector Armstrong by whom action
was taken. The result was an application by the Shanghai
Municipal Police Department to the local consulate of the
German Empire, of which plaintiff is a subject. The details
of this application are not in evidence but the result was
the issuance under seal of said consulate and delivery to
defendants of the following writ or warrant:

356 I EXTRATERRITORIAL CASES.

"Beglaubigte Abschrift,

Kaiserlich Deutsches Generalkonsulat fiir China.
J. No. II. 101/14.

In der Mordsache

Wilhelmine Corfes
wird die Durchsuchung der Person und der Ekkekten

1. Schlachters Karl Weigel

2. pp.
angeordnet

Schanghai, den 23, Januar 1914.
Der Kaiserliche Generalkonsulat
I. V.
Gez. Ney.
This may be translated as follows :

"Authenticated Copy.

Imperial German Consulate General for China.
J. N. II. 101/14.

In the murder of
Wilhelmine Corfes
The thoro search of the person and effects of

1. Butcher Karl Weigel

2. pp.

is ordered.

Shanghai, Jan. 23, 1914

The Imperial German Consul General

I. V.

Gez. Ney.

Captain Hilton-Johnson, Department Superintendent of
the Municipal Police, testifies that the application for a
warrant was made "because there were grounds for sus-
picion of implication" of plaintiff.

Detective-Sergeant Prosser testifies regarding plaintiff:

"In the afternoon when he came to the office I was there.

Q. About what time was that?

A. It was about half past two or a quarter past two.

Q. How long did he remain there?

A. Until about six o'clock; until his property was searched and
his statements verified.

Q. He remained there until his property was searched and the
statements he made were verified — he was examined by the police?

A. Yes, sir.

Q. After that he was allowed to go?

A. Yes, sir.

The foregoing summarizes the material parts of de-
fendant's evidence. Plaintiff's own version of the proceed-

WEIGEL V. CHINA PRESS ET AL., JUNE 6, 1914. 357

ings, or those portions with which he was familiar, differs
but little. Briefly it is as follows:

He had previously been employed by Mr. Neumann, and
was called to the latter's house and told of the tragedy
the morning after. Later Mr. Neumann informed Sub-
Inspector Reeves, who was present and was already in-
vestigating the case, that plaintiff could give information
regarding the Chinese servants employed in the house.
Plaintiff thereupon accompanied the Inspector to the Hong-
kew Police Station and while there was interrogated about
other matters than the servants. He was asked, e. g., where
he had been the night before. After some further ques-
tioning plaintiff left the police station and later returned,
he says, about three p. m., at which time he was told that
the police would be obliged to search his effects. He then
went to his lodgings in the company of a detective who
there made such a search.

4: :H :)c 4: 4: ^ i)'

Such a horrible catastrophe as this murder was necessarily
a subject of universal interest in the community and the
purveyors of news found in it a fertile field for exploitation.
The defendant newspaper in its two issues following the
date of the affair featured it in front page articles, each
nearly three columns in length, reviewing every circum-
stance and detail of which keen scented reporters could
learn. Plaintiff's treatment by the police did not escape
notice and the reporter's version of it was embodied in the
following paragraph appearing in its issue of January 24th :

"Former employee arrested. Developments were not long in com-
ing, for the police felt justified in getting a warrant against a German
named Weigel, who was formerly in Mr. Neumann's employ. This
was issued and executed within an hour. The police admit that, at
present, they have nothing absolutely connecting this man with the
crime but they feel justified in making sure he is within their reach
pending further investigations."

This paragraph appears on the second page of the paper
and constitutes possibly one twenty-fifth of the entire article.
In the headlines the following words appear: ''One arrest
made — Former employee placed in custody by police on sus-
picion".

358 I EXTRATERRITORIAL CASES.

It its issue of January 25th the headlines contain the
following: "Two Germans released; one still held". In the
body of the article appears this paragraph:

"Two Germans Released. Nothing further was done before any
court of law yesterday, tho two Germans on whom suspicion rested
for a while were also temporarily detained by the police. They,
however, were able to clear themselves absolutely, giving a completely
satisfactory account of their movements on the night of the murder
and they were allowed to depart. The man arrested shortly after
the discovery of the murder is still being held, pending further in-
vestigations."

The foregoing quotations constitute the basis of plain-
tiff's action.

The petition sets them out with innuendo and alleges that
they

"Were and are false and malicious and constitute a libel upon the
plaintiff; * * *

"that by reason of the aforesaid false malicious and defamatory
statements so Avritten printed and published by the defendants of and
concerning the plaintiff, plaintiff has been and is wholly unable to
obtain employment and has been and is since the publication of said
statements refused employment;"

and

"that the plaintiff has suffered gi'eat mental distress and agony
by reason of the printing and publication of the aforesaid false and
defamatory statements; — All to Plaintiff's damage in the sum of Ten
Thousand Taels,"

The answer admits the publications but alleges that of
January 24 is

"privileged and is a fair and correct statement of the facts of
the taking into custody and detention of plaintiff by the Municipal
Police of Shanghai and made in the bona fide belief that said pub-
lication was true and without any malice toward plaintiff;"

and that of January 25

"a correct and accurate statement of the information furnished
by the police as aforesaid and were published by defendants after
careful inquiry and investigation as aforesaid and in the bona fide
belief that said statements were true and without malice toward
plaintiff and are no libel;"

tho it is admitted that part of the headline and the last
sentence of the said second article "were not correct."

WEIGEL V. CHINA PRESS ET AL., JUNE 6, 1914. 359

Most of the other averments of the petition are denied
and the answer in closing alleges the publication by de-
fendants of

"a statement completely exonerating plaintiff from any connection
with the Neumann murder."

No reply or further pleading was filed and the cause pro-
ceeded to trial upon the petition and answer.

Taking up the first publication does the evidence warrant
plaintiff's averment that it is false? We have reviewed
the proceedings described therein and have seen how they
were conducted under the authority of a writ or warrant
issued by the German Consulate. Plaintiff objects that the
tenor of the article complained of is to the effect that this
was a warrant of arrest. But it will be observed that the
article does not specify the class of "warrant" which had
been obtained "against" plaintiff. His counsel's contention
"that the natural meaning of the word warrant standing
by itself is a warrant of arrest" finds contradiction in that
clause of the Federal Constitution which provides that

"no warrants shall issue but upon probable cause, supported by
oath or affirmation, and particularly describing the place to be
searched, and the person or things to be seized," ^

and which has been judicially declared not to include a
warrant of arrest, but merely search warrants.-

We do not see that plaintiff's plight would have been
improved in the least if, instead of publishing the article
complained of, defendants had printed a literal translation
of the writ or warrant in question; for then the public
would have been apprised of what seems to us the more
startling information that plaintiff's own Consulate General
had issued an order commanding (and not merely permit-
ting) the search of plaintiff's person and effects and that
all of this had been done in the Neumann murder case which
plaintiff alleges (Par. VII) "was the most brutal, dreadful
and heinous crime ever committed in Shanghai and the
most notorious and widely known."

'Amendment IV. Cf. Philippine Bill (Act of Congress of July
1, 1902), sec. 5.

* U. S. V. Wilson, 4 Phil., 317, 323.

360 I EXTRATERRITORIAL CASES.

In fact this writ differs in several particulars ^ from the
"search warrant" of Anglo-American law which is defined
to be

"an order in writing in the name of the state, signed by a magistrate
and directed to a peace officer, commanding him to search for per-
sonal property and bring it before the magistrate." '

It will be observed that the writ in question was not di-
rected to anyone, nor limited to a search for property, but
expressly co^mnanded a search of the person, thus requir-
ing, for a time at least, the person's detention, and did not
require the property to be brought before the magistrate
but apparently conferred full discretion upon the police
officers. The caption of the writ, making it appear to have
been issued in the murder case, affords another striking
difference and it is doubtful if this would have been ad-
equately described by calling it a "search warrant."

The objection that the article failed to mention that the
warrant contained the names of two persons can hardly
avail plaintiff so long as the copy which he offers in evi-
dence contains only his name. While every effort was
made by this court to have the original warrant introduced,
or at least inspected, by the Court, only the said copy has
been forthcoming and plaintiff must abide by its contents.

Nor do we think that the facts disclose the falsity of
the statement that the writ was "issued and executed within
an hour." The Court also made an effort to inform itself
as to the exact time of issue, inquiring particularly of the
witness from the German Consulate; but no information
was obtained. According to Detective-sergeant Welch no
action was taken on his report upon which the writ was
applied for until after midday of January 23, and according
to Detective-sergeant Prosser plaintiff came to the Police
Headquarters at 2.15 or 2.30. As the proceedings under the
warrant seem to have started very soon afterward, its exe-
cution may literally have commenced within an hour.

The most serious objection to the first article as urged in
plaintiff's brief relates to the use of the word "arrest" and

^ See Dalcke, Strafrecht and Strafprozess (Berlin, 1905), sees.
102-110, 112.
* 35 Cyc, 1265.

WEIGEL V. CHINA PRESS ET AL., JUNE 6, 1914. 361

"custody." Neither of these is employed in the body of
the article; both appear in the headlines and would nat-
urally be read in connection with, and interpreted by,
the article itself. It is clear from the evidence that plaintiff
was not "arrested" for the purpose of arraignment and
trial, nor does the article so state. Indeed it rather in-
dicates the contrary in stating that the police "feel justi-
fied in making sure he is within their reach pending further
investigations." The impression produced by this would
seem to be that the purpose of the whole proceeding was
to forestall plaintiff's possible escape. And this, accord-
ing to Captain Hilton-Johnson, was actually the case for
he testified that an attempted escape would have been
restrained, but that until such attempt the detention would
hardly be obvious. Certainly plaintiff was under detention
while his effects were being searched and he went to the place
of search in the company of an officer who, according to the
testimony, would not have permitted the plaintiff to go even
had he so desired.

Now the terms "arrest" and custody," like the term
"warrant," are used in several senses. An "arrest" is not
always for the same purpose nor in the same manner.
There may be an arrest for the purpose of arraignment and
trial and there may be an arrest merely for the purpose
of holding the prisoner pending action by some other au-
thority, as in extradition cases. Where a party is held
for several hours (as Detective-sergeant Prosser testifies
plaintiff was) for the purpose of investigating his possible
connection with a pending case and is so held under the
written authority of his own Government, is it a perversion
of truth to call such a proceeding an "arrest"? By com-
manding a search of his person, the writ, as has been seen,
required plaintiff's "detention" and therefore "arrest" for
a time at least. But a writ is not always essential ; for
arrests without warrant are quite common and entirely
proper under certain circumstances.^ Nor is it necessary
for the arresting officer to lay hands on the prisoner.^

'Voorhees, Law of Arrest (1904), Chapter VI.
Md. sec. 69; Butler v. Washburn, 25 N. H., 258; Bissell v. Gould,
1 Wend. (N. Y.), 210, 19 Am. Dec, 480; Jones v. Jones, 35 N. C, 449.

362 I EXTRATERRITORIAL CASES.

The term "arrest" is not even confined to criminal pro-
ceedings for arrest upon attachment in civil actions is au-
thorized in many American states as well as by the Consular
Court Regulations," and it has even been judicially declared
that the term belongs to such actions and that "apprehen-
sion" is the term for criminal proceedings.**

Nor can we agree that any different rule of interpretation
should be followed than if this were an action for false
arrest. To permit a plaintiff to vary the meaning of the
word according to the action he might bring would be as
reprehensible as to permit a defendant to "defame in one
sense and defend in another."

We are unable, therefore, to accept plaintiff's contention
that the necessary meaning of the first article was that
plaintiff' had been arrested under a warrant for trial on a
charge of murder. The terms used may not be very spe-
cific and the reporter who used them may not have under-
stood all of their meanings; but certainly the worst
meanings are not to be imputed where others are possible.
Nor is the character of the article to be determined from
isolated words and phrases. It was observed of a much
more offensive series of articles ^

"while, undoubtedly, certain expressions in each of the publications,
if construed without relation to the rest of the article in which they
appear, would be libelous, yet, if construed as they must be with
reference to the whole text, the libelous character cannot be estab-
lished. The articles are undoubtedly qualifiedly privileged. That
being true, they are not libelous per se, and, no express malice being
alleged, and there being nothing in the articles themselves, or in the
circumstances surrounding their publication, to indicate malice — the
desire evidently being only to publish sensational news in a sensa-
tional and somewhat flamboyant and embellished style — the publishers
are not legally responsive in damages."

We certainly cannot say, in the light of this decision, that
the proof here shows the first article to be a false report
of the proceeding.

'Par. 15.

' Hogan V. Stophlet, 179 111., 150, 44 L. R. A., 809.

"McClure v. Review Publishing Co., 38 Wash., 160, 80 Pac, 303.

WEIGEL V. CHINA PRESS ET AL., JUNE 6, 1914. 363
III.

The second article remains to be considered. It will be
observed that no names are mentioned and there is no
evidence that any reader of the defendant newspaper under-
stood that the man referred to as "still being held" was
plaintiff. In fact his counsel declares in argument that
"undoubtedly the two Germans referred to are the plaintiff
and the other German whose name was also on the search
warrant."

If the answer contained a general denial it is doubtful
if we would be justified in finding that the last sentence of
the second article refers to plaintiff, and we can only clearly
so find by applying the technical rule of pleading that aver-
ments not admitted are to be taken as true. But certainly
if we are to apply this rule in favor of plaintiff and against
defendants on this point we could not consistently fail to
apply it in favor of defendants and against plaintiff as re-
gards the untraversed allegation of privilege in the answer.
The rule must work both ways.

Assuming however that plaintiff is the one referred to
as "still being held" the question remains whether this state-
ment alone, which is admitted to be incorrect as regards
plaintiff, is libelous per se. That he had been held, in the
sense of being detained for examination, until six in the
afternoon, is the testimony, as has been seen, of Detective-
sergeant Prosser. The statement that he was "still being
held" speaks of course from the hour of going to press,
probably about midnight. There was accordingly an over-
statement of some six hours regarding the period of de-
tention.

Now we have not been cited to any authority and have
been unable after considerable search to find any, to the
effect that such an over-statement as to the duration of an
actual arrest constitutes libel per se. Of course had there
been no arrest or detention at all the second article would
have been an aggravation of libel, but since, as we
have found, there was an arrest, the over-statement of its
duration appears to have been little more than an incorrect

364 I EXTRATERRITORIAL CASES.

detail which would become actionable only upon proof of
damage.^"

There is no evidence here of special damage from these
publications. Plaintiff was not employed previous to their
appearance; he has had two positions since. And notwith-
standing his averment that he

"has been and is since the publication of said statements refused
employment"

it appears that he is now employed and that while he lost one
situation the evidence would not justify us in finding that
such loss was due to these publications. The one witness
beside plaintiff who was called on this point was a former
employer, Mr. Schiitz, who was questioned as follows:

"Q. Did you make any arrangements with Mr. Weigel to enter
your emplojmient?

A. Yes, sir; that was in the beginning of February, the 5th or
6th of the month. I employed him on commission and some expenses.

Q. How long did he remain in your employ?

A. About five day? — four or five days. I don't remember just
exactly.

Q. Did he leave your employ in four or five days?

A. I said to him so many people come to me and said that Weigel
was employed by me. I said yes and they said you know about
the murder. I said yes and I read in the paper that Weigel was
the murderer. I know it was not true but later I told Weigel so
many people come you had better go; they tell me you had something
to do with the murder case and you had better leave the position.

Q. Did you then have reason to believe he intended to sue The
China Press?

A. I did not know anything about The China Press. I never read
The China Press."

It will be seen from this that not only had the employer
not read the publications complained of but apparently none

^^ "To sustain a private action for the recovery of a compensation
in damages for a false and unauthorized publication, the plaintiff
in such action must either aver and prove that he has sustained
some special damage from the publication of the matter charged
against him; or the nature of the charge itself must be such that
the court can legally presume he has been degraded in the estimation
of his acquaintances or of the public, or has suffered some other
loss either in his property, character, or business, or in his domestic
or social relations, in consequence of the publication of such charge."

Stone V. Cooper, 2 Den. (N. Y.) 299. Cf. 25 Cyc. 253.

CAVANAGH V. WORDEN, JUNE 13, 1914. 365

of those who spoke to him about plaintiff had read them,
for no mention is made of newspaper articles, but only of
the fact that plaintiff had something to do with the murder
case, which would be sufficiently accounted for by the lan-
guage of the writ or warrant issued in the murder case of
Wilhelmine Corfes. Especially if they were Germans, as
would seem not improbable, they would appear much more
likely to derive their information from that source than
from publications in a foreign language which none of them
are shown to have read. And altho the petition alleges

"that the said news articles so published in The China Press have
been sent thruout the Orient and have been reproduced and reported
in other newspapers published in other cities"

there is nothing in the proof to support this averment. The
simple truth seems to be that before the publications com-
plained of plaintiff had become the victim of a groundless
and most unjust suspicion which took the form of a
legal proceeding under the authority of his own govern-
mental functionaries and that this was the chief cause of
the prejudice incurred by plaintiff rather than the subse-
quent newspaper descriptions of it however vague and in-
accurate they may have been. Plaintiff's remedy, like the
source of the injustice done him, should, it would seem, be
sought farther back than the publications.

On the whole we are of the opinion that a judgment for
plaintiff on this evidence could not be sustained and it is
accordingly considered and adjudged that he take nothing
by his petition. There will be no allowance of costs to
either party.

IN THE UNITED STATES COURT FOR CHINA.

Tahmi H. Cavanagh, Plaintiff, v. Salter D. Worden,

Defendant.

[Civil action No. 131; filed June 13, 1914.]

SYLLABUS.

(By the Court.)

1. MARRIAGE: SOLEMNIZATION: PRESUMPTION. Under the maxim
semper praesumitur pro matrimonio a plaintiff who admits the
performance of a marriage ceremony to which she was a party

366 I EXTRATERRITORIAL CASES.

has more than the usual burden to prove an averment that she
"refused to give her consent" thereto.

2. Id.: Such burden is not met where all the witnesses present except

plaintiff contradict her statement that she answered "no" to
the clergyman's questions.

3. Id. : Implied Consent and acquiescence by silence during such a

ceremony will suffice.

4. DIVORCE: Jurisdiction: Grounds. Since the decision of the

Court of Appeals recognizing as in force here all pertinent acts
of Congress, legislation prescribing the usual grounds for di-
vorce is not lacking and the jurisdiction to grant relief is com-
plete.

5. Id. : Desertion as a ground for divorce occurs where either spouse

continuously refuses without justification to live with the other.

6. Id. : Effect. Whether this court may, in a proper case, decree

a divorce a vinculo tnatrhnonii on the ground of desertion or
cruelty quaere; the case in judgment held to warrant no more
than a divorce a mensa et thoro.

Joseph W. Rice, Esq., for complainant.
Cecil R. Holcomb, Esq., for respondent.

LOBINGIER, J.:

This is a bill for the annulment of a marriage between
plaintiff and defendant conceded to have been formally sol-
emnized. After alleging threats on the part of defendant
to induce her to consent, plaintiff avers further,

"that the clergyman then attempted to proceed with the marriage
ceremony and did so proceed, but that the plaintiff refused to give
her consent, and refused to plight and give her vows, and refused
to participate in said ceremony; that nevertheless the plaintiff and
the defendant were by said priest pronounced to be husband and
wife."

In his answer,

"Defendant denies that he did alarm and or frighten her or that
she the plaintiff refused to give her vows and or refused to partic-
ipate in said ceremony,"

In ruling ^ upon the demurrer we have found that this
court has jurisdiction to grant the relief prayed for. We
have now to determine whether, upon the issue of fact thus
raised, plaintiff has made a case which entitles her to such
relief.

' Order of April 18, ante, p. 317.

CAVANAGH V. WORDEN, JUNE 13, 1914. 3^7

Obviously the burden which rests upon every plaintiff to
prove all material averments is here increased by reason of
the time honored maxim semper praesumitur pro matri-
monio. It being conceded that a marriage ceremony ac-
tually took place, plaintiff must show by a preponderance
of the evidence that she, as she alleges, "refused to give
her consent."

She herself testifies indeed that when the clergyman
asked her the usual question whether she took the defendant
as her husband she said "no"; but she is the only witness
called by either side who so testifies. Of the remaining
witnesses w^ho testified on this point three are positive that
plaintiff said "yes" in response to said question. The
other witness, the officiating clergyman, says that plain-
tiff did not respond to the question; but as the others, or
some of them, appear to have stood nearer to the plaintiff
than the clergyman himself this may have meant merely a
failure on his part to hear her say "no" and that he un-
derstood her to acquiesce, which would naturally be the case
or he would never have proceeded with the ceremony.

Now we certainly cannot say under this state of the tes-
timony that plaintiff has met the burden which the law
imposes upon her of proving "that she refused to give her
consent." The case therefore does not fall within the rule
of the authority cited by plaintiff's counsel where the other
witnesses and the surrounding circumstances "corroborated
the testimony of the defendant that she never consented
to the marriage." ^ Even where the evidence in support
of the marriage was less pronounced than here it was up-
held " and if we were to accept the clergyman's under-
standing that the plaintiff, while not responding in the
affirmative, offered no objection to proceeding after the cer-
emony was once commenced, the result would be the same.
For it is also an ancient maxim that "silence gives consent."
This, indeed, is recognized in the very authority cited plain-
tiff's counsel where it is stated:

'Roszel V. Roszel, 73 Mich., 133, 40 N. W., 858, 16 Am. State
Rep., 569.

'Martinez v. Tan, 12 Philippine, 731. Cf. Hilton v. Roylance, 25
Utah, 129, 69 Pac, 660, 58 L. R. A., 723, 95 Am. State Rep., 821.

368 I EXTRATERRITORIAL CASES.

"To constitute a valid marriage it must be entered into with the
consent and agreement of both parties freely and intelligently given,
which may be expressed either verbally or in writing or implied from
the acts of the parties or the ceremony performed.*

We do not think, either, that this question of consent can
be determined from the circumstances which preceded or
followed the ceremony. The question is, Did plaintiff con-
sent, overtly or by implication, during the ceremony? If
she did it is not material whether she had been unwill-
ing previously or whether she afterward repented, as she
seems to have done. That she "refused to give her con-
sent" during the ceremony and at the crucial point in the
whole proceeding remains, we must find, wholly unproven.

Finally we do not think the evidence sufficient to support
plaintiff's further allegation,

"that she then refused and has ever since invariably, unwaveringly
and continuously refused to allow cohabitation and has never in fact
lived or cohabited with said defendant,"

Here again the burden rests upon her and, while this
is a fact necessarily known only to her and the defendant,
he is even more positive in affirming such cohabitation, im-
mediately following the marriage, than she is in denying it.
We cannot assume that defendant is a less credible witness
on this point than plaintiff. At least the testimony is
evenly balanced; it does not preponderate in plaintiff's
favor as it must in order that she may meet the burden
of proof.

II.

Defendant's answer, which also contains in effect a cross-
bill, avers,

"that plaintiff refused to accept and live with defendant according
to his means to provide for her and deserted him,"

and there is also a long averment of cruelty on the part
of plaintiff in making various charges against the defendant
and upon these two averments the bill prays

"that the defendant be adjudged and decreed divorced from the
plaintiff."

*26 Cyc, 832-3.

CAVANAGH V. WORDEN, JUNE 13, 1914. 369

It is settled that such relief may be granted upon a cross-
bill even where, as here, the prayer of the original bill is for
annulment ^ and the question becomes one of jurisdiction.
The American Consular Courts in China, to whose former
extensive jurisdiction this Court has largely succeeded, not
infrequently granted divorces. Instances are recorded of
such decrees by Consular Judges at Newchwang in 1894 ^
at Shanghai in 1902 ^ and at Tientsin. Probably there were
many others which have not found their way into the books ;
for as early as 1864 Minister Burlingame, in framing Reg-
ulations ^ for the Consular Courts, included a number of
sections (46-52) on "Divorce." It is true that these do not
expressly assume to confer jurisdiction (they rather as-
sume its pre-existence) ; but the fact that such jurisdiction
was exercised over so long a period, and that the marital
status and even legitimacy of Americans yet living may
depend thereon, must give us pause in questioning that
jurisdiction now. It might have been upheld under the
general grant of equity powers ^ for authority is not want-
ing for the doctrine that such a grant includes divorce, ^°

In an earlier decision of this court " such relief was
denied mainly on the ground that,

" Wadsworth v. Wadsworth, 81 Cal., 182, where the decisions,
especially those of the ecclesiastical courts, are reviewed at length.

'Moore, International Law Digest, III, 459; U. S. Foreign Rela-
tions (1894), 139.

' North China Herald, LXIX, 1138, 1194.

* Hinckley, American Consular Jurisdiction in the Orient, 230.

•12 U. S. Stats, at Large, Ch. 179, sec. 4; U. S. Rev. Stats.,
sec. 4086. Cf. Act of June 30, 1906, creating this court, 34 U. S.
Stats, at Large, Ch. 3934, Part I, 814, sec. 4.

" "It is therefore not suprising that this court should have uniformly
regarded actions of divorce as 'cases in equity.' " Sharon v. Sharon,
67 Cal., 193.

"Divorce causes belong to Chancery jurisdiction," In re Christen-
sen, 17 Utah, 412, 53 Pac, 1003, 70 Am. State Rep., 794, 41 L. R,
A., 504.

It is true that a different rule prevails in New York (Griffin v.
Griffin, 47 N. Y., 134) but this seems inconsistent with the reason-
ing of Chancellor Kent in the earlier case of Wightman v, Wight-
man, 4 Johns Ch., 343.

" McDermid v, McDermid, March 18, 1907.

14008 O. W. 24

370 I EXTRATERRITORIAL CASES.

"the Minister has not issued regulations prescribing grounds on
which divorce or judicial separation shall be granted."

But the subsequent announcement of the Court of Ap-
peals ^- that Congressional legislation, tho enacted origi-
nally for another locality, is to be applied here when the
subject is not otherwise provided for, supplies that defect.
For Congress has prescribed "grounds" on which divorce
or judicial separation shall be granted in both Alaska ^^ and
the District of Columbia.^*

And not only are the grounds prescribed but the jurisdic-
tion itself is expressly conferred upon Courts which, by
virtue of the extension, must include this Court, tho not
the Consular Courts whose civil jurisdiction is limited to
cases where the amount involved does not exceed five hun-
dred dollars, while divorce cases involve a status whose
pecuniary value cannot be estimated. ^^

III.

Having found that such jurisdiction exists we may now
inquire whether the facts in this case call for its exercise.
We have seen that defendant in his cross-bill alleges de-
sertion on the part of the plaintiff. This is in effect also
alleged by plaintiff in her averment

"that she then refused and has ever since invariably, unwaveringly
and continuously refused to allow cohabitation and has never in
fact lived or cohabited with said defendant."

In fact plaintiff has made no concealment of her fixed
resolution not to live with defendant and, according to the
testimony of one of the witnesses, plaintiff told her that she
had sent defendant away. This action and this refusal on
the part of plaintiff to live with defendant constitutes in
law desertion which, as defined by a work of recognized
authority,"

'' Biddle v. United States, ante, p. 120.

" 31 U. S. Stats, at Large, Sess. I, Ch. 786, Tit. II, sec. 467; Alaska
Compiled Laws, sec. 1302 (1900).

" 81 U. S. Stats, at Large, Sess. II, Ch. 854 [Dist. Columbia Code
(1901)], sec. 966.

" Heatherwick v. Heatherwick, 32 111., 73; demons v. Helehan, 52
Neb., 287, 72 N. W., 270.

"14 Cyc, 611.

CAVANAGH V. WORDEN, JUNE 13, 1914. 371

"consists in the voluntary separation of one spouse from the other,
for the prescribed time, without the latter 's consent, without justifi-
cation, and with the intention of r.ot returning."

Of the two Acts of Congress above cited prescribing
grounds for divorce, that relating to the District of Co-
lumbia, as the latest expression of legislative opinion, will
naturally be applied here if the two are in conflict.^' It
provides,

"that legal separation from bed and board may be granted for
drunkenness, cruelty, or desertion." "

It fixes no time, however, during which the separation
must continue. In the case at bar it began a few days
after the marriage ceremony and continued uninterruptedly
up to the time of the trial and presumably until the present
date. On the showing made, therefore, we must find that
defendant has established his alleged ground of desertion
and it is unnecessary to consider whether he has also proved
his second alleged ground of cruelty since either ground
will entitle him to relief.

IV.

The only remaining question is whether defendant is
entitled to the full relief prayed for, viz. : absolute divorce.
For either of the grounds alleged the provision last quoted
authorizes only "legal separation from bed and board." In
the Consular Court Regulations already mentioned and pro-
mulgated by the American Minister under the express au-
thority of Congress ^^ it is provided that,

"Divorce releases both parties, and they shall not be remarried to
each other."'"

Whether this clause would be sufficient, in a proper case,
to authorize this court to grant an absolute divorce for
either of the grounds here alleged is a question which we
prefer to leave open until such case arises. Assuming that

" 36 Cyc, 1130.

" 31 U. S. Stats, at Large, Sess. II, Ch. 854, sec. 966.
"Act of June 22, 1860, 12 U. S. Stats, at Large, Ch. 179, sec. 4;
U. S. Rev. Stats., sec. 4086.
'■' Sec. 51.

372 I EXTRATERRITORIAL CASES.

we have power to grant such relief this would in any case
include the lesser one of legal separation or divorce a ynensa
et thoro.

We cannot think that the testimony here presented would
justify us in rendering such a decree as would enable either
of the parties to remarry. There is evidence in the record,
uncontradicted, of statements on the part of each as to the
motive for entering into this particular marriage which in
our judgment discloses the lack of a proper conception of,
or attitude toward, the marriage relation; and as it was a
second experiment with each we think the interests of
society will best be subserved by leaving them hereafter to
remain single.

It is accordingly considered and decreed that the prayer
of plaintiff's bill be denied and that defendant be, and he
hereby is, granted a divorce a mensa et thoro from plaintiff
and that a legal separation between plaintiff and defendant
be and the same is hereby decreed but that neither party
be authorized to remarry.

There will be no allowance of costs to either party.

IN THE UNITED STATES COURT FOR CHINA.
United States v. John M. Gouldner.

[Criminal cause No. 95; filed June 24, 1914.]

United States v. Thomas C. Walker.

[Criminal cause No. 96; filed June 24, 1914.]

SYLLABUS.
(By the Court.)

1. EMBEZZLEMENT: CONVERSION is an essential ingredient of the

crime of embezzlement.

2. Id. : Conversion is not effected merely by selling or attempting to

sell, tho at a reduced price, goods held by a bailee for the pur-
pose of sale.

3. Id. : Secreting with intent to convert is an offense distinct from

embezzlement and requires clear proof of such intent.

Frank E. Hinckley, Esq., U. S. Dist. Atty., for the pros-
ecution.

Joseph W. Rice, Esq., for defendants.

UNITED STATES V. GOULDNER ET AL,, JUNE 24, 1914. 373
LOBINGIER, J.:

Defendants have been committed here from the Consular
Court on charges of embezzlement of "five automobile tires
and three tire inner tubes of total value of $150 United
States currency and three typewriters of total value of
$40." The prosecutions are brought under a statute pro-
viding

"That if any bailee, with or without hire, shall embezzle, or
wrongfully convert to his own use, or shall secrete, with intent to
convert to his own use, or shall fail, neglect, or refuse to deliver,
keep, or account for, according to the nature of his trust, any money
or property of another delivered or intrusted to his care or control,
and which may be the subject of larceny, such bailee, upon con-
viction thereof, shall be deemed guilty of embezzlement." ^

The evidence discloses that the articles above mentioned
were delivered by the owner to the defendants for the pur-
pose of sale. As regards the tires and tubes the defendants
executed to the owners a written instrument (Exhibit A)
by which the former agree in part as follows:

"6. The proceeds of all sales made by us shall be payable to you at
the rates of your price list current at the end of the month less the
discount as arranged within the month following that in which the
same is effected, whether their value is realized by us from the
purchaser or not.

"7. You will from time to time supply us with copies of your cur-
rent price lists for Motor Cover and Tubes and we will bind our-
selves not to sell at lower prices than those specified in your price
lists unless in special cases and having first obtained your per-
mission. An infringement of this clause will entitle you to discon-
tinue the supply of goods and to withdraw the consignment stock
on hand."

There appears to have been no corresponding instrument
with reference to the typewriters but the arrangement as to
these is described as follows by the owners' representative
and principal witness for the Government :

Q. Now what were the conditions under which you gave possession
of these typewriters to Mr. Gouldner?

A. Mr. Gouldner thought he had a chance to sell them and we
sent them to him under the conditions that he shall sell these type-

'Act of Congress of March 3, 1899, Sess. Ill, 30 U. S. Stats, at
Large, Ch. 429, Tit. I, sec. 47.

374 I EXTRATERRITORIAL CASES.

writers, these three typewriters, at the best possible price, we, the
company, to get twenty taels for each typewriter and the difference
between Mr. Gouldner's selling price and the twenty taels was the
commission for Mr. Gouldner.

Q. When you made this demand on the 20th did Mr. Gouldner
account for those typewriters?

A. I don't know exactly. Mr, Fleming asked Mr. Gouldner on my
behalf.

Q. But you know at present these typewriters are in possession of
Sander, Wieler & Company?

A. Yes, sir.

It will thus be seen that defendants had not "converted
to their own use" the articles in question merely by selling
them to others for that was the express purpose for which
they were delivered to the defendants by the owners. Yet
it was conceded arguendo by the attorney for the prosecu-
tion that the sole act alleged to constitute conversion of
the typewriters was the sale thereof in connection with
other commodities belonging to defendants' business; and
as to the tires and tubes the attempted sale thereof to
Mr. Honigsberg. So long as defendants did nothing more
than sell, or attempt to sell, they were strictly within the
limits of their contract.

There is indeed testimony that the tires were offered to
Mr. Honigsberg at a very low price but it is not contended
that this alone would constitute conversion and besides
there is no evidence as to the price ''specified in your price
lists" as recited in paragraph seven of the agreement
quoted above. Without such evidence we would clearly not
be justified in finding that the terms of said paragraph had
been violated ; and even if it had, the last sentence thereof
provides its own remedy by making such an act a ground
for terminating the arrangement. We have been cited to
no authority, and have been unable after considerable
search to find any, to the effect that a sale by a bailee or
consignee at a low price constitutes embezzlement. At
most it would seem to effect a breach of the contract and
the criminal element, if any, would arise upon a failure
to account for the full value after the sale — a feature which
could not arise in these cases because it appears from the
Government's own witness that all the articles above men-
tioned have been returned to the owners.

UNITED STATES V. GOULDNER ET AL., JUNE 2 4, 1914. 375

"The usual evidence given of the appropriation is, that having
received the money, etc., the prisoner denied the receipt, or accounted
for moneys received at the same time, or after, and not for it, or
rendered a false account, or practiced some other deceit in order to
prevent detection."^

Much of the Government's evidence relates to suspicious
movements on the part of the defendants indicating an
intention to depart. But it will be noticed that under
clause six of the instrument above quoted defendants v^^ere
required to account for "the proceeds of all sales" only
"within the month following that in which the same is ef-
fected." As all of the transactions in question occurred dur-
ing the current month of June it will be seen that defendants
are as yet under no obligation to account and there is
nothing in the contract which provides that such obligation
shall accrue the earlier because of any particular conduct
on their part. The acts alleged might give rise to a civil
attachment but they certainly fail to establish the elements
of the crime of embezzlement.

Defendants would not yet have been obliged to account
even had they retained the articles ; the latter having been
returned much less is there such an obligation.

II.

The information in Cause No. 96 besides charging em-
bezzlement also alleges that defendant Walker "did felo-
niously secrete, with intent to convert to his own use," the
same property. This is a distinct offense from that of em-
bezzlement.

"That is, the secreting of money with intention to convert it is
not embezzlement. There must be an actual appropriation thereof.
Under an information charging an actual embezzlement, proof of
secreting with intent to embezzle is insufficient." *

The evidence in support of this part of the charge affects
the defendant Walker alone and is conflicting. The prose-
cution's theory is that said defendant Walker secreted in
Mr. Honigsberg's garage the tires which he was attempt-
ing to sell to the latter. Defendant claims on the other

''Harris, Criminal Law (Am. ed), 186.

'McAleer v. State, 46 Neb., 116, 121, 64 N. W. Rep., 358.

376 I EXTRATERRITORIAL CASES.

hand that he merely left the tires there with the understand-
ing that Mr. Honigsberg would return them. Without de-
termining which of these two claims receives the greater
support from the evidence it fails in our judgment to show
that defendant did "secrete with intent to convert to his
own use" or that what he did was more than in promotion
of an attempt to effect a sale; and this as we have seen
was clearly within the terms of his contract and, to use the
language of the statute under which the prosecution is
brought, "according to the nature of his trust."

On the whole we are unable to find that the evidence
discloses conversion or "attempt to convert" and as this
is an essential element of the offense charged we have no
alternative but to direct an acquittal of the defendants and
a dismissal of the informations at the cost of the prose-
cution.

IT IS so ORDERED.

IN THE UNITED STATES COURT FOR CHINA.
United States v. Elmer Scogin.

[Criminal cause No. 97; filed June 30, 1914.]

SYLLABUS.
(By the Court.)

INFORMATION: JURISDICTIONAL AVERMENTS. An information in this
court which fails to allege defendant's nationality is subject to
demurrer.

F. E. Hinckley, Esq., U. S. Dist. Atty., for the prosecution.
James B. Davies, Esq., for the defense.

LOBINGIER J.:

A demurrer for insufficiency is here presented to an in-
formation charging the defendant with the "unlicensed sale
of intoxicating liquors." There is no averment as to the
citizenship of the defendant nor that he is subject to the
jurisdiction of this court and the demurrer is interposed
for the absence of such averment.

This is one of the courts of the United States which ^

' 11 Cyc, 845.

UNITED STATES V. SCOGIN, JUNE 30, 1914. 377

"are of limited, but not inferior, jurisdiction, possessing only such
powers as are either expressly or by necessary implication conferred
upon them."

This would seem to be especially true of this court which
is not only a United States Court but is the successor of
the consular courts which have been declared to be courts
of limited jurisdiction.^

In order that this court may acquire jurisdiction over
a defendant it is necessary that he be subject to American
authority — not necessarily an American citizen for there
are those like Filipinos and Porto Ricans who are not full
citizens but still subject to American authority.

Now the rule is well settled that

"Where the jurisdiction of the court depends on the citizenship
of the parties to the action it should affirmatively appear in the
pleadings." ^

If this be true in a civil case much more must it be so
in a criminal proceeding where the rules of pleading are
stricter and construed in favor of the accused.

Nor can we see that such a rule should lead to any real
difficulties in the administration of justice in this court.
It cannot exercise, and does not claim, jurisdiction over any
defendant not subject to American authority and unless
that fact can be established as regards any defendant it
is useless to institute a proceeding against him. It certainly
cannot promote the due administration of justice to in-
stitute causes which at some stage or other must be dis-
missed for lack of jurisdiction. That point, if it be in the
case at all, must be met some time and the best time to meet
it would seem to be at the outset before either party has
been put to the trouble and expense of a hearing on the
merits.

It should hardly be necessary to add that we are not here
passing on the burden of proof or the degree of evidence
required in order to show citizenship. We are simply an-
nouncing a rule of pleading and we have considered it
elementary that as against a demurrer all facts necessary
to give the court jurisdiction must be alleged.

' The Sparke v. Lee Choi Chun, 22 Fed. Cases, 871.
•11 Cyc, 875.

378 I EXTRATERRITORIAL CASES.

There being no averment in the information before us
that defendant is in any way subject to the jurisdiction of
this court the demurrer to the information must be

SUSTAINED.

IN THE UNITED STATES COURT FOR CHINA.
In re Jurisdiction over Frank Cecil Bascom.

[Civil cause No. 401; filed September 10, 1914.]

SYLLABUS.
(By the Court)

1. CITIZENSHIP: DETERMINATION. Whether citizenship may be deter-

mined in a proceeding like this, quaere.

2. Id.: Evidence reviewed and found insufficient to overcome defend-

ant's positive testimony that both he and his father were born
in America.

3. Id.: The Presumption of American citizenship arising from such

evidence of birthplace continues until overthrown by proof of
subsequent alienage.

F. E. Hinckleij, Esq., (with whom was /. B. Davies, Esq.),
for the Government.

Joseph W. Rice, Esq., contra.

Lobingier, J.:

The object of this proceeding appears to be to secure an
adjudication as to the citizenship of the defendant. In
argument the proceeding was termed a "bill quia timet" but
it fails to meet the requirements of such a bill as defined
by the authorities.

"There were two distinct kinds of bills of peace," says Mr. Pome-
roy,^ "the one brought for the purpose of establishing a general
right between a single party and numerous persons claiming distinct
and individual interests, and the other for the purpose of quieting
a complainant's title to land against a single advei'se claimant. In
the first class, the original jurisdiction to maintain 'bills of peace'
or 'bills quia timet,' properly so called, will only be exercised where
the claims of the numerous individuals have some community of
interest in the subject-matter, or arise from a common title; but

'Equity Jurisprudence (Remedies), Vol. VI, sec. 723. Of. 4th ed.
I, sec. 246.

IN RE JURISDICTION OF BASCOM, SEPT. 10, 1914. 379

the jurisdiction has been enlarged so as to entertain analogous suits,
where the community of interest is in respect merely to the ques-
tions involved or to the kind of relief demanded."

"A bill quia timet proceeds to the extent of securing rights against
an invasion, which need not be imminent or certain, but which may
be only future and contingent."^

The author continues under sec. 569 as follows :

"A few examples, however, of bills of this kind will assist in
making clear the general character and scope of this equitable remedy.
In a case ' which is frequently cited as an illustration of bills of this
class the plaintiff assigned several shares of the excise in Ireland to
the defendant and the latter covenanted 'to save the Lord Ranelaugh
harmless touching three parts of a farm, assigned to Hayes,' and to
stand in his place touching the pajrments to the king and other matters.
Afterward, the king sued the plaintiff for money which the defendant
ought to have paid and the former then filed his bill. The court
decreed that the agreement should be specifically performed and re-
ferred it to a master with the direction that toties quoties any breach
should happen he should report the same especially to the court, so
that the court might, if there should be occasion, direct a trial at law
in a quantum daTnnificatus. The court further decreed that the as-
signee should clear the assignor from all these suits and encum-
brances within a reasonable time. The case was compared to that
of a counter-bond, where altho the surety is not molested or trou-
bled for the debt, yet after the money becomes payable the court
will decree the principal to pay it. A more modern example of the
same kind of relief will be found in a case * where the plaintiff, who
had made a contributory in respect of certain shares of a joint stock
company, which was being wound up under the English Companies
Act of 1862, filed a bill in which he alleged that he had taken the
shares under an arrangement with the defendant that he should hold
them on behalf of the defendant, and deal with them as the defendant
should direct, and that the defendant should indemnify him against
all loss or liability which he might incur as the holder of the shares.
The prayer of the bill was that the defendant might be ordered to
reimburse to the plaintiff all sums of money which he had paid for
calls and all costs et caetera and to indemnify him against all liability
in consequence of his being made a contributory. The trust having
been satisfactorily established by the evidence, the plaintiff's right
to the indemnity was treated as a matter of course and a decree was
made accordingly."

Nor can the proceeding be treated as one to cancel a
certificate of citizenship within the meaning of the Act of

° Bispham's Principles of Equity (7th ed.), sec. 568.

' Ranelaugh v. Hayes, 1 Vern., 189.

* Hemming v. Maddick, L. R., 7 Ch., 395.

380 I EXTRATERRITORIAL CASES.

Congress providing that remedy; for it is available only
where such a certificate has been granted upon a petition
for naturalization,^ and nothing of the kind is claimed to
have been presented by the defendant at any time. A
certificate of registration for native born citizens is pro-
vided for by the Consular Regulations." There no provi-
sion is made, as in other cases, for cancelling it by a judicial
proceeding; that remedy is left entirely in the hands of
the Consul or the Secretary of State.

If, however, the question were before us in a proper
proceeding we would be unable to find under the evidence
that the defendant is not an American citizen. He testifies
under oath that he was born in Salem, Massachusetts and
that his father was likewise a native born American. The
defendant seems to have sworn to similar statements upon
several previous occasions, once in 1908 (Exhibit F) in
seeking and receiving a passport from the Philippine Gov-
ernment and again in 1912 (Exhibit B) in seeking and
obtaining a certificate of registration, like that last above
mentioned, from the American Consulate General at
Shanghai. There is no evidence of any kind which even
tends to contradict the defendant's testimony as to the
piece of his birth or to indicate that he was born elsewhere.

It is true that defendant's speech is marked by certain
mannerisms not common to native born Americans but this
appears fully to be accounted for by the conceded fact that
he has been more than half ojf his life in the Far East
in close association with those of other nationalities.

If we accept defendant's testimony as to the place of
his birth (and, as we have seen, there is no evidence which
w^ould justify us in rejecting it) we must, in the absence of
any claim or showing that he has ever transferred his
allegiance, find that the citizenship acquired by such birth
continues for one must "be regarded as a citizen of his
native state until it can be shown that he has acquired

•Act of Congress of June 29, 1906; Sess. I, 34 U. S. Stats, at
Large, Pt. I, Ch. 3592, sec. 15.

* U. S. Consular Regulations (1896), sec. 172, as amended by
Executive Order of April 8, 1907.

IN RE JURISDICTION OF BASCOM, SEPT. 10, 1914. 381

citizenship elsewhere." ' Moreover, it appears to be un-
questioned that the defendant was for a considerable time
in the Philippine permanent Civil Service where the qualifi-
cation of citizenship, American or Philippine, is imperative.

To overcome the evidence above reviewed the Government
offers certain letters received from the American Consul
General at Singapore (Exhibit H) including certain papers
purporting to be extracts from the official records of the
Federated Malay States. In one of the letters there is a
statement regarding the defendant that "it was understood
that he was a British subject." The letters, of course, are
m.ere hearsay, being statements by one not called as a wit-
ness,^ but even if competent the statement quoted purports
to be nothing more than a rumor and would be clearly
insufficient as a basis for a finding.

The so-called extracts from the records (Exhibit G)
are not authenticated by any proper certificate as foreign
public records are required to be in order to render them
admissible in evidence. Moreover, the notation there ap-
pearing as to the citizenship of the defendant does not
purport to emanate from him nor does it appear by whom
01- upon whose authority they are made. Clearly they are
not competent evidence against the defendant.

The same may be said as regards the letter (Exhibit K)
from the Philippine Executive Secretary to the effect that
the records of the Philippine Civil Service Bureau failed
to show the existence of an affidavit by the mother of
defendant which the latter claims to have filed in making
application for a Civil Service examination in 1904. The
absence of such an affidavit at this time would not prove
its non-existence ten years ago and his place of birth in any
event seems, as we have seen, sufficiently established with-
out such an affidavit.

Upon the whole we must find from the evidence before

'' 7 Cyc, 147; Hauenstein v. Lynham, 100 U. S., 483, 25 L. ed., 628;
Minneapolis v. Reum, 56 Fed., 57, 12 U. S. App., 466, 6 C. C. A., 31;
Quinby v. Duncan, 4 Harr. (Del.), 383; State v. Salge, 1 Nev. 455.
But see Coxe v. Gulick, 10 N. J. L., 328.

' Wigmore, Evidence, II, sec. 1360 et seq.

382 I EXTRATERRITORIAL CASES.

US that there is nothing sufficient to justify this Court in
withholding its jurisdiction from the defendant. It is
hardly necessary to add that such finding is restricted
to the proceeding before us and is not intended to affect
any other proceeding, administrative or otherwise, to de-
termine the question of citizenship.

The prayer of the bill so far as inconsistent with such
finding is accordingly denied and the proceedings dismissed
al: the Government's costs.

IN THE UNITED STATES COURT FOR CHINA.
United States v. Frank Cecil Bascom.

[Cause No. 402; filed September 26, 1914.]

SYLLABUS.
(By the Court.)

1. EMBEZZLEMENT: CONVERSION is an essential ingredient of the

crime of embezzlement.

2. MORTGAGES: DEPOSIT OF TITLE DEEDS. Under the English law a

mortgagee by the deposit of title deeds may repledge them by
way of submortgage and the mortgagor may redeem them from
the submortgagee by paying the amount of the original debt.

3. Id.: Id.: Locus. The English law and practice governing such

mortgages appears to prevail in the International Settlement of
Shanghai.

4. Id.: Id.: Conveirsion. Since the original mortgagee has the right

of repledge his exercise thereof cannot constitute conversion.

5. Id. : Id. : The "Concealment" mentioned in the Act of Congress of

March 3, 1901, must be one "whereby the estate, or right of
such other person shall or may be defeated, injured or altered."

6. Id.: Id.: Repledging. Such result is not effected by merely re-

pledging title documents.

7. FALSE PRETENSES: Evidence examined and found insufficient to

show the crime of false pretenses.

8. Id. : Joinder. "Whether the two crimes here charged may be joined

in one complaint, quaere.

F. E. Hinckley, Esq., U. S. Dist. Atty., for the prosecution.
Joseph W. Rice, Esq., for defense.

Lobingier, J.:

This is a prosecution for "Embezzlement and False Pre-
tenses." The information charges that defendant

UNITED STATES V. BASCOM, SEPT. 26, 1914. 383

"having received from Chen Lai-ming one land title deed, one
declaration of trust and one undertaking to transfer, said three
documents showing and being necessary to show said Chen Lai-
ming owner of land situate at Shanghai, China and there reg-
istered as British Consular Lot No. 7986, and having so received
said documents to be, and accepted them for security for a loan
of Shanghai Sycee Taels 8,000, and interest thereon by him made
for and from himself to said Chen Lai-ming on mutual under-
standing and agreement that said documents were to be held by
him as such security during the term of said loan and pending
repayment to him of said loan and payment to him of said interest
and notwithstanding tender of repayment at the close of the term
and payment of instalments and tender Qf full payment of said
interest, notwithstanding having so received said documents and in
place of so holding them, giving them for his own gain and for
security for a loan to him of Shanghai Sycee Taels 10,000, and
obtaining said last stated loan on the basis of so giving said docu-
ments into the possession and control of the business firm at
Shanghai, China, known as the Societe Franco-Chinoise de Credit,
and so giving them without the knowledge and consent of said
Chen Lai-ming and contrary to said mutual understanding and agree-
ment and deceiving and defrauding said Chen Lai-ming by false
representations relating to the return of said documents to said Chen
Lai-ming at and subsequent to the close of the term of said loan
to said Chen Lai-ming, said documents being writings whereby the
estate and right of said Chen Lai-ming shall and may be defeated,
injured and altered, the same, with intent to defraud and injure
said Chen Lai-ming, did wilfully, unlawfully, wickedly and feloniously
conceal, convert to his own use and embezzle: Against the laws
of the United States."

From the evidence, all of which was produced by the
Government, it appears that on January 19, 1914, the de-
fendant made a loan to one Chen Lai-ming, the transaction
being evidenced by an instrument of which the following
is a copy (Exhibit I) :

"This deed is made the 19th day of January, One Thousand Nine
Hundred and Fourteen, between Chen Lai-ming (Chinese characters)
of Shanghai hereinafter called the Borrower (which expression
shall be deemed to include his heirs and administrators) and Frank
Cecil Bascom of Shanghai hereinafter called the Mortgagee (which
expression shall be deemed to include his heirs and administrators).

Now this deed witnesseth that in consideration of the sum of
Shanghai Taels Eight Thousand (8,000) now paid to the Borrower
by the Mortgagee, receipt whereof is hereby acknowledged, the Bor-
rower hereby covenants with the Mortgagee to pay to the Mortgagee
on the 19th of July, 1914, the sum of Eight Thousand Taels together

384 I EXTRATERRITORIAL CASES.

with interest at the rate 14% per month. And this deed also wit-
nesseth in further pursuance of this agreement the Borrower as
beneficial owner doth hereby grant, assign and convey unto the
Mortgagee all the piece of land contained in B. C. Lot No. 7986
together with the house and other buildings erected thereon provided
always that if the Borrower shall on the 19th day of July, 1914,
pay to the Mortgagee the said sum of Shanghai Taels Eight Thou-
sand with interest thereon in the meantime at the rate aforesaid,
the Mortgagee shall reassign to the Borrower all his rights in
B. C. Lot No. 7986 and the buildings thereon.

It is expressly agreed that should the said sum of Shanghai Taels
Eight Thousand not be repaid to the Mortgagee by the 19th day
of July, 1914, the Mortgagee shall have the right to sell forthwith
the said land contained in B. C. Lot No. 7986 together with the
buildings thereon, and it is further agreed that seven days' notice
shall be given of the Borrower's intention to repay the said loan,
but this cannot in any case be done before the 19th day of July, 1914.

It is further agreed that all interest be payable on the 19th of
every month.

In witness whereof the parties to these presents have herewith
set their hands the day and year first above written.

Signed, Sealed and Delivered by the said Chen Lai-ming in the
presence of S. Hueng. C. C. Almeeda.

Signed, Sealed and Delivered by the said Frank C. Bascom in
the presence of S. Hueng. C. C. Almeeda."

At the same time and as a part of the transaction the
borrower delivered to defendant certain documents, viz.,
one termed a title deed (Exhibit A) another, styled a de-
claration of trust (Exhibit B), executed by one C. J. White
the registered owner and reciting that he held the land in
trust for the borrower, an insurance policy covering build-
ings on the premises and an estimate of valuation. The fol-
lowing letter (Exhibit C) was also received from said
registered owner:

"January 17th, 1914.
F. C. Bascom, Esq.,

No. 25-A Kiangse Road.

B. C. LOT NO. 7986.

Dear Sir:

I have pleasure in informing you, by authority of Mr. Chun
Lai Ming (Chinese characters) the owner of B. C. Lot No. 7986,
that I will transfer to you or your legal representative at any date
subsequent to July 19th, 1914, the said Lot No. 7986.
Yours truly,

(Sgd.) C. J. White."

UNITED STATES V. BASCOM, SEPT. 2 6, 1914. 385

It appears that while defendant was conducting the ne-
gotiations for this loan with the borrower he himself was
likewise arranging for a loan from an institution known
as Societe Franco-Chinoise de Credit and that on the same
date, to wit, January 19, 1914, he obtained from it a loan
of Taels 10,000 evidencing the same by an instrument of
which the following is a copy (Exhibit F) :

CONTRE-LETTRE.
Declaration of Trust.

Je, soussigne, notifie a tous ceux qui ces presentes verront,
Know all men to whom these presents shall come,
que la parcelle de terrain situee I „, , 1 e*

that the lot of land situated f^^^^'^ ^^ Sooehow Creekj^nd

enregistree sous mon nom au consulat rfe I _ .^. , ^

• . J . ^ ^, ( British Consulate

registered in my name at the J

"^ I ou T. ■ I ^'^"s le numero \ nana I (Seven thousand nine hun-
at I Shanghai, \ ^g j^^ number / '^^^ t dred and eighty-six)

et contenant 1 7 (Seven) Mow, no Fun, 3 (Three) li, 8 (Eight)
and containing J

haou 1^^* '** Wopriete de I g^^^^^^ Franco-Chinoise de Credit.
(is the property of )
Et je m'engage par les presentes a transferer cette propriete
And I hereby agree to transfer same at his request,

d lui ou a ses ayant cause, ou a telle personne qui me sera designee

when called to do so, on return of this document.

par lui on ses ayant cause, des qu^ j'en serai requis,

et que le present document me sera retourne. Je declare en

I have no
outre n'avoi/r sur ledit terrain aucun droit ni en vertu d'un
claim against the said lot of land in respect to money advanced
pret ni pour quelque cause que ce soit.
or otherwise.

Shanghai, le Janvier 19, 1914.

F. C. Bascom.

Defendant also delivered to his lender the title deed,
declaration of trust, insurance policy and estimate of
valuation which he had received from his borrower.

The lender's agent states (Dep. p. 16) that ''there were
no representations made to him" and the defendant's bor-
rower in describing how he came to obtain the money tes-
tified that "defendant's compradore told him that his
employer had money to loan * * *. He did not know
whose money it was but he only knew that Mr. Bascom was
to get the money."

14008 O. W. 25

386 I EXTRATERRITORIAL CASES.

The loan of Taels 10,000 was, by its terms, to run for
six months but on June 25 it was taken up and cancelled
and a new loan for Taels 14,000 issued to defendant with a
term of two months. As early as July 5 defendant's bor-
rower seems to have taken steps toward the repayment of
his loan, his promptness being due apparently to the fact
that he had arranged to obtain another loan elsewhere at
a lower rate of interest. It was then discovered that de-
fendant was not anxious to terminate the arrangement. In
fact he suggested an extension and offered to increase the
amount. This not being satisfactory to the borrower fur-
ther attempts were made to bring the matter to a head, the
defendant each time offering some excuse and finally stat-
ing that the title documents were in the hands of one A.
Strauss, vvho was stated to have been called to the German
colors. Finally the borrower learned, just how it does not
appear, that the documents were in the possession of de-
fendant's lender above mentioned, and on August 18, 1914,
the borrower commenced suit in this court by bill in equity
for the specific performance of defendant's undertaking to
reconvey and praying for the return of the documents.
To this bill no appearance was made and on September 22,
1914, a decree pro confesso was entered requiring defendant
to

"Comply with his contract of January 19, 1914 (a copy of which
is attached to the transcript of said testimony and marked 'Plaintiff's
Exhibit I'), by executing an instrument of conveyance reassigning
to the plaintiff herein all the said defendant's rights, title and
interest in B. C. Lot No. 7986 registered in H. B. M.'s Consulate
General at Shanghai, China, and that the said defendant deposit with
the clerk of this court all papers and documents relating to or
affecting the title to said property and now in the possession of
said defendant or under his power or control, all of the same to be
delivered to plaintiff upon his depositing with the said Clerk the
sum of eight thousand Shanghai Sycee taels (8,000) with inter-
est thereon as alleged in said bill up to July 19, 1914, less any
amount of interest lost by plaintiff as alleged in Paragraph 5 of
said bill; and that plaintiff recover his costs herein."

II.

The first question to be determined is whether under the
facts above set forth defendant is guilty of the crime of
embezzlement. It will be seen that the information charges

UNITED STATES V. BASCOM, SEPT. 26, 1914. .3g7

that defendant did "convert to his own use," etc. Con-
version, as we have recently had occasion ^ to point out,
is an essential ingredient of the crime of embezzlement.

It will also be noticed that the information alleges that
the defendant "received said documents to be and accepted
them for security for a loan * * * on mutual under-
standing and agreement that said documents were to be
held by him as such security during the term of said loan
and pending repayment to him of said loan," etc. It seems
evident that the conversion here charged is alleged to con-
sist in a breach of such "mutual understanding and agree-
ment ;" yet there is no evidence that defendant ever promised,
or that the borrower ever required, that the former should
retain possession of the documents "during the term of said
loan and pending repayment." The express agreement of
the parties appears to be embodied entirely in the instru-
ment (Exhibit I) first above quoted and that, as we have
seen, merely requires that "the mortgagee shall reassign to
the borrower all his rights in B. C. Lot No. 7986 and the
buildings thereon."

It is further to be observed that this instrument (Exhibit
I) differs in at least one particular from the ordinary mort-
gage deed in use elsewhere which usually contains a clause
vesting the title in the mortgagee followed by another clause
rendering the first void if payments shall be made according
to the instrument of indebtedness. Here, however, the in-
strument, after making an absolute conveyance, provides
that "if the borrower shall, on the 19th of July, 1914, pay
to the mortgagee the said sum of Shanghai Taels 8,000
with interest thereon the mortgagee shall reassign," etc.
In other words while the ordinary mortgage is a deed upon
condition precedent, this appears to be one upon condition
subsequent.' Thg point is important only as bearing upon
the form which the security took and the steps necessary
to revest title in the borrower. The instrument v/as un-

' U. S. V. Gouldner; U. S. v. Walker, ante, p. 372.

^ "Conditions are therefore either precedent or subsequent. Pre-
cedent are such as must happen or be performed before the estate
can vest or be enlarged : subsequent are such, by the failure or
non-performance of which an estate already vested may be defeated."
Blackstone, Commentaries, II, 154.

388 I EXTRATERRITORIAL CASES.

doubtedly intended to be, and is, a mortgage ; but instead
of creating a mere lien, as the ordinary mortgage does,
it would seem to effect a transfer of the title to the defend-
ant with the obligation on his part to reconvey upon the
payment of the debt. Such a mortgage, it would seem,
could not be discharged by a mere release as in ordinary
cases and would require an actual reconveyance; but on
the other hand such a reconveyance would seem prima facie
sufficient to restore the borrower in statu quo.

Such, then, is the express agreement of the parties and,
as we have seen, it contains nothing which required defend-
ant to retain continuous possession of the documents. It is,
however, contended and the information seems to be framed
upon the theory that such retention was at least implied.
But if the delivery of these documents to defendant had
any effect at all it was to constitute what is known in
Anglo-American law as a "mortgage by the deposit of title
deeds." This appears to be quite a common practice in
England tho it is but little used in America because
it is there held insufficient to satisfy the Statute of Frauds
and also because it does not conform well to the system of
registration prevalent in the latter country. The leading
American authority on the law of mortgages observes :

"An equitable mortgage may at common law be created by deposit
of the title deeds of a legal or an equitable estate as security for
the payment of money. This method of creating a lien upon land
is of frequent use in England and is sometimes adopted in the
United States. * * * j^ England, in the absence of a general
system of recording, the possession of the title deeds of an estate
is evidence of title. A transfer cannot be made without them. No
one is supposed to have the right to retain them unless he has a legal
or equitable claim to the estate they represent. In all transfers of
real estate the original deeds go with the property as evidences of title
and their examination by the solicitor of the parties is a prerequisite
to every sale. Except in the counties of Middlesex and York there
are no registries where search can be made to ascertain the titles
to lands, with the exception of copyhold titles, which are always
to be found recorded in the manor courts. The only security which
the purchaser has for the validity of his grantor's title is pos-
session of the deeds which establish it.

In the United States, however, the reason for this doctrine does
not exist. The registry system dispenses with the necessity of any
production of title deeds and supplies all the evidence to protect
both vendor and vendee. It furnishes at once a true statement

UNITED STATES V. BASCOM, SEPT. 26, 1914. 389

of the present condition of all legal rights to land; and, if an
original conveyance is ever lost or destroyed, a copy from the record
is received as an equivalent."*

It appears from the testimony of Mr. Gregson, English
barrister and one of the government's witnesses, that this
practice is in vogue in Shanghai and that it is common to
secure loans by delivering the title documents relating to
the property pledged. It seems also to be employed not
only by foreigners but among Chinese in transactions inter
se.* Moreover in the case at bar v^e are dealing not only
with an English practice adopted in this International Set-
tlement but also with a tract of land registered, as we have
seen, in the British Consulate. Under one notable deci-
sion ^ of H. B. M.'s Supreme Court this would bring all
controversies involving said land within the exclusive pale
of English law. And while that decision, it seems,^ no
longer holds, the one displacing it clearly recognizes that
the adoption of English legal practices in China carries
with it the English law pertaining thereto ^ and that the
law governing realty in China is Chinese law and not that
of some foreign country. Besides the English law on this
subject is likewise our own and it is well settled that, in
the absence of proof to the contrary, foreign law is pre-
sumed to oe the same as our own.^ No evidence has been

'Jones, Mortgages (7th ed.), I, 179. Cf. sec. 185.

' Thus in a recent case decided by H. B. M. Supreme Court, a
Chinese family "being hard pressed for funds in their banking
business, applied to Ch'en Yih-tsai, who w^as acting on behalf of a
syndicate of Chinese bankers, for a loan on the security of these lots.
Ch'en Yih-tsai thereupon lent to the undivided family Tls. 530,000, on
receiving from them the title-deeds and declarations of trust as above,
and a memorandum of equitable mortgage." Per BouRNE J. in re
certain Trusts, North China Herald, vol. CXII, p. 66, (July 4, 1914).

^ Hanson v. Watson, North China Herald, Oct. 8, 1899, per Hannen,
C. J.

" Macdonald v. Anderson, ante, p. 77; citing Secretary of State for
Foreign Affairs v. Charlesworth Pilling & Co., ante, p. 66.

' "A gTeat deal of English law^ has been uniformly followed for
half a century by His Majesty's subjects in China, and has thus
acquired the force of Chinese law, e. g., testamentary disposition of
land in China according to the English form, and English forms in
conveyancing." Bourne J. in Macdonald v. Anderson, ante, p. 77.

* Bahlke v. Brown, ante, p. 340.

390 I EXTRATERRITORIAL CASES.

offered here as to what is the Chinese law — if, indeed, there
is any — governing mortgages by the deposit of title deeds ;
and in order to determine the legal effect of the delivery
of these documents in the case at bar and the obligation
which defendant assumed with respect to the same we must
resort to the law of England which is also the law of the
forum.

Now the lav/ of England, far from requiring the mort-
gagee by deposit of title deeds to retain possession thereof,
clearly recognizes his right to repledge them. Says the
leading English text-writer on this subject :

"A mortgagee may assign the mortgage debt and the securities
for the same to another person by way of sub-mortgage * * *

"Debts secured by mortgage are often the subject of assignments
by way of mortgage which are termed sub-mortgages.

"A legal mortgagee may make a legal or an equitable sub-mortgage,
and an equitable m.ortgagee by deposit of deeds may create an
equitable sub-mortgage, by depositing the deeds with a third person,
altho he does not deliver over the memorandum." *

In argument it was urged in behalf of the prosecution
that this practice was permissible only with the consent of
the mortgagor. On the contrary, however, the editor of
the English notes to the English Ruling Cases i" observes :

"It is well settled that for the purpose of an assignment of a
mortgage debt and the securities for the same the concurrence or
consent of, or even notice to, the mortgagor, is not necessary."

Indeed the duty of notifying the original mortgagor ap-
pears to belong to the submortgagee rather than to the
mortgagee and to the former mainly for self protection.
For the English doctrine seems to be well settled that in the
absence of notice to, and consent by, the mortgagor the
submortgage by deposit of title deeds binds him only to
the extent of the original debt." It is even held ^'- that

* Coote, Mortgages, 837, 848 & 849.

'" Vol. 18, p. 254, citing Jones v. Gibbon, 9 Ves. 411.

"Coote, Mortgages (7th ed.), p. 849; Mathews v. Wallwyn, 4
Ves. 118; English Ruling Cases, Vol. 18, 244; Ex Parte Tuftnel, 4
D. & C, 29.

''■ English Ruling Cases, Vol. 18, p. 255; Mathews v. Wallwyn,
4 Ves. 118; Williams v. Sorrell (1799), 4 Ves. 389; Re Lord South-
ampton's Estate, Allen v. Lord Southampton (1880), 16 Ch. D., 178,
50 L. J. Ch., 218, 43 L. T., 687, 29 W. R., 231.

UNITED STATES V. BASCOM, SEPT. 26, 1914. 391

"All payments made by the mortgagor to the original mortgagee
after assignment and before notice would be valid and binding on
the assignee."

It seems clear then that under the English rule (which
would also be the American where the practice of submort-
gaging is followed) the defendant was not required to re-
tain possession of the title documents but had the legal
right to repledge them and that the mortgagor could re-
claim the documents by paying the submortgagee the
amount of the original debt at its maturity. Such being
the legal situation where may we locate, in this transaction,
the conversion which, as we have seen, is an essential in-
gredient of the crime of embezzlement? Defendant was
clearly not converting these documents by exercising his
legal right of repledging them. That he may have believed
that he was doing something reprehensible and which it
v/as necessary for him to conceal from the mortgagor does
not alter the case if he had a legal right to do it ; and if he
had boldly asserted that right instead of temporizing, pro-
ciastinating and prevaricating, as he seems to have done,
he would stand in a much better position before the public.

But we have been cited to no authority and, after con-
siderable search, have found none, to the effect that the
repledging of title deeds, delivered by way of mortgage,
constitutes embezzlement. The bankruptcy case ^-^ cited by
the prosecution was one where stock-certificates (person-
alty) were pledged under an agreement to use them for a
particular purpose which was not observed. There was no
such agreement in this case and the implied right of re-
pledging was, therefore, unlimited.

III.

But the information also charges that defendant's acts
above set forth contravene the following provision :

"Whoever, with intent to defraud or injure another person, shall
take away or conceal any writing whereby the estate or right of
such other person shall or may be defeated, injured, or altered shall
suffer imprisonment for not more than seven years." "

" In re Mclntyre & Co., 181 Fed. 955.

''•• Act of Congress of March 3, 1901, 31 U. S. Stats. a:t Large, Sess.
II, Ch. 854, sec. 840.

392 I EXTRATERRITORIAL CASES.

It is earnestly contended that this section modifies the
commonly accepted definition of embezzlement and that as
defendant "concealed" the documents in question he has
infringed its terms. Notwithstanding the ingenious argu-
ment of defendant's counsel to the contrary we are disposed
to agree with the prosecution that defendant did "conceal"
the said documents. We can place no other interpretation
upon his dilatory tactics and his misleading statement that
the documents were in the hands of another party than
the submortgagee. But a mere reading of the section will
disclose that concealment alone is not sufficient; the writing
must be so concealed that "the estate or right of such other
person shall or may be defeated, injured or altered." Hence
before we can convict the accused under this section we
must find that the borrower's "estate" (i e., interest in the
land) was thus affected.

If our previous conclusions are correct it certainly can-
not be said that any of these results will follow ; for under
the English law, as we have seen, the submortgage merely
operates as an assignment of the original mortgage, which
may be redeemed by the mortgagor upon paying his debt.
If, therefore, the English law covers che transaction and if
under said law the status of the borrower was not changed
thereby we could not find from the evidence before us that
his "estate * * * shall or may be defeated, injured or
altered."

It may be urged, indeed, that this interpretation will
throw the loss, if there be any, on the Societe which loaned
the accused Taels 6,000 in addition to what is required from
the mortgagor in order to redeem. But we cannot assume
in advance and without evidence that there will be a loss.
Besides, the relations between the defendant and his lender
are not involved in this proceeding. The information con-
tains no charge of embezzlement from the Societe; he is
charged only with "defrauding said Chen Lai-ming" and
in this proceeding he can be tried upon no other charge
than that contained in the information. It should be re-
membered, moreover, that the Societe's agent testifies that
"there were no representations made to" him and the loan
seems to have been closed upon the strength of the docu-
ments alone.

UNITED STATES V. BASCOM, SEPT. 26, 1914. .393

Now the principal document (Exhibit F) above quoted
and the only one signed by the defendant in dealing with the
Societe is most peculiar. Tho styled a "Declaration of
Trust" it is clearly not such in any sense in which that
phrase is used in Anglo-American law. Nor does it
even purport to be a conveyance of the property tho
the defendant does "hereby agree to transfer same at his
(the lender's) request" clearly indicating that the transfer
had not been made. It is true that the document recites
that the land "is the property of Societe Franco-Chinoise
de Credit" but that language was evidently inserted in the
printed form to cover an entirely different relation, such as
that which existed between the borrower and the registered
owner in this case. Besides the document recites that the
land is registered in the British Consulate and a glance at
the registry there would have shown that the defendant
was not the registered owner but that his borrower was the
real and beneficial owner whose rights could not be prej-
udiced by any transaction between defendant and his
lender.

It may further be urged that the Societe may deny the
applicability of English law to this transaction and refuse
tj surrei der the documents on the payment of the original
loan. But we have seen that the land is registered in the
British Consulate and the registry is therefore subject to
the jurisdiction of H. B. M.'s Supreme Court. We may
v/ell trust that eminent tribunal to apply the English law
vath its logical consequences which would not only preclude
the registration of any document prejudicially affecting the
mortgagor's title but also require the issuance to him of
a new title deed in case the original is wrongfully withheld
from him by any party outside the jurisdiction of said
court. Besides the registered owner has stated under oath
that he would make no transfer upon the instructions ot
defendant. On the other hand the latter as we have seen,
hc.s been required to reconvey the premises. He has com-
plied with said requirement by executing and depositing
with the clerk of this court an instrument whereby he does

"grant, remise, release, and recover to said Chen Lai-ming all of
the estate and interest derived by me by or thru said Mortgage
Deed, in said lands above described."

394 I EXTRATERRITORIAL CASES.

The possession of this instrument with a showing of the
facts relating to the submortgage ought to be sufficient to
enable the mortgagor ultimately to be placed in statu quo.
He may be put to some inconvenience and expense, by litiga-
tion or otherwise, but there is nothing yet before us to
v/arrant the finding that hio "estate shall or may be de-
feated, injured or altered," and we certainly cannot assume
in advance that it will be.

It was suggested in argument that if the accused were
acquitted it would discourage further dealings between
Chinese and foreigners. That, of course, would not justify
us in stretching the law; but far more serious, in our judg-
ment, would be the adoption of a rule making it criminal
to repledge title documents; for that would limit their
transferability and consequently impair their value and
interfere with legitimate transactions. The modern law
favors assignability ' ■ and statutes, especially penal ones,
must be construed in accordance with the evident tendency
to encourage the free transfer of commercial documents of
all kinds.

IV.

The second count of the information charges the accused
with

"False pretense made by him to said Chen Lai-ming, that he, said
Frank C. Bascom, then and there had in his possession and
control funds described by him as trust funds available for a loan
of Shang-hai Sycee Taels 8,000, by him to said Chen Lai-ming,
whereas in fact, as he, said Frank C. Bascom, well knew, he did
not then and there have in his possession and control said funds
so described."

We have already quoted the mortgagor's testimony on this
point. He says that he knew only that "defendant was
to get the money." We find no evidence upon which the
accused could be convicted under this count. Whether, in-
deed, a charge of embezzlement may properly be joined with
one for false pretenses iieed not here be considered since
no objection was made on that ground.^"

"Anson, Contracts (Huffcut's ed.), sees. 298, 299.

'' See, however. Act of Congress of March 3, 1899, sess. Ill, 30 U.
S. Stats, at Large, Ch. 429, tit. II, sec. 43. But compare Act of
March 3, 1901, 31 U. S. Stats, at Large, sess. II, Ch. 854, sec. 915.

UNITED STATES V. KILGORE, OCT. 3, 1914. 395

We are unable to find the defendant guilty upon this
evidence. His conduct in these transactions has not been
open or ingenuous; at times it has been evasive, shifty and
in one, tho not legally important, particular, untruthful;
whereas a straightforward course would have served him
much better and incurred no greater liability. Nevertheless
he has not, so far as the evidence discloses, committed either
Ox the crimes charged in the information and we have
therefore no alternative but to direct an acquittal and dis-
charge with costs de officio.

IT IS SO ORDERED.

IN THE UNITED STATES COURT FOR CHINA.
United States v. Willis B. Kilgore.

[Criminal cause No. 98.]

I. ON demurrer.
[Filed October 3, 1914.]

SYLLABUS.

(By the Court.)

1. EXTERRITORIALITY: Venue. The consular jurisdiction to which

this court has succeeded was not confined strictly to the ter-
ritorial limits of China.

2. Id. : Jurisdiction to punish offenses committed in China includes the

power to make such punishment effective; to fix the place, tho
outside of China, where the penalty shall be served, to exercise
control of the prisoner while en route there, and to prevent, by
proper punishment, all interference with such control.

3. Id. : Id.: Sources. The criminal jurisdiction of this court is dual,

being derived in part from treaties and statutes providing for
their execution and in part from other acts of Congress which
have penalized offenses committed elsewhere than in China.

4. MISPRISION: INFORMATION examined and found not to charge mis-

prision of defendant's own felony.

F. E. Hinckley, Esq., U. S. Dist. Atty., for the prosecution.
Messrs. Jernigan & Fessenden, for defense.

LOBINGIER, J.:

The first count of the amended information in this case
charges the defendant with

396 I EXTRATERRITORIAL CASES.

"the crime of allowing a prisoner to escape; in that said Willis
B. Kilgore, within the jurisdiction of said court, said jurisdiction
covering acts and omissions to act on the part of said Willis B.
Kilgore, on board the United States Army Transport Sheridan, a
vessel of the United States on United States Government service
on the high seas, that is to say, at the time of said acts and
omissions to act, within waters on the high seas side of the shore
low water mark in the port of Nagasaki, Japan, on voyage from
Manila, Philippine Islands, to San Francisco, California, said Willis
B. Kilgore having custody of one United States prisoner, by name
Peter A. Grimes, and having authority for and being directed to
deliver said prisoner to the Commanding Officer of Troops on
board said transport Sheridan for transfer of said prisoner to the
state prison at San Quentin, California, said state prison having
been designated to receive said prisoner, said delivery of said pris-
oner at said port in Japan with the arrangements in Japan neces-
sary to said delivery having been mutually agreed upon by the
Governments of Japan and the United States, at said place, to
wit on board said United States Army Transport Sheridan on said
high seas at said Nagasaki, Japan, heretofore and on or about May
20, 1914, said Willis B. Kilgore being then and there the prison-
keeper of the prison at Shanghai, China, for American convicts in
China with authority and direction so to have in his custody and
so to deliver said prisoner, said prisoner theretofore having been, by
said court, convicted of felony, forgery, and then and there on
said conviction, serving sentence of imprisonment of three years
for said forgery by virtue of process, to wit, commitment by said
court on said conviction and sentence, said process having been
thereto and to him, said Willis B. Kilgore, issued under the laws
of the United States by said court, said Willis B. Kilgore did
voluntarily and feloniously allow and suffer said prisoner to escape:
against the laws of the United States and against the Act of Con-
gress of March 4, 1909, Chapter 321 (Federal Penal Code), Section
138, 35 Statutes at Large, 1088, 1113."

To this count a demurrer is interposed on the ground
that it

"charges an offense committed outside the territorial jurisdiction of
this Court and of which this Court has no jurisdiction."

Counsel for the demurrant, in his argument, lays great
stress upon those phrases in the early treaties between the
United States and China by which the former reserves
jurisdiction over offences committed in the latter country.
The original (Gushing) Treaty does indeed provide that

"citizens of the United States who may commit any crime in China
shall be subject to be tried and punished only by the Consul, or other

UNITED STATES V. KILGORE, OCT. 3, 1914. 397

public functionary of the United States, thereto authorized according
to the laws of the United States.'"

The language of the second treaty is somewhat broader,
to wit,

"citizens of the United States, either on shore or in any merchant
vessel, who may insult, trouble or wound the persons or injure the
property of Chinese, or commit any other improper act in China, shall
be punished only by the Consul, or other public functionary thereto
authorized, according to the laws of the United States." "

Under this provision American jurisdiction is not limited
to offences committed on land, nor necessarily to those com-
mitted within the marine league for the language used seems
sufficient to cover offenses "on any merchant vessel" any-
where on the high seas, such vessels being "treated as part
of the territory of their flag" ^ for many purposes.

In 1848 Congress passed the first act designed to put
into effect such treaty rights and therein appears a further
extension of consular jurisdiction as follows :

"That in regard to crimes and misdemeanors, the said public
functionaries are hereby fully empowered to arraign, and try, in
the manner herein provided, all citizens of the United States charged
with offences against law, which shall be committed in the dominions
of China, including Macao, and, upon conviction, to sentence such
offenders in the manner herein authorized; and the said function-
aries and each of them are hereby authorized to issue all such
processes as are suitable and necessary to carry this authority into
execution."*

Here it will be seen that territorial jurisdiction is ex-
tended beyond China to the Portuguese Colony of Macao.

By the Act of 1860 a joint provision was made for the
exercise of extraterritorial jurisdiction in several countries
including China, Japan and Siam, the Ministers and Con-
suls of the United States therein being "fully empowered
to arraign and try in the manner herein provided all citizens
of the United States charged with offenses against law
which shall be committed in such countries respectively." ^

' Treaty of July 3, 1844, art. XXI; Malloy, Treaties, I, 203, ante, 1.

"- Treaty of June 18, 1858, art. XI; Malloy, Treaties, I, 215; ante, 2.

= Pig-gott, Extradition (1910), 166. Cf. Hall, International Law
(5th ed.), 248 et seq., 253; St. Clair v. U. S. 154 U. S. 152, 38 L.
ed. 943.

' 9 U. S. Stats, at Large, Ch. 150, sec. 2, p. 276.

' 12 U. S. Stats, at Large, Ch. 179, sec. 2, p. 72.

398 I EXTRATERRITORIAL CASES.

It will thus be noticed that for nearly a score of years
after the negotiation of our original treaty with China
there was a gradual extension of territorial jurisdiction
for American courts in Far Eastern countries and that
it was no longer confined strictly to the limits of such
countries. In a leading case •' involving the commission
of the crime of murder on an American vessel in the harbor
of Yokohama it was held that such courts had concurrent
jurisdiction with the domestic tribunals of the United States
in respect to said crime altho it was actually committed
on the ''high seas," which term was defined as including
"waters on the seacoast without the boundaries of low
water mark."

The treaty of 1894 between the United States and Japan

provided that:

"The jurisdiction then exercised by Courts of the United States
in Japan and all the exceptional privileges, exemptions and im-
munities then enjoyed by citizens of the United States as a part
of, or appurtenant to such jurisdiction, shall absolutely and with-
out notice cease and determine and thereafter all such jurisdiction
shall be assumed and exercised by Japanese Courts." '

It will be observed that this article provides for the sur-
render of no more than "the jurisdiction then exercised
by the courts of the United States in Japan;" such jurisdic-
tion as belonged to the courts of the United States elsewhere
over offenses committed on American vessels in Japanese
waters remained.

II.

We are unable, therefore, to find a legislative intent to
confine the territorial jurisdiction of even the consular
courts exclusively to China. Moreover in centering atten-
tion on the phrase "in China," used in the two earliest of
the treaties above quoted, demurrant's counsel seems to
overlook the force of the word "punished" ' appearing in
the same connection. The consul or other American repre-

' In Re Ross, ante, p. 40.

' Art. XVIII, Malloy, Treaties, etc., I, 1035.

*"The terms 'conviction' and 'punishment' each have a well-settled
legal meaning, and are used in the law to designate certain stages
and incidents of a criminal prosecution." In re Howe, 26, Or., 181, 37
Pac. Rep. 537.

UNITED STATES V. KILGORE, OCT. 3, 1914. 399

sentative is given the sole power to try and punish offenses
committed by American citizens in China.

Now the power to "punish" necessarily includes the power
to make punishment effective. Indeed the act of 1848 ex-
pressly confers, as we have seen, the power

"to issue all such processes as are suitable and necessary to carry
this authority into execution."*

And among these processes is the commitment or mittimus
which fixes the place where the penalty shall be served. By
long usage this court and its predecessors have been ac-
customed, at their discretion, to fix that place outside of
China, to wit, in the United States. Thus in the informa-
tion before us it is alleged that the prisoner, whom the
accused is charged with having allowed to escape, had been
convicted by this Court and was being transported "to the
State Prison at San Quentin, California," for the service
of a sentence which, as a part of its records, this court
may take judicial notice of. It imposed

"imprisonment for a term of three years to be served in the jail
for American convicts in China at Shanghai, China, until provision
is made by the government for his transfer to some prison in the
United States."

It will not be questioned that this was a proper exercise
of this court's power, derived in succession from the con-
sular courts, to impose punishment for offenses committed
"in China." But it involved the exercise of jurisdiction
elsewhere. For this court's authority over the prisoner did
not cease with his departure from the territory of China;
it continues until the expiration of the sentence; for the
latter might be modified after the prisoner's incarceration
in San Quentin prison and such modification could be ef-
fected by this court alone. And should this Court see fit,
after such incarceration, to require the prisoner's return to
the Prison for American convicts at Shanghai, it would
have such authority; for the mittimus may be changed at
any time within the duration of the sentence.^"

•9 U. S. Stats, at Large, Ch. 150, sec. 2, p. 276.

'° Kingen v. Kelley, 3 Wyo., 566, 15 L. R. A., 177, Mrhere the original
commitment by the Wyoming court w^as to the Illinois Penitentiary
and nearly a year later, by a new mittimus, the prisoner was returned
to Wyoming for incarceration.

400 I EXTRATERRITORIAL CASES.

This continuous jurisdiction over the prisoner while in-
carcerated elsewhere, and while en route to and from such
place of confinement, necessarily includes a measure oi
authority over his custodian or such jurisdiction would be
futile. For the prisoner can be reached and controlled only
thru such custodian. Such authority would seem to be
especially strong where the custodian is also the official
keeper of a prison within the territorial as well as actual
jurisdiction of the Court,

Similarly, jurisdiction to impose punishment and to make
it effective necessarily includes jurisdiction to prevent inter-
ference therewith on the part of others. Since this court
may require the transfer of a prisoner to the United States
for the service of sentence and may control and direct his
movements while en route there it would seem strange
indeed if it could not prevent or punish such interference
with that control as would terminate it entirely. It is no
answer to say that such punishment may be imposed by
some other court. The treaty confers upon this court the
jurisdiction to punish and such jurisdiction is not complete
unless it includes the power to enforce punishment and
prevent its evasion.

Under the Act of 1848 "the laws of the United States"
were "so far as is necessary to execute said treaty" (of
1844) "extended over all citizens of the United States in
China." '' This provision was repeated in the Act of 1860 ^-
and has been incorporated into the Revised Statutes of the
United States."

Now if our treaty undertakings to punish crimes com-
mitted in China cannot adequately be "executed" without
the service of penalties elsewhere, and if such service cannot
be adequately insured without the exercise of jurisdiction
to prevent interference therewith, then "the laws of the
United States '■' '•' * so far as is necessary" to such
exercise are "extended" here. Thus if the prisoner or his
custodian while on the "high seas" en route to such other
place of punishment commit some offense which entirely

9 U. S. Stats, at Large, Ch. 150, sec. 4, p. 276.
'■ 12 U. S. Stats, at Large, Ch. 179, sec. 4, p. 73.
' U. S. Rev. Stats., sec. 4086.

UNITED STATES V. KILGORE, OCT. 3, 1914. 401

frustrates the penalty imposed by this court and we can
find a "law of the United States" governing offenses so com-
mitted it would seem to be our duty to apply it here. Such
a law is the following:

"The trial of crimes committed on the high seas, or in any place
out of the jurisdiction of any particular state, shall be in the district
where the offender is apprehended, or into which he may first be
brought."

This law, indeed, was already in existence long before
the negotiation of any of the treaties above mentioned.
It was enacted as early as 1790,^* carried in to the Revised
Statutes ^^ and now forms part of the Federal Judicial
Code.i«

III.

Thus far we have discussed the question from the stand-
point of the treaties and the acts of Congress providing
for their execution. We may now consider it in the light
of other legislation. It is true as pointed out by defendant's
counsel that this court has succeeded to the jurisdiction
heretofore "exercised by United States consuls and minis-
ters."^^ But its organic act nowhere provides that this
court shall exercise no other powers. It is also true that
its jurisdiction must "be exercised in conformity with said
treaties (with China) and the laws of the United States
now in force with reference to the American consular courts
in China," and that all of its "decisions, judgments, and
decrees * * * shall be enforced in accordance with
said treaties and laws." ^^ But this would seem to put a
limitation not upon the extent of jurisdiction but upon the
mavner of its exercise. Its jurisdiction must be "exercised
in conformity" and its decrees "enforced in accordance with
said treaties and the laws." In other words there must

"1 U. S. stats, at Large, Ch. 9, p. 114.

" Sec. 730.

*'Act of Congress of March 3, 1911, sess. Ill, 36 U. S. Stats, at
Large, Ch. 231, sec. 41.

" Act of Congress of June 30, 1906, 34 U. S. Stats, at Large, Pt.
I, 814, sec. 1.

^8 Id., sec. 4.

14008 O. W. 26

402 I EXTRATERRITORIAL CASES.

be no exercise of jurisdiction and no enforcement of decrees
in such a manner as will infringe our treaties with China
or the United States laws relating thereto. But there is
nothing in this limitation or elsewhere in its organic act
which prohibits the court from exercising jurisdiction which
may have been conferred by other acts of Congress pro-
vided always that such exercise conforms to the treaties and
the laws relating thereto.

To illustrate let us take the so-called "White Slave Act"
of 1910 which provides inter alia

"That any violation of any of the above sections two, three, and foar
shall be prosecuted in any court having jurisdiction of crimes within
the district in which said violation was committed, or from, thru,
or into which any such woman or girl may have been carried or
transported." "

It has already been held -" that this court has juris-
diction over offenses under this act, and that the original
violation might have taken place in the United States and
yet the offender be subject to trial and punishment here.

Another example may be found in the following familiar
provision :

"For any crime or offense against the United States, the offender
may, by any justice or judge of the United States, or by any com-
missioner of a circuit court to take bail, or by any chancellor, judge
of a supreme or superior court, chief or first judge of common
pleas, mayor of a city, justice of the peace, or other magistrate,
of any State where he may be found, and agreeably to the usual
mode of process against offenders in such State, and at the expense
of the United States, be arrested and imprisoned, or bailed, as the
case may be, for trial before such court of the United States as by
law has cognizance of the offense." "

This provision has been held applicable to the courts of
a territory ^^ and to those of the District of Columbia ^^

"Act of Congress of June 25, 1910; 36 U. S. Stats, at Large,
Pt. I, Ch. 395, sec. 5, p. 826.

'" U. S. V. Thompson, ante, p. 261.

*'U. S. Rev. Stats., sec. 1014.

"U. S. Haskins, 3 Sawy, 262, 26 Fed. Cases, 213, 217. Cf. Kerr
V. Shine, 136 Fed. 61.

" Benson v. Henkel, 198 U. S. 1, 49 L. ed., 919.

UNITED STATES V. KILGORE, OCT. 3, 1914. 403

tho it will be seen that no such court is expressly mentioned
in the section. Can it be fairly doubted that it is equally
applicable to this court and that its judge is a "judge of the
United States" within the meaning of the section? Yet it
would clearly require this court, or rather its judge, to
exercise jurisdiction in the preliminary stages of the trial
of a crime originating entirely outside of the territorial
limits of China.

Still another illustration is found in the recent "Opium
Act" of Congress, which contains the following provision :

"That any person subject to the jurisdiction of the United States
who shall, either as principal or as accessory, receive or have in his
possession, or conceal on board of or transport on any foreign or
domestic vessel or other water craft or railroad car or other vehicle
destined to or bound from the United States or any possession
thereof, any smoking opium or opium prepared for smoking, or who,
having knowledge of the presence in or on any such vessel, water
craft, or vehicle of such article, shall not report the same to the
principal officer thereof, shall be subject to the penalty provided
in section two of this Act." '*

It will be seen that no court is specified as having juris-
diction to enforce the penalty but the Attorney General
has nevertheless ruled -^ that the courts of the Panama
Canal Zone have such jurisdiction. There would seem to
be no valid reason for including them and excluding this
court, tho the act, as will be seen, covers offenses on the
high seas and even on foreign vessels.

The truth is that the criminal jurisdiction of this court
is dual ; i. e., over offenses committed in China (by which is
meant, however, more than its precise territorial limits)
and offenses committed elsewhere. The former is derived
entirely from the treaties with China by which the latter's
jurisdiction has been surrendered. Jurisdiction over of-
fenses of the second class is derived not from the treaties
but from the Acts of Congress which has unlimited power
to confer upon this court jurisdiction over outside offenses;
for this can in no way affect the sovereign rights of China

"Act of Congress of Jan. 17, 1914, sess. II, 38 U. S. Stats, at
Large, Pt. II, Ch. 9, sec. 4, p. 276.

"• Opinions of Attorneys General, XXX, 271 (July 14, 1914) .

404 I EXTRATERRITORIAL CASES.

nor enlarge the jurisdiction surrendered by the treaties.
And this court's power to take cognizance of crimes com-
mitted outside of Chinese territory may arise not only from
the Acts of Congress passed since the establishment of the
court but by pertinent acts previously passed which accord-
ing to a well settled doctrine came into force as to this court
upon its organization. As was said by Mr. Justice Brown
in considering the applicability to the District of Columbia
of the section of the Revised Statutes last above quoted :

"It is true that this section was taken from the judiciary act of
1789 and at that time the District of Columbia was not in ex-
istence. But the same remark may be made of the dozens of dif-
ferent districts which have been formed since this act was passed.
The fact that the District of Columbia was not created out of ter-
ritory theretofore unorganized, but was simply carved out of the
district of Maryland, is of no more importance than would be the
creation of a new district, rendered necessary by an increase of
population or business, of which almost every Congress produces
an example. Even if this were not so, the re-enactment of this
section of the judiciary act in 1873, as sec. 1014 of the Revised
Statutes, clearly extended the word 'district' to the District of
Columbia as well as to all other districts created since the judiciary
act." ="

Long previously the same doctrine had been announced
by Hillyer, District Judge, as follows:

"The act of 1789 divided the United States into thirteen districts.
Since that time, as states have been admitted, new districts have
been organized and so far as I can ascertain it has never been
questioned that the general provisions of the judiciary act applied
to the new districts without any express enactment of them for
such districts; altho by a narrow construction of the language it
might be held to apply only to those courts and districts organized,
and to which cognizance of crimes is given, by that act." "

We are not restricted therefore in ascertaining the juris-
diction of this court over offenses committed elsewhere to
the recent enactments ; amj pertinent Act of Congress, prior

'• Benson v. Henkel, 198 U. S., 1, 49 L. ed., 919, citing United States
v. Bowen, 100 U. S., 508, 25 L. ed., 631; Arthur v. Dodge, 101 U. S.,
36, 25 L. ed., 949; Cambria Iron Co. v. Ashburn, 118 U. S., 57, 30
L. ed., 61, 6 Sup. Ct. Rep., 929.

-' U. S. V. Haskins, 3 Sawy, 262, 26 Fed. Cases, 216.

UNITED STATES V. KILGORE, OCT. 3, 1914. 405

or subsequent, conferring jurisdiction upon a class of courts
to which this by a fair interpretation belongs, is applicable.

IV.

The new Judicial Code of the United States provides
that "the district courts shall have original jurisdiction

* * * of all crimes and offenses cognizable under the
authority of the United States." ^^ This, however, should
be read in connection with a later section of the same
code which provides that in cases like those just enumerated
"the jurisdiction vested in the courts of the United States

* * * shall be exclusive of the courts of the several
states." -^ In other words the purpose of these two pro-
visions is to segregate the jurisdiction of "courts of the
United States" from that of "courts of the several states."
Hence it would appear that the phrase "district courts" as
used in the first of the two sections above referred to is to
be taken not in its technical sense but as including Federal
courts of criminal jurisdiction as opposed to state courts.
Thus the courts of the territory of Alaska, tho not
"district courts" in the technical sense,-" are nevertheless
vested with jurisdiction "of crimes and offenses cognizable
under the authority of the United States" as well as those
defined by the local laws.^^ And, as we have just seen,^^
the Attorney General rules that offenses under the "Opium
Act" are cognizable in the Panama courts tho they are not
"district courts" in the same sense as those of America
proper. So it is held that Courts of the territories are
"courts of the United States" for many purposes ^^ and
likewise those of the District of Columbia ^* and the Phil-

"^Act of Congress of March 3, 1911, sess. Ill, 36 U. S. Stats, at
Large, Pt. I, Ch. 231, sec. 24, p. 1091.

'' Id., sec, 256, p. 1160.

="' U. S. V. Newth, 149 Fed. 302.

''U. S. V. Doo-noch-keen, 2 Alaska, 624.

'^ Supra note 25.

^^ In re Osterhaus, 18 Fed. Cases, 894; U. S. v. Haskins, 3 Sawy,
262, 26 Fed. Cases, 213, citing also Hunt v. Paolo, 4 How (U. S.),
589, 11 L. ed., 1115, where "the territorial court of Florida is spoken
of as a court of the United States."

"' Ex Parte Norvell, 20 D. C, 353 ; Noerr v. Brewer, 1 MacArthur,
(D. C), 508.

406 I EXTRATERRITORIAL CASES.

ippines.'^ In the act creating this court it is expressly-
designated as "a United States court" and the same phrase-
ology is used several times in the body of the Act.-^" In the
light of the foregoing decisions it would hardly seem unwar-
ranted to classify this court in the same category as those
there involved and to conclude that it shares, in a proper
case, the general jurisdiction conferred upon United States
courts "of crimes and offenses cognizable under the au-
thority of the United States." The following language of
Judge Hillyer in one of the cases above cited seems espe-
cially apropos here:

"So far, then, as these courts have exclusive jurisdiction over
crimes committed against the United States they may, it seems to me,
be held to be included in the term 'courts of the United States' as used
in the thirty-third section of the judiciary act. I cannot see that any
sound rule of construction is violated by so doing. The act is remedial
in its character and I do not find any good ground for giving it so
narrow and technical a construction as is contended for by the de-
fendant, the practical effect of which must be to leave offenses com-
mitted in a territory where they cannot be reached or punished if
the offender succeeds in escaping to some state." "

It has been seen that as between state and federal courts
the latter have exclusive jurisdiction "of crimes and of-
fenses cognizable under the authority of the United States."
But there are some such "crimes and offenses" which be-
long not to the exclusive jurisdiction of any particular
United States court but are concurrently cognizable by all

^ "The Government of the Philippines owes its existence wholly to
the United States and its judicial tribunals exert all their powers by
authority of the United States. The jurisdiction and authority of the
United States over that territory and its inhabitants, for all legitimate
purposes of government, is paramount. So that the cases holding that
the same acts committed in a state of the Union may constitute an
offense against the United States and also a distinct offense against
the state do not apply here, where the two tribunals that tried the
accused exert all their powers under and by authority of the same
government — that of the United States." Grafton v. United States,
206 U. S., 333, 51 L. ed., 1084.

"Act of Congress of June 30, 1906, sess. I, 34 U. S. Stats, at
Large, Ch. 3934, sees. 1, 2, 4.

" U. S. v. Haskins, 26 Fed. Cases, 217.

UNITED STATES V. KILGORE, OCT. 3, 1914. 407

of a certain class. Such is the effect of the provision al-
ready quoted -- regarding offenses committed on the "high
seas." They are cognizable by the United States court
"in the district where the offender is found or into which
he is first brought" and it is conceded that the accused was
"brought" to China immediately after leaving Japan.

Here again the term "district" seems to be used not as
confined exclusively to the judicial districts enumerated in
said code. For the Court of Appeals ^'-^ has treated Hawaii
as a "district" within the meaning of this provision altho
it is not CO enumerated. So a similar use of the word "dis-
trict" in a section above quoted from the Revised Statutes
has been held ^'^ to include the District of Columbia, tho
it is no more a judicial district than is the territorial juris-
diction of this court. It is true that the District Court
for the Western District of Washington has held *^ that
Alaska w^as not a "district" within the meaning of the
section above quoted; but we do not find that this decision
has ever been confirmed on appeal and its reasoning seems
hardly to harmonize with the other decisions last above
cited and which are not referred to therein. But we re-
gard as conclusive on this point the decision *^ of the Su-
preme Court that extraterritorial tribunals like this have
jurisdiction concurrent with Federal Courts in the United
States over offenses on the "high seas" where that charged
is alleged in the information to have been committed. By
admitting that averment, as defendant does in his demurrer,
the jurisdiction is conceded.

VI.

The amended information also

"accuses said Willis B. Kilgore of the crime of misprision of felony:
in that said Willis B. Kilgore at Shanghai, China, heretofore and on

" See notes 14-16, supra.

"'Kerr v. Shine, 136 Fed., 61.

'"Benson v. Henkel, 198 U. S., 1, 49 L. ed., 119, construing U. S.
Rev. Stats., sec. 1014.

" U. S. V. Newth, 149 Fed., 302.

■*■■ In re Ross, ante, p. 40, where the facts as to the scene of the
crime appear to have been exactly parallel.

408 1 EXTRATERRITORIAL CASES.

or about May 30, 1914, having knowledge of the actual commission
by said prisoner, Peter A. Grimes, of the crime of escape as alleged
in the first count hereof, said escape being a felony cognizable by
the courts of the United States, did wilfully and feloniously conceal
said crime and did not as soon as might be disclose and make known
the same to some one of the judges or other persons in civil or military
authority under the United States: against the laws of the United
States and against the Act of Congress of March 4, 1909, Chapter
321, Section 146 (Federal Penal Code), 35 Statutes at Large, 1088,
1114."

The demurrer to this count is based on the ground that it

"does not charge any offense at all in that it charges defendant of
misprision of a felony committed by himself and with not disclosing
matters which if true as alleged in said information the disclosure
of which would incriminate or tend to incriminate defendant."

It is urged that the phrase "as alleged in the first count
hereof" renders the charge one of misprision of the de-
fendant's own felony; but it will be seen that the crime
referred to "as alleged in the fiist count" is "the crime of
escape" and not the crime of "allowing a prisoner to escape."
Now it is true that the first count charges the last named
offense but we think it is also clear therefrom that the pris-
oner in question did "escape" and that in so doing he
committed a crime which is the one referred to in the
second count. The language used may be somewhat ambig-
uous but no objection was made on that ground and as
the demurrer goes entirely to its legal sufficiency we cannot
regard it as well taken.

Upon the whole, therefore, we find the amended informa-
tion sufficient as against the objections urged and the de-
murrer is accordingly

OVERRULED.

II. ON THE MERITS.
[Filed October 24, 1914.]

SYLLABUS.
(By the Court.)

1. ESCAPE: The crime of aiding a prisoner to escape is one of ex-
treme gravity since it completely frustrates the administration
of justice.

UNITED STATES V. KILGORE, OCT. 24, 1914. 409

2. Id. : Evidence. Defendant's own statement found to show that he

voluntarily "helped" his prisoner to escape; no extenuating cir-
cumstances apparent.

3. Id. : Penalty imposed according to precedent cited but with due

consideration of the plea of guilty.

F. E. Hinckley, Esq., Dist. Atty., for the prosecution.

Messrs. Jemigan & Fessenden, by Mr. Fessenden, contra.

LOBINGIER, J.:

The accused pleads guilty to "the crime of allowing pris-
oner to escape; in that * * * having custody of one
United States prisoner, by name Peter A. Grimes, * * *
said Willis B. Kilgore being then and there the prison-
keeper of the prison at Shanghai, China, for American
convicts * * * ^[^ voluntarily and feloniously allow
and suffer said prisoner to escape."

The seriousness of the offense thus admitted cannot be
too strongly emphasized. In the Spanish Penal Code it is
ranked second in the category of derelictions of public of-
ficials. In this particular case it has enabled a notorious
second offender to evade the punishment which the law
provides, frustrated the work of this court and its officers
and rendered its entire machinery futile. If such offenses
were to become general the courts might as well close in so
far as effective administration of the criminal law is con-
cerned.

It was contended in argument in defendant's behalf that
the offense involved no "moral turpitude." To this we are
unable to agree. For one who is placed in a position of
trust and confidence, as is the keeper of a prison, to betray
it voluntarily and deliberately as the accused admits having
done seems to us an extreme breach of a highly fiducial
relation, much more extreme, indeed, than would be similar
infidelity toward a private employer ; for the interests of the
state and the public are more important than those of an
individual. Defendant himself recognizes this for in his
letter of June 9th, which we shall notice presently, he says,
"I was not faithful to the trust put to me."

Then too there is involved the element of treachery to-
ward the Government ; for the deliberate frustration of the

410 I EXTRATERRITORIAL CASES.

course of justice is hardly less detrimental in time of peace
than the interruption of military operations of one's own
country in time of war.

The age of the defendant is urged by way of extenuation.
But he is certainly far beyond the age of criminal respon-
sibility, having attained his legal majority and being en-
titled to exercise the right of suffrage. He was deemed
old enough by those who knew him to assume the respon-
sibility of warden of the prison and it would, we feel,
e<^tablish a very dangerous precedent to impose a nominal
punishment merely on the ground that the defendant is not
older.

It is finally urged that the accused was in some way
"tricked" by the prisoner whom he allowed to escape and
that this was accomplished by the latter as a means of re-
venge. There would need not to be any such motive as
revenge for the prisoner's desire to escape must have been
well known to this accused and he had ample reason to be
on his guard against any such attempt on the prisoner's
part, independently of any retaliatory motive. It appears
too that on a former occasion the accused prevented the
escape of another prisoner by shooting him so that he was
not without experience in such emergencies nor without
resources to meet them.

In connection with determining the penalty defendant
has submitted certain documents which he desires to have
considered in his behalf. These are in no sense competent
evidence and could not have been admitted over objection
at the trial had there been one. But in view of the defend-
ant's plea of guilty we have considered these documents for
the purpose for which they were offered. First among
them is a statement by the accused, prepared the day before
his plea, in which he purports to describe as follows how the
prisoner escaped:

"I remember walking with him from the hotel toward the trans-
port, he carrying his grip. Thinking the facts over later, I cannot
recall that any Japanese police was with us. The next I knew I
woke up in the train with Mr. Grimes shaking me. As to what
happened in the meantime, I only know what Grimes said, which
I can believe, knowing what I am capable of when under these
spells. Upon waking up he told me that I had taken another man

UNITED STATES V. KILGORE, OCT. 24, 1914. 411

aboard the transport and delivered him for himself, Grimes, and
had secured receipts for his delivery."

There are other documents tending to show that the
accused has been subject to "spells" tho the naval medical
record reports "no history of epilepsy."

Now if it were clearly shown that the accused while in
one of the "spells," or in a condition of semiconsciousness,
allowed his prisoner to escape it would have a very im-
portant bearing upon the penalty. Indeed, if that fact
could have been shown, no penalty would be needed for it
could afford a sufficient defense to the charge. But that
no such condition was provable by competent evidence is
clear from the fact that the accused has pleaded guilty to
an information, which, as already seen, charges that he
"did voluntarily * * * allow and suffer said prisoner
to escape." If this was not defendant's voluntary act, i. e.,
if it was committed unconsciously — then he should not
(and, of course, would not) have pleaded guilty.

Besides defendant's above quoted statement there is
another document emanating from him which should be
equally considered. Rather it would seem entitled to much
higher consideration for it was written at a time much
nearer to the occurrences, when the details were more clearly
in defendant's mind and to a party who was in no position
to extend clemency and was therefore not designed by the
defendant to place himself in as favorable a light as possible
but was more in the nature of a frank and open confession.
From the standpoint of the rules of evidence also this
letter is more entitled to consideration than any of the other
documents ; for, being a statement against his own interest,
it would have been admissible at the trial had there been
one.

In this letter written while en route from Yokohama
to Shanghai, on June 19th last, the accused in the course
of five pages of self-disparaging statements declares:
"On May 18th I took Grimes to the transport at Nagasaki.
There I helped him to escape."

It will be seen that no claim appears here that defendant
was tricked, hypnotized or drugged by the prisoner. It
is a straightforward confession that the defendant "helped

412 I EXTRATERRITORIAL CASES.

him to escape" — deliberately, knowingly and voluntarily.
We are unable therefore to find in this or the other features
of the case already mentioned the extenuating circum-
stances claimed.

II.

It has been suggested that the defendant would benefit
most by being sent to his home and placed under its in-
fluences. But even assuming that there is any way of insur-
ing his detention there (and as we have seen he has attained
his majority and can go where he pleases) the deterrent
effect of punishment would be lost by this or any other
nominal form of it. In the letter above quoted the de-
fendant expresses his intention "to take my medicine like
a man" and we cannot but believe that in the long run it
will be much better for him to do this and learn his lesson
so that it may not be forgotten than to receive a nominal
sentence under a mistaken idea of clemency. We have
every desire to assist him and his friends in their laudable
effort to start him on a new and better course of conduct
but we do not believe this would be accomplished by im-
posing a penalty so light that it would leave little or no
impression. Moreover, it is not the defendant alone who is
to be considered in this connection. All similar offenders
will expect a like nominal sentence if defendant is given
one, and rightfully, for sentences must be imposed without
discrimination in accordance with the doctrine of equality
before the law. And if all sentences were nominal society
would have little protection against crime.

III.

There is, however, one fact which is worthy of consid-
eration and that is the defendant's plea of guilty. Tech-
nically this is not an extenuating circumstance ^ but by
almost universal custom in American courts it is usual to
impose a lighter sentence upon a plea of guilty than after
stubborn resistance and trial.

The Federal Penal Code provides that one who voluntarily
suffers such prisoner to escape, "shall be fined not more

•U. S. V. Molo, 5 Phil., 414; U. S. v. Ablaza, 1 Phil., 740.

UNITED STATES V. KILGORE, OCT. 24, 1914. 413

than two thousand dollars, or imprisoned not more than
two years, or both." -

We cannot think that this provision contemplates any-
such nominal punishment as has been suggested here.
Under some systems the penalty is graded according to
that of the prisoner who was allowed to escape. Thus the
Spanish Penal Code provides ^

"The public official guilty of connivance in the escape of a pris'
oner whose conveyance and custody may have been entrusted to him
shall be punished —

1. In case the fugitive should have been finally sentenced to un-
dergo any penalty, with that lower than the same by two degrees,"
etc.

"Where the prison was not broken and no actual violence done
the court did not inflict punishment exceeding that frovt which the
offender had escaped.'^ *

The nearest exact precedent which we have been able to
find is a Pennsylvania case '" where a jailer who had per-
mitted prisoners to escape was sentenced to imprisonment
for five months and to pay a fine of one hundred and fifty
dollars. The accused appealed from the sentence which
was affirmed in this language:

"The plaintiff ought to congratulate himself upon the moderation
of the sentence, instead of complaining of its severity. It was
unquestionably within the power of the Quarter Sessions to have
sentenced him to the penitentiary for any period not exceeding two
years. His offence was a most seriovis one, and his punishment
comparatively light."

In view of the defendant's plea of guilty we have con-
cluded to follow that precedent so far as the term of im-
prisonment is concerned but to supplement its conceded
insufficiencies by a substantial fine.

The defendant is accordingly sentenced to five months'
imprisonment in the prison for American convicts at
Shanghai, China, to pay a fine of five hundred ($500)

'Fed. Penal Code, sec. 138.

^ Spanish Penal Code, art. 358.

' 16 Cyc, 547, citing State v. Doud, 7 Conn., 384.

° Weaver v. Commonwealth, 29 Pa. St., 445.

414 I EXTRATERRITORIAL CASES.

dollars, United States currency, together with the costs of
this prosecution, and to stand committed until both are
paid.

As to the second count the information is dismissed in
accordance with the oral motion of the District Attorney
in open court and defendant's cash bail ordered returned.

IN THE UNITED STATES COURT FOR CHINA.

United States v. Edward C. LeClair alias Edward C.

Burke.

[Cause No. 404; filed November 2, 1914.]

SYLLABUS.
(By the Court)

1. ROBBERY: EVIDENCE examined and found sufficient to show be-

yond reasonable doubt that defendant is guilty as principal
in the crime of robbery.

2. Id. : Degrees. The common law classification of principals into

those of the first and second degrees has not been abolished
by the Federal Penal Code and as defendant was not the
actual perpetrator of the abstraction which constitutes the gist
of robbery he must be treated as a principal in the second
degree.

3. Id. : Extenuation. By the prevailing, rule, mental aberration,

produced by the voluntary use of cocaine, is treated as affect-
ing criminal responsibility in the same way as that resulting
from the similar use of intoxicating liquors; i. e., the crime
committed under such circumstances is not excused but it is
classified as of lower degree and the punishment is reduced
accordingly.

4. Id. : Penalty imposed with application of two extenuating cir-

cumstances.

F. E. Hinckley, Esq., Dist. Atty., for the prosecution.
H. D. Rodger, Esq., for the defense.

LOBINGIER, J.:

This is a prosecution for the robbery of a Chinese pawn-
shop on Woosung Road in Shanghai, between 8 and 9 p. m.
on October 18, 1914. Three Chinese testify that two for-
eigners, defendant being one, both armed with revolvers,

UNITED STATES V. LECLAIR, NOV. 2, 1914. 415

entered the shop, that the other one passed behind the
counter to the cash drawer, opened it and abstracted its
contents, while defendant, with the handle of his revolver,
struck the shop manager and prevented him from rallins:
aid.

Defendant, in reply to a question as to whether he was
in such a pawnshop on the night in question, said "I might
have been but I do not remember having been there."
There is other evidence, however, that he was seen in
company with an American named Long shortly before and
shortly after the time in question as well as evidence
tending to show that Long was "the other foreigner" men-
tioned by the Chinese witnesses. Defendant's participa-
tion in the affair as described by them cannot, therefore,
seriously be doubted.

The provision upon which the information is based reads
as follows :

"Whoever, by force and violence, or by putting in fear, shall
feloniously take from the person or presence of another anything
of value, shall be imprisoned not more than fifteen years." ^

The same instrument also provides that

"Whoever directly commits any act constituting an offense de-
fined in any law of the United States, or aids, abets, counsels, com-
mands, induces, or procures its commission, is a principal." "

"The effect of the section," says Judge Morrow =* "is to
abolish the distinction between principals and accessories in
offenses defined in the laws of the United States." Hence,
under the testimony above quoted, the accused must be
treated as a principal in the crime of robbery for he aided
and abetted in its commission by being present, helping to
intimidate the inmates of the pawnshop and preventing the
escape of at least one bj^ assaulting him. But Blackstone
makes this distinction :

^Fed. Penal Code, sec. 284.

' Id., sec. 332.

"Rooney v. U. S., 203 Fed. 928. Cf. People v. Bliven, 112 N. Y.
82, 19 N. E., 639. The result v^as partially effected by the Act of
Congress of March 3, 1899, sess. Ill, 30 U. S. Stats, at Large, Ch.
429, tit. I, sec. 186.

416 I EXTRATERRITORIAL CASES.

"A man may be principal in an offense in two degrees. A prin-
cipal, in the first degree, is he that is the actor, or absolute per-
petrator, of the crime; and, in the second degree, he who is present,
aiding and abetting the fact to be done." *

We find no provision of the Federal Penal Code which
expressly abolishes this classification of principals and in the
absence of such a provision v^^e must assume that the
classification is retained, especially as it is well recognized
in the criminal jurisprudence of the several states.^

Now it will be seen from the definition contained in the
Penal Code that the principal act in the crime of robbery
is the taking. "Whoever * * * shall feloniously take,"
etc., shall be punished. But it will be seen from the tes-
timony that the accused was not the perpetrator of that
act tho he aided and abetted it. We therefore find the
accused guilty, as a principal, of the offense charged but in
the second degree.

II.

The accused testifies that on the night in question and
shortly before the time when the affair took place he took
injections of cocaine four different times amounting in
quantity to about a half teaspoonful and that he also drank
a considerable quantity of intoxicating liquors. That he
is addicted to the use of these stimulants is also the tes-
timony of a former business associate as well as of the
prison warden who says that the defendant has asked for
morphine during his incarceration and seemed nervous and
depressed without it.

The appearance of defendant and his indifferent, not to
say dazed, attitude, during the trial strengthens the claim
that he is an habitual user of cocaine.

Dr. Davis, the surgeon of the "Elcano," states his pro-
fessional opinion that the amount of cocaine and intoxicat-
ing liquors which the accused claims to have taken on the
night in question would render him subconscious and with-
out a realizing sense of what he was doing.

* Commentaries IV, 34, citing Hale's Pleas of the Crown, 1, 615.
Cf. 12 Cyc, 184, 185.
' 12 Cyc, 185, note 44.

UNITED STATES V. LECLAIR, NOV. 2, 1914. 417

On the strength of this testimony defendant's counsel
urges that his client was not criminally responsible and,
with commendable evidence of research, produces a Texas
case '^ holding that one who, as a result of using cocaine and
morphine, was unable to understand what he was doing
could not be found guilty of an assault with intent to murder
because he would be incapable of conceiving such intent.

But Texas appears to be the only jurisdiction where this
doctrine prevails. Elsewhere the rule seems to be that
mental incapacity produced by the use of cocaine has no
different legal effect than where it results from using in-
toxicating liquors. Thus in an opinion which affirmed a
conviction of a murder where a defense not unlike this
was interposed the court says :

"Parties who persist -in subjecting themselves to the persistent use
and habit of taking alcoholic drink or other poisonous compounds
and drugs, cannot expect the same forbearance and immunity from
punishment as those bereft of reason by the act of God. It is ad-
missible and proper to show the immoderate use of drugs or whiskey,
not to excuse crime, but to illustrate the mental condition, with a
view to fixing the degree of the crime as it depends upon deliberation
and cool malicious purpose." '

This appears also to be the general American rule as
regards the commission of this crime of robbery while
under the influence of intoxicants.'' Even in the Ohio de-
cision " cited by defendant's counsel the most that the court
would say (and that was obiter) was that

"If the accused was so drunk as not to know what he was doing,
the fact of intoxication may 4oubtless be given in evidence for what
it is worth for the purpose of showing that he did not intend at the
time to do what he in fact did do."

III.

In determining the penalty then there are two circum-
stances which the accused seems fairly entitled to have
considered as extenuating: (1) the fact that he is a prin-
cipal in the second degree and (2) that he was apparently

•Edwards v. State, 38 Tex. App., 386; 39 L. R. A., 262.

'Wilcox V. State, 94 Tenn., 106; 28 S. W., 312.

' 12 Cyc, 173, Note 63.

* Nichols V. State, 8 Ohio St., 435.

14008 O. W.-^27

418 I EXTRATERRITORIAL CASES.

in a state of mental aberration which, tho voluntarily
produced, lowers the grade of punishment in spite of the
fact that it does not excuse the crime. Applying these two
extenuating circumstances we fix the penalty at imprison-
ment for three years.

The defendant is accordingly sentenced to serve such
term beginning in the prison for American convicts in
China at Shanghai, China, and there continuing until
adequate provision is made by the authorities for his assured
transfer to some proper and lawful place of confinement
in the United States where the balance of such term shall
be served. The accused is further adjudged to pay the
costs of this prosecution.

IN THE UNITED STATES COURT FOR CHINA.
hi re Dorothy E. L. B. McGhee's Estate.

[Cause No. 406; filed November 28, 1914.]

SYLLABUS.
(By the Court.)

1. DISTRICT ATTORNEY: APPEAKANCE. It is proper, and in some

instances necessary, for the District Attorney to appear on
behalf of the United States in a civil cause over which the ju-
risdiction of this court is in doubt.

2. CITIZENSHIP: FORFEITURE. Sec. 4 of the Act of 1907 authorizes

a foreign woman, naturalized by marriage and who "resides
abroad," to retain her citizenship by registering at an American
consulate within one year after the termination of such mar-
riage; but does not expressly make that method exclusive nor
in terms penalize, by loss of citizenship, the failure so to register.

3. Id. : Id. It seems also doubtful whether the word "abroad," as

used in said section, applies to residence in this extraterritorial
jurisdiction.

4. Id. : Children, tho born abroad, of an American father acquire

his citizenship.

Joseph W. Rice, Esq., for petitioner.

F. E. Hinckley, Esq., U. S. Dist. Atty., contra.

LOBINGIER, J.:

A petition is here presented by Mrs. Amy Buckley praying
for letters of administration upon the estate of her daughter,

IN RE MCGHEE'S ESTATE, NOV. 28, 1914. 419

Dorothy E. L. B. McGhee, who is alleged to have died at
Shanghai, China, on November 6, 1914, and to have been
a citizen of the United States. The District Attorney ap-
pears "on behalf of the United States" and files an answer
in which he "denies the allegation in the first paragraph of
said petition that said deceased was at the time of her
death a citizen of the United States." This answer the
petitioner moves to strike out on the ground that it is not
filed in behalf of a proper party defendant or intervener
and that the District Attorney is not authorized to appear
in such a proceeding.

It is well settled, however, "that interest in the estate is
not required" ^ in order to entitle a party to oppose a
petition like this. In California, where a public adminis-
trator is provided, he may contest such an application in
the public interest.- Such we take it is the position of the
District Attorney in this case. He is required by law to
appear in "all civil actions in which the United States are
concerned" ^ and we think they are concerned in seeing that
the jurisdiction of this court is not exercised improperly
nor in cases to which it does not lawfully attach. More-
over, if the District Attorney were simply a member of
the bar, without official status, he would be entitled as an
amicus curiae * to appear for the purpose of pointing out
any impropriety or infringement of the public interest in
granting such a petition. It would seem to be in no way
more prejudicial to the applicant for him to appear officially.
The motion to strike out the answer is therefore denied.

II.

Coming now to the merits of the issue raised by the
pleadings we find from the evidence that the deceased was
born in Australia about 1893. The mother testifies that

^ 19 Encyc. Pleading & Practice, 831.
' Estate of Healy, 122 Cal., 162.

• Rev. Stats., sec. 771, made applicable here by the organic act es-
tablishing this court, 34 U. S. Stats, at Large, Pt. I, 814, sec. 6.

* "An amicus curiae is one who, voluntarily or on invitation of the
court, instructs the court on a matter of law concerning which the
latter is doubtful or mistaken, or informs him of facts, a knowledge
of which is necessary to a proper disposition of the case." 2 Cyc, 281.

420 I EXTRATERRITORIAL CASES.

her husband, the deceased's father, was an American,
coming to Australia "eight or nine years" before their
marriage. At the age of eighteen the deceased was married
to one Charles B. McGhee in Manila, P. I., on August 21,
1911, by the Rev. A. E. Chenoweth, a minister of the Meth-
odist Episcopal Church, in the presence of two American
witnesses. It is conceded by the District Attorney that Mr.
McGhee was an American citizen and consequently by her
marriage to him the deceased would have become a nat-
uralized American even had she previously been British ^
and regardless of what her occupation may have been."

It appears, however, that Mr. McGhee died at Shanghai,
China, on April 27, 1913, more than a year and a half
preceding the death of his widow. But it was long ago
held by competent authority that American citizenship ac-
quired by a foreign woman thru marriage was not lost
merely by the latter's termination.

"L., a woman, originally a British subject, went to Canton, in
China, and opened a hotel. By the British regulations, British
subjects were required, under certain penalties, to take out a license
for such purpose. There was no American regulation on the sub-
ject. L. claimed to be an American citizen under sec. 1994, Re-
vised Statutes of the United States, which provides that any woman
'who is now or may hereafter be married to a citizen of the United
States, and who might herself be lawfully naturalized, shall be
deemed a citizen.' She had lately, however, been divorced from
her American husband by the judgment of the United States con-
sular court at Niuchwang. The consul at Canton inclined to the
opinion that she had by the divorce lost her American citizenship.
The minister at Peking expressed the opinion that the divorce had
simply dissolved the marital relations, and that she still remained
a citizen of the United States. The Department of State aproved
this opinion, stating that L., by her marriage, became an American
citizen, both by British and by American law; that she had not lost
her American nationality by any method recognized by American
law; that according to British law an English woman, who by
marriage acquires foreign citizenship, must, in order to reacquire
her original nationality upon her husband's death, obtain a certif-
icate therefor from the British authorities; that it was not believed
that any different rule would be applied wl^ere the parties were
divorced, and that, as L. claimed American citizenship, it was as-

' U. S. Rev. Stats., sec. 1994.
Ex parte Grayson, 215 Fed., 449.

IN RE MCGHEE'S ESTATE, NOV. 28, 1914. 421

sumed that she had not taken any steps to reacquire British
nationality, and that there was no conflicting claim to her al-
legiance." '

In 1907 Congress passed an act which contained the
following provision :

"That any foreign woman who acquires American citizenship by
marriage to an American shall be assumed to retain the same after
the termination of the marital relation if she continue to reside in
the United States, unless she makes formal renunciation thereof
before a court having jurisdiction to naturalize aliens; or, if she
resides abroad, she may retain her citizenship by registering as such
before a United States consul within one year after the termina-
tion of such marital relation." *

It will be seen that the first part of this provision merely
reaffirms the doctrine stated in the preceding excerpt while
the latter portion provides a special method of retaining
citizenship in case the party "resides abroad." The District
Attorney contends that this method is exclusive in such cases
and that as deceased failed, so far as appears, to register
before an American consul within a year of her husband's
death she lost her citizenship. But the language of the
statute is not exclusive in terms; it does not provide that
no such woman shall retain her citizenship except by so
registering. Rather does it seem to be cumulative in its
meaning, indicating a new mode by which the right re-
cognized before the enactment of the statute may be exer-
cised and made a matter of record.

By using the word "may," moreover, Congress appears
to have intended this new mode to be no more than per-
missive. It would have been very easy to have said "shall."

Finally the act seems to be in derogation of the common
law and therefore subject to strict construction.^ And

"Where the statute not only affects a change in the common law,
but is also in derogation of common rights, it must be construed with
especial strictness. Examples of such statutes are those which
operate in restraint of personal liberty or civil rights," etc.^"

' Moore, Int. Law Dig., Ill, 459, citing Mr. Uhl, Acting Sec. of
State, to Mr. Denby, March 17, 1894, For. Rel. (1894), 139.

' 34 U. S. Stats, at Large, sess. II, Pt. I, Ch. 2534, sec. 4, p. 1229.

' 36 Cyc, 1179.

^"Id.

422 I EXTRATERRITORIAL CASES.

To hold otherwise would be to construe the statute as
abrogating, without a trial, a right which previously existed,
i. e., of retaining citizenship without registration — and such
a construction should not be indulged unless the language
clearly requires it. Indeed there would seem to be some
doubt as to the validity of a statute so providing, for it has
been held that

"While a citizen may expatriate himself with the consent of his
state, express or presumed, no act of legislature can denationalize
a citizen without his concurrence." "

If, however, we were to construe the requirement of
registration as exclusive, and therefore indispensable,
the word "abroad" as used in the statute would still
have to be so interpreted as to include this case. But clearly
the term is not intended to embrace all other residence than
"in the United States." The parties in question were mar-
ried in the Philippines which, like Porto Rico, are tech-
nically not part of the United States tho territory thereof.'^
If the deceased had continued to reside there after her
husband's death the requirement of registration with an
American consul could not possibly have been complied
with because there is necessarily no such official in the
Philippines. Hence the term "abroad" must be given a
wider meaning than as apposed merely to continental United
States ; it includes at least some place over which the United
States Government exercises jurisdiction, and, in so far as
its own citizens are concerned, the territory of China is
such a place.

The State Department which, as an authority in such mat-
ters is hardly less final than the courts, has already drawn
a distinction between residents in ordinary foreign territory
and that subject to extraterritorial jurisdiction.

"By her marriage to a citizen of the United States Mrs. Con-
stantine became vested with his rights as a citizen of the United
States. Upon his death she might revert to her original citizenship
or retain her American citizenship. She elects to do the latter,

" Burkett v. McCarty, 10 Bush (Ky.), 758 declaring unconstitu-
tional an act providing expatriation as a penalty for rebellion, to
be applied without trial.

" Downes v. Bidwell, 182 U. S., 244, 45 L. ed., 1088.

IN RE MCGHEE'S estate, NOV. 28, 1914. 423

and the fact that she is dwelling in Turkey does not militate against
her doing so, the Department having repeatedly ruled that the
limitations of permitted residence abroad do not apply to that
country.' It was therefore held that she was entitled to a passport
as a citizen of the United States." "

And there is a fundamental reason for this distinction.
For if a woman who has acquired American citizenship by-
marriage only, elects after the termination of such marriage,
to reside in a country over which the United States Govern-
ment exercises no jurisdiction whatever, she may well be
presumed to have elected to become subject to the jurisdic-
tion of that country and consequently it is reasonable to re-
quire some overt and express act on her part to negative such
presumption. But when she is residing in territory in
which, tho foreign, she is still subject to the laws and juris-
diction of the United States no such presumption arises and
the requirement of registration is logically not so necessary.

One of the witnesses called by the District Attorney
testified that the deceased, less than a year after her hus-
band's death, informed him that she had been married to
a Danish subject in Hongkong and showed him a certificate
apparently supporting that statement. The witness was un-
able to give any particulars regarding the certificate, as to
the authority under w^hich it was issued, or even as to the
names it contained. Moreover, the avowed purpose of the
statement, as explained by the deceased, was to forestall the
exercise of any authority over her as an American citizen
by the District Attorney. In other words it was a self-
serving declaration and as such was inadmissible ^^ because
hearsay. It matters not that the statement might now be
against the interest of this petitioner ; it is the interest of
the declarant which constitutes the test of hearsay ^^ and
the interest of the declarant thus quoted was, or at least was
believed to be, plainly subserved by making the statement.
If, therefore, timely objection had been made the evidence
would necessarily have been excluded. But while evidence

" Moore, Int. Law Digest, III, 459, citing Secretary Hay to Amb.
Choate, No. 530, Jan. 14, 1901, MS. Inst. Gr. Br., XXXIII, 534.
" 16 Cyc, 1202 et seq.
"Id., 1217.

424 I EXTRATERRITORIAL CASES.

tho incompetent may sometimes be considered if admit-
ted without objection still in view of the uncertain character
of this testimony, the inability of the witness to remember
essential particulars and the strong motives of self interest
on the part of the declarant in making the statement, we
feel that it would be unsafe to base a finding of a second
marriage thereon especially as the petitioner testifies that
her daughter declared to her about the same time that she
had not married again.

There is moreover one item of evidence, undisputed, which
resolves in favor of our jurisdiction whatever doubt may re-
main. As already stated the petitioner testifies.that her hus-
band, the deceased's father, was an American by birth. The
District Attorney in his brief urges "that this was discre-
dited ;" but we are unable to see how. The testimony is ex-
plicit that the father came from America and that he was
not known to have changed his nationality. It must be pre-
sumed, therefore, that the same continued ^° and that the
deceased was not only the wife but the daughter of an Amer-
ican citizen. It is well established that ''the foreign-born
children of a citizen are themselves citizens.' '

In view of these considerations we are unable to find that
the jurisdiction of this court should be withheld and accord-
ingly we must declare the estate of the deceased entitled to
administration here. Letters will accordingly issue upon
the production of a good and sufficient bond the amount of
which will be fixed after a showing is made as to the assets
of the estate.

IN THE UNITED STATES COURT FOR CHINA.
Robert W. Sexton, Plaintiff, v. S. R. Price, Defendant.

[Civil action No. 136; filed December 26, 1914.]

SYLLABUS.
(By the Court.)

1. CONTRACTS: UNLAWFUL OBJECT. Under the doctrine prevailing
in this jurisdiction money loaned to promote an object pro-
hibited by law cannot be recovered.

" In re Bascom, ante, p. 378, and cases there cited.
" 7 Cyc, 139, note 21, citing many cases.

SEXTON V. PRICE, DEC. 26, 1914. 425

2. Id. : Id. : Maxim. In such cases the court applies the maxim in pari

delicto melior est conditio possedentis and leaves the parties
where it found them.

3. Id. : Id. : Evidence. The lender's knowledge of such unlawful ob-

ject may be inferred from circumstances if sufficient to put him
on inquiry.

4. Id. : Id. : Laches. Long delay beyond the period of the statute

of limitations, in beginning suit, tends to cast suspicion on the
claim and to support a plea of settlement.

5. Id. : Id. : Id. Evidence held sufficient to shift to the plaintiff the

burden of proof which was not met by him.

Messrs. Fleming & Davies by Mr. Fleming, for plaintiff.
Messrs. Jernigan & Fessenden by Mr. Fessenden, contra.

LOBINGIER J.:

This is an action upon an instrument of which the fol-
lowing is a copy:

Tls. 15,000.00 Tls. 15,000.00

May 4th, 1909.

Thirty days after date for value received I promise to pay R. W.
Sexton the sum of fifteen thousand taels (Tls. 15,000.00).

S. R. Price."

The complaint or petition filed July 22, 1914, sets forth
the above instrument, alleges non-payment and prays re-
covery of the full amount. The answer admits the execution
of the instrument

"but alleges that it was mutually understood and agreed between
plaintiff and defendant at the time of making of said alleged note
that same was not intended to operate as, or have the effect of, a
promissory note as between the parties thereto.

2. And defendant further alleges that at the time of making of
said alleged note there was an open and running account between
plaintiff and defendant and that plaintiff was indebted to defendant
on said account in a large sum of money, the exact amount of which
had not then been definitely determined and agreed upon, but which
was greatly in excess of the amount stated in said alleged note, and
that it was mutually understood and agreed between plaintiff and de-
fendant that said alleged note was only intended to operate as, and
have the effect between the parties of, a receipt or as evidence of a
pajrment by plaintiff to defendant in respect of the aforesaid open
account between plaintiff and defendant.

3. That the aforesaid open account was settled and discharged
by mutual consent of the said parties on or about the 3rd day of
September, 1910.

426 I EXTRATERRITORIAL CASES.

4. That said alleged note is without consideration and void and
that defendant is not indebted to plaintiff in the sum stated in plaintiff's
petition or in any sum or amount whatsoever."

The replication or reply is in effect a general denial.

Upon these issues the parties went to trial, each testify-
ing in his own behalf. Plaintiff claims that in 1905 he
entered into partnership with defendant in conducting a
gambling and road-house known as "The Alcazar" which
they purchased jointly each contributing one-half of the
price. Later he says they took over a similar but more
extensive concern known as "The Alhambra", in conducting
which, plaintiff states, "I furnished the money, I done the
work and got 50 per cent of the net profits" (p. 61) the
rest being paid to defendant.

Plaintiff also claims (p. 63) to have advanced the latter
as much as Tls. 50,000 for which plaintiff says (p. 64)
he accepted a note (Ex. 1) purporting to have been executed
not by defendant but by one Frank Gordon, December,
1907, but of which plaintiff says (p. 64) "I cannot explain
it. It has been dated back alright". Later, he says, (p.
66) he loaned defendant Tls. 15,000 for which he took the
note here sued on (Ex. A.)

Defendant's version of their transactions differs ma-
terially from plaintiff's. The former claims that instead
of being a, partner in the business of "The Alhambra" he
sold it, including the unincumbered furniture and lease
which had been acquired from the said Gordon, to plaintiff
for Tls. 60,000, that he received payments from time to
time on the purchase price but that instead of giving receipts
therefor in ordinary form he executed non-negotiable notes,
of which that sued on is one. His reason for so doing,
he explains by saying: "I did not want to show that I was
connected with the business of 'The Alhambra' or have to
explain I was not connected with it."

It will be seen that whichever version is accepted we
have h^re set forth a most peculiar and unusual course of
dealing. We may agree with plaintiff's counsel that it is
remarkable that his client should agree to pay defendant the
sum of Tls. 60,000 for an investment which had cost de-
fendant according to his own statement about $25,000. But

SEXTON V. PRICE, DEC. 26, 1914. 427

it seems hardly less remarkable that plaintiff who, as he de-
clares, furnished all the capital and labor for the enterprise
should then give defendant half the profits and should fur-
ther loan him sums amounting in the course of time to more
than defendant's alleged purchase price.

It seems very strange that defendant should have effected
a sale to plaintiff without taking any written evidence there-
of but hardly more strange than that plaintiff should have
advanced to defendant a sum nearly as large taking only the
unsecured note of a third party who, as plaintiff claims,
failed to make any payments ; or hardly more strange than
that plaintiff should conduct a partnership with defendant
without any written evidence of a partnership agreement,
with no partnership account and with books which were of
so little importance to the business that they were subse-
quently sold at auction.

It is certainly unusual to execute a receipt in the form
of a promissory note but it is also unusual for a creditor
to accept as evidence of indebtedness for an amount as large
as Tls. 15,000, an unsecured, non-negotiable instrument such
as that here sued on. Since the instrument was originally
given for only thirty days the absence of interest might not
have been so unusual but such absence clearly makes it
more difficult to explain the long delay in seeking to enforce
payment.

II.

Nevertheless for the purpose of resolving the first defense
let us assume that plaintiff's account of the relations be-
tween the parties deserves the greater credit and disregard
entirely defendant's testimony as to the origin of the note
and the numerous questions of fact raised thereby.

We have, then, a situation in which plaintiff himself had,
at the time of the note's execution, been engaged in gam-
bling as a business during nearly four years at least. Since
in Shanghai he began as defendant's employee in 1905 (p.
56) and since he does not appear to have engaged in any
other business in the interval, it seems fair to assume that so
large a sum as Tls. 15, 000, accumulated by 1909, must have
been the product of his gambling operations. Indeed plain-
tiff practically says this when he testifies (p. 93) :

428 I EXTRATERRITORIAL CASES.

"That is the time the trouble commenced. That was the thirty
thousand taels in the bank roll in 1909. Before that the house had
been paying well. Mr. Price got one hundred and fifteen thousand
dollars and 1 took out of the house bank eighty thousand dollars
of my own. I believe the bank roll started with thirty thousand
dollars."

For the sum in question was only one of a series of ad-
vances which plaintiff claims to have made to defendant
and was preceded by loans aggregating no less than Tls.
50,000 (p. 85).

And not only was the note sued on given by defendant
as claimed by plaintiff, for money realized in their joint
gambling operations ; it was also, according to the same au-
thority (pp. 67, 93, 94), borrowed for, and actually used
in, another gambling house.

Now all this was in direct violation of statutes governing
Americans, in this extraterritorial jurisdiction. The
Act ^ framed by Congress for the District of Columbia and
in force here under the doctrine of the Court of Appeals -
penalizes gambling and fixes a maximum penalty of im-
prisonment for five years.

It is well settled, in the federal courts at least, that
money loaned to promote an object prohibited by law can-
not be recovered. As was said by the Supreme Court *
in denying recovery on a note evidencing such a loan :

"The whole doctrine of avoiding contracts for illegality and im-
morality is founded on public policy. It is certainly contrary to
public policy to give the aid of the courts to a vendor who knew that
his goods were purchased, or to a lender who knew that his money
was borrowed, for the purpose of being employed in the commission
of a criminal act, injurious to society or to any of its members."

Under one of the above cited acts of Congress the
United States District Court * for Alaska denied relief to

*Act of Congress of March 3, 1901, 31 U. S. Stats, at Large,
Ch. 854, sec. 865. Cf. Act of March 3, 1899, Sess. Ill, 30 U. S. Stats,
at Large, Ch. 429, Tit. I, sec. 152.

= Biddle v. U. S., ante, p. 120.

'Hanauer v. Doane, 12 Wall. (U. S.), 342, 20 L. ed., 439. Cf.
Tatum V. Kelley, 25 Ark., 209, 94 Am. Dec, 717; Ruddell v. Landers,
25 Ark., 238, 94 Am. Dec, 719.

'M'Ginley v. Cleary, 2 Alaska, 269. Cf. Boddie v. Brewing Co.,
204 111., 352, 68 N. E., 394, rendered under a peculiar statute.

SEXTON V. PRICE, DEC. 26, 1914. 429

one who sought to recover real estate conveyed in pay-
ment of money lost at gambling, and said:

"The plaintiff was the proprietor of the saloon and the operator of
the dice game in which he lost his property. He now asks a court
of equity to assist him in recovering it and this raises the question,
may a gambler who runs a game and loses the bank roll come into a
court of equity and recover it? He conducted the game in violation
of law, conveyed his premises to pay the winner's score, and now
demands that the court assist him to regain it. Equity will not
become a gambler's insurance company, to stand by while the gamester
secures the winnings of the drunken, unsuspecting, or weak-minded in
violation of the law, ready to stretch forth its arm to recapture his
losses when another as unscrupulous or more lucky than he wins his
money or property. Nor will the court in this case aid the defen-
dant."

For the maxim which governs in such cases is, In pari
delicto melior est conditio possidentis.^

In Maryland,'' whose common law supplies that of the
District of Columbia and hence to some extent that of this
jurisdiction, a note given in consideration of money loaned
for "making books" on horse races in another state was
declared void because,

"Both the plaintiff and defendant testified that the note was given
for the defendant's contribution to the capital of the partnership
formed between them to carry on the so-called business of betting
on horse races in Virginia."

In an early Ohio case ' the rule was applied against a
carpenter who had "assisted in constructing," as appur-
tenant to a coffee house, a nine-pin alley whose maintenance
was prohibited by statute. "It is an erection sid generis,
whose ordinary use in such a place is unlawful," said Lane,
/, "It was right for the court to charge the jury he could
not recover for this work."

The foregoing are but a few of the many authorities on
this point and are selected for purposes of illustration
from jurisdictions whose law most resembles that prevail-
ing here or which apply it in cases most resembling thi&.
Plaintiff's counsel does not seriously question the doctrine

' See Broom's Legal Maxims, 721, 729, 730.

' Spies v. Rosenstock, 87 Md., 14, 39 Atl. Rep., 268.

' Spurgeon v. McElwain, 6 Ohio, 442, 27 Am. Dec. 266 (1834).

430 I EXTRATERRITORIAL CASES.

but contends " that all the circumstances attending this loan
point very strongly to the lack of knowledge on Sexton's
part as to the purpose for which it was intended".

We do not find, however, that plaintiff himself makes
quite so strong a claim. Examined by his counsel he tes-
tified regarding the note in question (p. 67) :

"Q. What was the purpose of that loan?

A. He didn't tell me at the time.

Q. Did you learn afterwards? A. Yes, sir.

Q. What was the money used for? A. He gave Mr. Gordon the
money to go over and open "Jessfield" in opposition to me.

Q. "Jessfield Inn"? A. Yes, sir.

Q. Was that in opposition to you? A. Yes, sir.

Q. That place, "Jessfield Inn," was run in opposition to "The Al-
hambra"? A. Yes, sir."

Here it will be seen plaintiff makes no claim of ignorance
as to the purpose of the loan but merely that defendant
"didn't tell" him. Our examination of the evidence leads
us to the conclusion that it was not necessary for defend-
ant to "tell" plaintiff in order that he should know.

On cross-examination the latter testified (p. 93) :

"Q. You did not know what he wanted to do with the money?
A. No; not at that time.

Q. How did you find out what he did with the money?
A. He paid it to Gordon who fixed up the place and everybody
joked me that I bought it."

Now the only mention of any "time," and that several
questions earlier, was of "the time * * * -when you
entered into this alleged partnership."

Later the cross-examination reverts to this point as
follows (p. 94) :

"Q. You say Mr. Price wanted this money, this fifteen thousand
taels, to buy that place and start it up with Mr. Gordon?

A. Yes, sir. I found it out afterwards that that is what he wanted
the money for and used it for.

Q. And this was at a time when as ycm claim there was a part-
nership understanding existing between you two — you were partners?

A. Yes, sir.

Q. And Mr. Price wanted to go into "Jessfield" as you understand
it and open the place and go in and start opposition to you?

A. Yes, sir.

SEXTON V. PRICE, DEC. 2 6, 1914. 431

Q. That is your explanation of what Mr. Price wanted to dd with
this money you say you loaned him, this fifteen thousand taels?
A. Yes, sir."

This is all we find from plaintiff on this point and in
none of it does he state categorically and unequivocally
that he was ignorant of defendant's intentions when the
latter borrowed the money. Much less does plaintiff de-
clare that he really believed the money destined for any
other purpose than gambling.

On the other hand we find circumstances which in our
view "point very strongly" the other way.

1. Plaintiff makes much of the fact that he and defendant
were partners. Their relations began the day after plain-
tiff's arrival in Shanghai (p. 56) and continued until after
the "Alhambra" was closed (p. 84) which was several
months after the note sued on was given (p. 84). From
the first the association was very close for plaintiff says,
of defendant, (p. 56) "I saw him every day and night and
rode home with him in the morning when I had finished
work." Is it reasonable to suppose that after relations
like this had continued nearly four years plaintiff would
not be in a position to understand, even without express
information, the purpose of so large a loan?

2. For it must be remembered that during all this period,
according to plaintiff, defendant had pursued no other
vocation. As the former puts it (p. 98) "we were all gam-
bling." Indeed plaintiff's counsel sought to show (p. Ill ;
cf. 134) that defendant had followed that pursuit before
coming to Shanghai. What then was the natural inference
as to his intended use of the Tls. 15,000? He certainly
needed not that amount for personal expenses.

3. The note was non-negotiable. Contrary to his counsel's
impression this fact did not escape plaintiff's attention for
he answered affirmatively the question (p. 98) "You saw
it was a non-negotiable note, did you?" as well as that
propounded by his counsel (p. 99),

"The reason, Mr. Sexton, why you were not so particular as to
whether this note was a negotiable or ncto-negotiable note was that
you and Mr. Price were partners?"

432 I EXTRATERRITORIAL CASES.

But why should the fact of his partnership with defend-
ant induce him to accept a non-negotiable note unless there
were reasons for not wishing it to pass outside the part-
nership? On the supposition that it was tainted with
illegality the form of the note is easily explained for no
mere assignment would cut off that defense.

4. The note was unsecured. This circumstance becomes
more significant when considered in connection with No. 2
above. For if, as plaintiff claims, defendant's only occu-
pation was that of a gambler, plaintiff" must have relied
upon success in gambling for the repayment of the loan.
And here it should be noted that it is not necessary, in order
to require the application of the doctrine now considered,
that plaintiff should have known the precise form of illegal
use to which the money was destined. He need not have
known, e. g., that defendant planned to put it in the "Jess-
field Inn." It was sufficient if plaintiff knew, or had reason
to believe, that the fund was to be used in gambling some-
where. It cannot be overlooked, however, that plaintiff
and defendant had jointly opened two gambling houses in
succession. Plaintiff refers to the third as a rival house
but since, as he also testifies (pp. 84, 92, 93, 98) that the
"Alhambra" was then prosperous, why should defendant
seek to interrupt the prosperity he shared by starting a
rival? Is it not more reasonable to infer that the opening
of the third was merely a continuation of the policy which
led to the acquisition of the "Alhambra" by the same in-
terests which controlled the "Alcazar"?

It is of course true that an innocent lender is not pre-
cluded from recovery merely because the borrower uses the
money for an unlawful purpose. But proof of knowledge
on the lender's part need not be direct. Here as elsewhere
the law is satisfied with circumstantial evidence. Nor do
the courts necessarily require proof of actual knowledge;
cognizance of facts which should put a reasonable man on
inquiry are deemed sufficient.

Thus in an action upon a note given for the purchase,
of liquors by a resident of Maine where such sales are
prohibited it was contended that there was no proof of
unlawful intent. But the court held,

SEXTON V. PRICE, DEC. 26, 1914. 433

"That the only reasonable and legitimate inference to be drawn
from the evidence is that the liquors were intended for unlawful sale
in this state. The defendant was a hotel keeper. The value of the
liquors purchased was $537, for which he gave his note for $437 and
his check for $100. It does ncrt appear that the defendant was au-
thorized by law to sell liquors in this state and it is hardly to be
supposed that he would purchase liquors to such an amount for his
personal use. We think that the facts above stated, in the absence of
any explanation, warrant the conclusion that the liquors were in-
tended to be unlawfully sold; and we have no doubt that such was
the fact." '

Here the amount of the purchase was considered a suf-
ficient circumstance to warrant a denial of recovery; yet
it was hardly so significant as the amount of the alleged
loan in this case.

The Indiana Appellate Court,^ in upholding a similar
judgment in an action for the price of liquors considered
the intention to dispose of them unlawfully sufficiently
proved by the fact that plaintiff's agent was aware that
defendant was operating without a license and in violation
of law, a situation more than paralleled in the case at bar.

There is also an early decision ^^ of this court in which
brokers were held privy to the illegal intent of their prin-
cipals in a wagering contract because of circumstances and
facts which were deemed sufficient to put them on inquiry.

Finally we have found that the money claimed to have
been loaned to defendant almost certainly constituted part
of the proceeds of a gambling business operated, as plain-
tiff claims, jointly with defendant. In a sense, therefore,
this is, from plaintiff's standpoint, a suit by one partner
to recover an overpayment to him of the earnings of a
partnership avowedly organized for the sole purpose of
conducting a business which the law brands as criminal.
And, as was declared in case ^^ already cited,

"It requires neither argument nor authority to show that, if the
thing to be done is illegal, the contract of co-partnership for the

' Oakes v. Merrifield, 93 Me. 297, 45 Atl. 32.

° Terre Haute Brewing Co. v. Hartman, 19 Ind. App. 596, 49 N. E.
864.

"Toeg & Read v. SufFert, ante, p. 112.

" Spies V. Rosenstock, 87 Md. 14, 39 Atl. Rep., 268.

14008 O. W. 28

434 I EXTRATERRITORIAL CASES.

purpose of doing that thing is equally illegal, for otherwise it would
only be necessary to form a co-partnership or a corporation in order,
with impunity, either to violate the law, or prosecute a business con-
trary to the public policy of the state."

It is objected that this defense of illegality is not pleaded
and that it is inconsistent with the defenses actually set
up. We are not sure that the averment in paragraph 4
of the answer "that said alleged note is without considera-
tion and void" is not sufficient to raise the defense that
it is void for any reason. But in any event it is well
settled that where the evidence discloses such a condition
the court should take notice of it sua sponte. As was said
by the Illinois Supreme Court :^-

"The parties could not, whether by mistake or design, compel the
court to adjudicate upon their alleged rights growing out of a contract
void because against public policy or in violation of public law, by the
simple process of narrowing their pleadings. The court itself had
the right to know the nature of the contract it was called upon to
enforce, and to deny all relief, where it appeared that such contract
was in violation of law or the public policy of the state, whether
so alleged in the pleadings or not. To hold otherwise would sub-
ordinate the courts to the ingenious devices of men engaged in
illegal and even criminal transactions and compel them to carry out
in the solemn forms of law, and by its resistless power, transactions
which the same law had pronounced criminal and void."

III.

Thus far we have considered the case from the stand-
point of the first defense, adopting plaintiff's theory in
relation thereto. But in our judgment the second defense
finds more corroboration than the first.

Defendant claims the execution of an instrument of set-
tlement between the parties long after the one sued on was
given. He is unable to produce the document, expressing
his belief that it has been abstracted, but two entirely dis-
interested and credible witnesses (pp. 41, 47) testify to
having seen, no more than two years ago, a paper pur-
porting to be such an act of settlement and containing one
or more signatures which they, or at least one of them,

" Wright V. Cudahy, 168 111. 86, 48 N. E. Rep., 39.

SEXTON V. PRICE, DEC. 2 6, 1914. 435

recognized as including that of the attorney who also tes-
tifies (p. 37) to having drawn it. Now, if this instrument
were fabricated it must have been done before it was seen
by these witnesses and when there was little apparent rea-
son for resorting to such a desperate expedient, since there
is no evidence of an attempt by plaintiff to enforce pay-
ment then or earlier.

Plaintiff denies that he entered into a settlement but
he seems equally certain that he never acknowledged pay-
ment of the Gordon note (Exhibit 1) altho the receipt (Ex-
hibit 2) purports to be signed by him. Plaintiff's counsel
contends that this receipt is a forgery. But plaintiff, while
testifying said (p. 90) in reply to the

"Q. I ask you now if that is youi* signature?

A. I won't say it is not mine,

Q. Will you swear that it is not your signature?

A. No; I won't swear it is not mine.

Q. It looks like it, don't it?

A. Yes sir; it does."

A former bar boy at the "Alhambra" also identifies the
signature as plaintiff's (p. 136) .

This claim of settlement seems to offer a better explana-
tion, than any other, of the delay in suing. Here is a
note executed, it is agreed, on May 4, 1909, yet no suit was
brought until July 22, 1914, more than five years after its
maturity. Plaintiff's first explanation is (p. 99) that de-
fendant was absent. But the note matured on June 4,
1909, and defendant seems to have remained in Shanghai
continuously for more than a year afterward (pp. 71, 72) .
Indeed he appears to have been gone only "six or seven
months" (p. 72) and plaintiff states that "he called on me
as soon as he arrived here." Defendant's absence, there-
fore, will not account for the delay.

Another explanation is that (p. 99) "He didn't have any
money." But usually a creditor is the more active when
his debtor is in failing circumstance's and the absence of
money will not interfere with putting a valid claim judg-
ment. Besides there is no evidence from which we could
find that defendant's financial standing has improved since

436 I EXTRATERRITORIAL CASES.

the note matured. Especially in view of the fact that
during all this time plaintiff was receiving no interest on
this relatively large sum, this very long delay in suing
seems almost inexplicable from the standpoint of ordinary
business dealing, if the instrument evidences a live and
bona fide indebtedness.

On the whole then we must find that the record contains
evidence at least sufficient to shift to plaintifi the burden
of proving the validity of the note sued on and that said
burden has not been met. We have accordingly no alter-
native but to apply the maxim above quoted and leave the
parties where they were.

It is therefore considered and adjudged that plaintiff
take nothing by his petition and that neither party recover
costs.

IN THE UNITED STATES COURT FOR CHINA.

Wong Tsung Wai, Plaintiff, v. Robert Russell Endicott,

Defendant.

[Civil action No. 133; filed December 26, 1914,]

SYLLABUS.
(By the Court.)

1. BOUGHT AND SOLD NOTES. Instrument sued on found to con-

stitute one of a series of "bought and sold notes."

2. Id. : The Broker is not usually a party to such instruments. He is

neither entitled to enforce them nor, in the absence of an ex-
press assumption, subject to liability thereon.

3. Id. : Id. : Evidence found to disclose no claim of such assumption.

Messrs. Fleming & Davies, by Mr. Davies, for plaintiff.
(S. Houston McKean, Esq., for defendant.

LOBINGIER, J.:

This is an action to recover damages for breach of an
alleged contract to deliver certain Langkat shares pur-
chased by the defendant on the account of plaintiff. The
defendant, who is a stock broker, admits that he executed
an instrument (Ex. B) of which the following is a copy:

WONG TSUNG WAI V. ENDICOTT, DEC. 2 6, 1914. 437

"R. R. ENDICOTT

Member of the Shanghai Stock Exchange

Purchase Contract Note.

Shanghai, 11th Feb., 1914.
Wong Tsung Wai, Esq.,

Shanghai.
Dear Sir:

I have this day BOUGHT on your account (50) Fifty Shares
in the Langkats, Price (Tls. 35.00) Taels Thirty-five per share.

Cum dividends, new issue of shares, interest and all benefits
accruing and liabilities attaching to the above-named Shares from
the above date.

Payment to be made on delivery of scrip and transfer on March
Settlement Day 1914.

Brokerage i%.

Yours faithfully,

R. R. ENDICOTT,

Broker.

N. B. — Where the Sale and Purchase is made between my own
principals brokerage is charged to both Buyer and Seller.

N. B. — This contract is made subject in all respects to the Rules
and Regulations for the time being and from time to time in force
of the Shanghai Stock Exchange."

Both parties agree that the instrument above set forth
was not, originally, a separate one but was attached to
another of similar phraseology, except that it (Exhibit A)
is addressed to the defendant instead of the plaintiff, is
signed by the latter, contains, immediately following the
address, the phrase "I confirm the purchase by you on my
account," etc., instead of the phrase appearing in a similar
position in Exhibit B, and that, following the word "broker-
age," appears in writing the following ''Contract guaranteed
by H, C. Sim," the latter being conceded to be one Hung
Chuan Tien, mentioned in the answer.

In addition to the foregoing, defendant testifies that there
was also attached to the original instrument a third, signed
by said H. C. Sim, and similar to the other two except that
it was entitled, "Sale contract note," was addressed to the
defendant and contained the phrase, following the address,
"I confirm the sale by you on my account," etc.

438 I EXTRATERRITORIAL CASES.

It is evident that we have here what are termed in the
books "bought and sold notes," and which are defined as

"Documents which are usually delivered by brokers to their prin-
cipals on the conclusion of a contract of sale and purchase, the bought
note being delivered to the buyer, and the sold note to the seller." *

A recognized authority ^ sayls

"When a broker makes a contract he puts the terms into writing
and delivers to each party a copy signed by him. The copy delivered
to the seller is called the sold note, that delivered to the buyer is
called the bought note. The sold note begins 'Sold for A to X' and
is signed 'M broker,' the bought note begins 'Bought for X of A,'
and is signed 'M broker.' But the forms may vary and with them
the broker's liability."

The same authority defines a broker as "an agent pri-
marily to establish privity of contract between two
parties." ^

To such a contract as this, therefore, a broker is not con-
sidered a party; he is merely a middleman whose function
it is to bring the parties together. Hence it was held in
one of the early cases,* in which such instruments as those
here involved were construed, that the broker was not
entitled to enforce any liability arising therefrom. And
clearly if the broker is not entitled to sue on such a contract,
neither is he liable to be sued thereon, for the right and
the liability are reciprocal.

It will be noticed that the instrument upon which plain-
tiff bases his action, and which is known in the books as a
"bought note," contains no express undertaking on defend-
ant's part. On its face it is hardly more than a notice by
defendant that he has bought the shares on plaintiff's ac-
count and that the latter is to make payment on delivery.
The absence of such an undertaking from instruments of
this class has been a subject of pointed comment by the
Courts. In a leading case ^ decided by the Court of Appeal

' 5 Cyc, 860, citing Sweet, Law Dictionary.
= Anson on Contracts (13th ed.), 398 (Huffcutt's ed., 423).
^Id.

* Farlie v. Fenton, L. R. 5 Exch. Cas. 169, where the form of the
instrument was in no way essentially different from this.
' Southwell V. Bowditch, 1 C. P. D., 374, 45 L. J. Rep., 630.

WONG TSUNG V/AI V. ENDICOTT, DEC. 2 6, 1914. 439

in England (where such instruments appear to be most
common and have been most frequently construed) that
eminent tribunal, reversing the judgment of the Common
Pleas Division, held that the broker assumed no personal
liability on an instrument substantially similar to that here
sued upon.

In argument it was objected that unless the defendant
were assumed to have undertaken delivery of the shares
in question the contract would be meaningless and there
would be no reason for entering into it. But that alone
would not be sufficient to fix liability which, as suggested
in the case last cited, must rest upon express language
construed according to its natural meaning.

It is sometimes held,'' indeed, that evidence of usage is
admissible to charge the broker with liability in such cases.
But no such evidence is offered here. On the contrary, the
testimony of Mr. W. A. Reed, Secretary of the Shanghai
Stock Exchange, was to the effect that, according to the
usage of that institution, instruments on blue paper such
as that here sued upon were understood as mere "brokers'
contracts," i. e., those in which the broker brought the
buyer and seller together but assumed no personal liability.

Plaintiff's counsel also endeavors to draw a distinction
between the phraseology of the instrument sued on and
those construed in the authorities here cited. The latter,
as a rule, set out only the "sold note" which is variously
worded "I have this day sold by your order and for your
account;"^ "I have this day sold you on account of"
etc. ; ® "we have this day sold for your account." ^ But we
do not see that the phrase in the note sued on "I have this
day bought on your account" constitutes any greater under-
taking by the broker. Between the phrases ''on your ac-
count" and "for your account" we see no essential difference.

It is further objected that defendant's services as a
broker were unnecessary since the parties in question, both
being Chinese, could have dealt quite as well without him.

* As in Fleet v. Murton, L. R. 7 Q. B. 126, 41 L. J. Rep., 49.
' Southwell V. Bowditch, 1 C. P. D. 374, 45 L. J. Rep., 630.
'Fairlie v. Fenton, L. R. 5 Exch. Cas. 169.
' Fleet V. Murton, L. R. 7 Q. B. 126, 41 L. J. Rep., 49.

440 I EXTRATERRITORIAL CASES.

We have no means of knowing what elements of mutual dis-
trust or otherwise may have entered into the transaction
and the defendant himself states that he does not know
why he was called into it. But it seems to us not nearly
so improbable that he should act as a broker for these
Chinese as that he should assume personal liability for the
delivery of shares (then worth Taels 1,750) on a rising
market for a brokerage commission, as set forth in the
petition, of not more than Taels 8.75.

There is no evidence of any parol assumption of liability
on the part of the defendant. On the contrary, plaintiff tes-
tifies that he understood nothing of what defendant said. If
the latter is liable at all it must be by virtue of the instru-
ment and, as has been seen, it belongs to a class which is
construed by courts of the highest authority as conferring
on the broker neither liability nor right of action.

There was much discussion in evidence and argument of
the question whether defendant notified plaintiff that he
was acting merely as a broker for the seller, H. C. Sim
(Tien). The defendant testified that he did so state to
the plaintiff thru Tien himself who, the plaintiff says,
was his friend and thru whom, as interpreter, he admits
having conducted at least some of the negotiations, tho
he also says that Tien did not interpret such a statement
as the defendant claims to have made. This question might
be important if plaintiff had really established a contract
in which defendant had assumed liability, for the rule which
renders liable the agent of an undisclosed principal applies,
of course, only where the liability has been actually as-
sumed. But here, as has been seen, the written instrument
does not amount to an assumption of liability and there
is no evidence of any parol undertaking. Hence it is not
really material whether defendant expressly disclosed to
plaintiff the fact that he was Mr. Tien's broker, for in the
contract which he signed defendant did not purport to bind
himself personally. If, however, the question were a mate-
rial one, it would seem very dangerous to hold, in a com-
munity where so many languages are spoken, that where
two parties are dealing, neither one of whom speaks the
language of the other, a disclosure of the agency made thru

IN RE ALFORD, JAN. 22, 1915. 441

one who was employed by the other party in at least some
of the negotiations would be insufficient.

On the whole, we have no alternative but to find on the
evidence before us that plaintiff is not entitled to recover
and it is accordingly considered and adjudged that he take
nothing by his petition and that defendant recover his
costs.

IN THE UNITED STATES COURT FOR CHINA.
In re adoption of Alice Alford, a minor.

[Cause No. 415; filed January 22, 1915.]

SYLLABUS.
( By the Court. )

1. ADOPTION: JURISDICTION. This Court has jurisdiction to hear and

determine a petition by American citizens for the adoption of
a minor child.

2. Id. : Consent: Abandonment. It is unnecessary to obtain consent

for such adoption from a parent who has abandoned the child.

3. Id.: Law. The Acts of Congress of June 6, 1900 (31 U. S. Stats.

at Large, Sess. I. Ch. 786, tit. Ill, Ch. IV) and March 3, 1901,
(Id., Sess. II, Ch. 854, sec. 395) prescribing the procedure in
adoption cases, applied.

4. Id. : Evidence found to establish the requisites prescribed by said

act for a decree of adoption.

Messrs. Fleming & Davies, for the petitioners.

F. E. Hinckley, Esq., U. S. Dist. Atty., was given an
opportunity to present objections in behalf of the govern-
ment.

Lobingier, J.:

This is a petition filed by a husband and wife, American
citizens residing in China, for the adoption of a minor
child, now in their custody, and likewise the offspring of
American citizens. Being the first instance, so far as we
have been able to ascertain, where the jurisdiction of this
Court has been invoked for such purpose, it seems advisable,
if not necessary, to consider first the legal basis upon which
such jurisdiction could be exercised.

This Court is invested by its Organic Act with

442 I EXTRATERRITORIAL CASES.

"exclusive jurisdiction in all cases and judicial proceedings whereof
jurisdiction may now be exercised by United States consuls and
ministers." '

The first of these treaties (1844) reserved to our own
Government

"all questions in regard to rights, whether of property or perso7i,
arising between citizens of the United States in China." ^

By the Act of 1860, Congress invested the minister and
consuls of the United States in China

"in regard to civil rights whether of property or person * * *
with all the judicial authority necessary to execute the provisions of
such treaties respectively." '

It will thus be seen that this Court succeeds to jurisdic-
tion which expressly includes all questions respecting the
rights of "perso7i" of American citizens in China. In the
Anglo-American legal system adoption is purely statutory,
having been borrowed from the Civil Law ; * but Black-
stone classifies and discusses ^ the entire law of parent
and child under the title of "Rights of Persons" and his
phraseology, so familiar to American lawyers and law-
makers of the middle nineteenth century, no doubt sug-
gested the language used in both treaty and statute above
quoted. And as the adoption of a child involves not only
rights of its person but also those of the adopting parents,
whose legal status is thereby afi'ected to the extent that a
new relationship is created between them and the child,
it would seem clear that a decree of adoption is nothing
more than the exercise of the jurisdiction so conferred.

We are not restricted, however, in determining this ques-
tion, to treaties and statutes relating exclusively to China.
For the act last quoted further provides that the jurisdic-
tion there conferred

'Act of Congress of .June 30, 1906; 34 U. S. Stats, at Large, Pt.
I, Ch. 3934, sec. I, p. 814.

'8 U. S. Stats, at Large, 597, Article XXV; Malloy Treaties, etc.
I, 203, ante p. 2.

* 12 U. S. Stats, at Large, p. 73, sec. 3; U. S. Rev. Stats., sec. 4085.

- Gray, C. J. in Ross v. Ross, 129 Mass. 243, 37 Am. Rep., 321.

^ Commentaries, Bk. I, Ch. 16.

IN RE ALFORD, JAN. 22, 1915. 443

"in both criminal and civil matters shall, in all cases, be exercised
and enforced in conformity with the laws of the United States, which
are hereby, so far as is necessary to execute such treaties, respect-
ively, and so far as they are suitable to carry the same into effect,
extended over all citizens of the United States in those countries
(including China) and over all others to the extent that the terms
of the said treaties, respectively justify or require." "

Under the doctrine of the Court of Appeals " interpreting
the phrase "laws of the United States" any applicable and
appropriate act of Congress, tho passed originally for
another locality, is in force here if it is "necessary to exe-
cute the treaties" and "suitable to carry the same into
effect."

Now Congress has passed two such acts with reference
to adoption. Upon the District of Columbia Supreme
Court it has conferred jurisdiction "to hear and determine
any petition that may be presented by a person or a hus-
band and wife residing in the District praying the priv-
ilege of adopting any minor child." * Later it conferred
such jurisdiction upon District Court Commissioners in
Alaska, providing a rather detailed procedure for its exer-
cise." There being no other judicial authority here except
this Court to exercise such jurisdiction, it would seem quite
in harmony with the doctrine of the Court of Appeals to
apply these provisions.

II.

Both acts require the consent of "the parents" for such
adoption. In the case before us the petitioners present a
document signed by the mother, whose signature is also
proven aliunde, expressing such consent. The document
is not signed by the father but the testimony is that he
has abandoned the child and, as stated in a work of au-
thority,'"

' 12 U. S. Stats, at Large, Sess. I, Ch. 179, sec. 4; U. S. Rev. Stats.,
sec. 4086.

' Biddle v. United States, ante, p. 120.

* Act of February 26, 1895, Sess. Ill, 28 U. S. Stats, at Large, Ch.
134, p. 687; reenacted, 31 U. S. Stats, at Large, Sess. II, Ch. 854, sec.
395.

'31 U. S. Stats, at Large, Sess. I, Ch. 786, Tit. Ill, Chap. IV,
sees. 21-31.

" 1 Cyc, 922.

444 I EXTRATERRITORIAL CASES.

"where a parent has relinquished all claims on his minor child by
abandonment, his consent to the adoption of such child is unneces-
sary."

Said Code provisions likewise require that the Court be
satisfied

1. "Of the identity and relations of the persons;"

2. "That the petitioner is of sufficient ability and in all respects
a proper person to bring up the child;"

3. "That it is fit and proper that such adoption should take ef-
fect." "

We find from the evidence that all of these requirements
are fully met.

The petition prays also for a change of the child's name,
which is likewise expressly authorized by the statute. ^-

It is accordingly considered and decreed that the said
minor child, heretofore known as Alice Alford, be named
and hereafter known as Elizabeth Parker, and shall be to all
legal intents and for all purposes the child of the petitioners,
Robert H. Parker and Mollie R. Parker, his wife, being as
much their heir at law as if born to said petitioners.

IN THE UNITED STATES COURT FOR CHINA.
H. D. Rodger v. A. R. Eager.

[Cause No. 407; filed January 25, 1915.]

SYIXABUS.

(By the Court)

1. CONTRACTS. Courts will not make contracts for parties but will

interpret and apply contracts which the parties themselves
have made; unless grounds of rescission, like fraud or mutual
mistake, are shown.

2. Id. : Evidence found not to show such grounds as regards either

party in this case.

3. Id. : Id. : Onus Probandi. The party seeking recovery on a con-

tract assumes the burden of showing that his claim comes with-
in its terms.

" 31 U. S. Stats, at Large, sess. I. Ch. 786, tit. Ill, sec. 26.
"Id. sec. 31 (457).

RODGER V. HAGER, JAN. 25, 1915. 445

4. Id. : Id. : Evidence found insufficient to establish that net earn-

ings under the contract in suit reached the amount of $3,000
during the disputed dividend period.

5. Id. : Estoppel. Where the contract required the "statement of

dividend" to be submitted to one party "for approval" and he
not only approved it but later made a general settlement with
the other party, the former cannot subsequently be heard to
question such approval on the ground that the latter furnished
incorrect figures.

H. D. Rodger, Esq., pro se, with whom was Mr. Stirling
Fessenden of Messrs. Jemigan & Fessenden.
Joseph W. Rice, Esq., for defendant.

LOBINGIER, J.:

This is a suit for an accounting under a contract (Ex-
hibit A) of emplojTnent which, after awarding plaintiff
a monthly salary of $220, Shanghai currency, for "manag-
ing the China agency of the International Correspondence
Schools," etc., provides that he shall

"in addition, share in the semi-annual dividends of the China Agency
I. C. S. These dividends shall be declaimed on the first day of January
and the first day of July of each year for the three years of this
agreement, and shall consist of the earnings of the Agency from all
business transacted by it, after deducting any amounts owing by
said Agency and carrying forward such reserve as may be decided
desirable, by party of the first part. Statement of dividend shall
in all cases be submitted to party of the first part (or to R. N. Clark,
his attorney in fact) for approval before becoming payable to any
of the parties having an interest therein. The share of the party
of the second part in each semi-annual dividend so declaimed and ap-
proved shall depend upon the amount of the dividend and shall be
as follows: Fifteen per cent (15%) for semi-annual dividend from
Three Thousand ($3,000) to less than Five Thousand ($5,000) Dol-
lars; Twenty per cent (20%) from Five Thousand ($5,000) to less
than Seven Thousand ($7,000) Dollars; and Twenty Five per cent
(25%) from Seven Thousand ($7,000) Dollars up."

It is this last quoted portion of the contract which gives
rise to the difference between the parties; for it is ad-
mitted that the monthly salary provided for in the first
excerpt was paid in full up to the final termination of plain-
tiff's connection with defendant, which was on October 1,
1914. The bill avers

446 I EXTRATERRITORIAL CASES.

"that the defendant has refused and still refuses to declare div-
idends for the periods January first to July first, 1914, and July first
to October first, 1914, and also refuses to pay the share of this div-
idend which is due and owing to the plaintiff in accordance with the
terms and conditions of the aforementioned agreement."

It will be seen that the contract clause last above quoted
does not entitle plaintiff to a share in any and all dividends
earned by the business but only in those which exceed
$3,000. It is clear, then, that the burden rests upon plain-
tiff to prove that dividends of such an amount were actually
earned. In other words, it is for plaintiff, who invokes
this special provision of the contract, to bring himself
within its terms rather than for defendant to show the
contrary.

Now the only specific testimony as to the earnings of
the business during the first half of 1914 is that of R. S.
Adams who testified to some experience as an accountant,
and that he has examined the books of the company in ques-
tion, and finds the actual earnings, over and above debts
and reserve, to have been no more than $444.12, This re-
sult is likewise embodied into the statement, Exhibit 15A,
whose cash assets, plaintiff assumes, ''are correct." Said
statement shows a credit balance of $3,256.49, one item
($277.80) of which plaintiff claims is improperly included.
It is conceded that this represents fees advanced by stu-
dents for membership in a "fraternity" which disbanded
within the year for which payment was made. Defendant
claims that these fees, being unearned, are returnable to
the students and therefore constitute "amounts owing by
said agency" within the language, above quoted, of the
contract. It moreover gives defendant not a little discre-
tion in fixing the amount of the dividend since he is vested
with power of "carrying forward such reserve as may be
decided desirable" by him and the "statement of dividend
shall in all cases be submitted to" defendant "for approval
before becoming payable." These rather sweeping clauses
may give defendant a very considerable advantage in the
transaction. But we must construe the contract as we find
it, and plaintiff was not obliged to sign it if he thought these
clauses inequitable.

RODGER V. HAGER, JAN. 25, 1915. 447

Two other items of $675.07 and $688.25 are stated by
plaintiff in his brief to represent "instruction department
expenses" for the months of May and June, 1914, which
"will be paid by the home office * * * are merely ad-
vanced * * * and were first earned by this agency."
But we find no proof as to tuhen they were earned and in
fact no showing that they have been earned except the
statement in plaintiff's brief and "Exhibit I" which is
really not evidence but merely a portion of his argument.
Unless these amounts were earned by the agency within
the half year ending July 1, 1914, they would not afford a
basis for computing dividends, under the contract, for that
period.

Assuming however that they tvere so earned and adding
them to the other items claimed by plaintiff, the total still
falls far short of the $3,000 required by the contract be-
fore plaintiff may participate. For then the account
stands :

I $277.80
Items claimed by plaintiff I 675.07

I 688,25

Item admitted by defendant 444.12

Total 2,085.24

Plaintiff however states in his brief (p. 3) that

"in checking thru the claim book he found claims amounting to Gold
$1,951.39 or Mexican $4,878.47 over and above the amount owing
to the Head Office of the School. These claims will be paid in due
course and this Agency will undoubtedly receive credit for all such
claims, therefore they must be looked upon as an asset and reckoned
as such."

He further says (p. 5) :

"This will leave the claims amounting to more than Gold $1,951.39
or Mexican $4,878.47 to be held over to balance the amounts owed
by the Agency (including the $2,757.99 owed to Mr. Clark), and these
claims, together with the other amounts owed to the Agency by
students, will far more than offset any monies owed by the Agency."

And as the beginning of his argument on this point
(p. 2) he states his theory of the way dividends ought to be
computed, as follows :

448 I EXTRATERRITORIAL CASES.

"At the end of each period the entire assets of the Agency were
considered including the monies on hand and in the bank and all
amounts owing to the Agency and all amounts owing by the Agency.
If the amounts owing to the Agency were greater than the amounts
owing by the Agency then this difference would be an earned asset
on which dividends were declared."

But the contract recognizes only "earnings of the agency"
and nowhere authorizes "amounts owing to the agency" to
be added unless they are also "earnings." Now it will
hardly be contended that "claims against the home office"
become "earnings of the agency" before they are allowed.
They may be contingent assets but they are not earnings
until they are either allowed by the home office or judicially
recognized. Otherwise the mere presentation of a claim
would be sufficient. But plaintiff himself admits (p. 3)
that some claims "have been disallowed" and it is not con-
tended that any of those in question have been allowed.
Indeed plaintiff does not refer us to any evidence upon
which his computation is based nor express a belief as to
when these claims will be paid. We can only follow the
contract which requires actual "earnings" and we are un-
able to find from the evidence that, during the first half of
1914, the business in question realized such earnings, to
the amount of $3,000.

II.

As already stated, the relations between the parties were
finally terminated on October 1, and there is considerable
conflict in the testimony as to just what these relations were
during the last three months. Plaintiff admits that he was
absent from defendant's office from before July 1 until
early in September, but says that this was unavoidable on
account of sickness and that from his return during the
first part of September until the end of that month he
continued to act in the capacity provided for in the con-
tract. Defendant denies this and claims that plaintiff's
presence at the office after his return was merely for the
purpose of effecting a settlement and that his duties called
for by the contract were taken over by another. Various
other witnesses were called on this point but we do not con-
sider it necessary to resolve the conflict because under the

RODGER V. HAGER, JAN. 25, 1915. 449

express terms of the contract plaintiff would have been en-
titled to no more than his salary (which, as we have seen, he
received) for the three months in question even had he been

present the whole time. As already quoted, the contract
provides that "he shall have no title to any interest in the
earnings of said agency unless acting as manager for a full
dividend period." This period is elsewhere fixed by the
contract at not less than six months and, as plaintiff does
not claim to have rendered services for more than three
months, it is clear that the clause last quoted applies, and
that he is not entitled to a share of the earnings. Here
again the provision may be urged as rather stringent; but
it must have been apparent to plaintiff when he signed the
contract and, having accepted it, no court can relieve him
from its consequences.

III.

Attached to defendant's answer is a copy of a bond exe-
cuted by plaintiff for the faithful performance of his duties,
of which the answer alleges

"that it was the intention of said parties at the time of making and
executing said Bond that same should be a joint and several obliga-
tion but that thru inadvertence ignorance and mistake same was
made joint in form; and defendant prays that same be changed and
reformed into, and enforced as, a joint and several obligation."

The answer nowhere specifies whose inadvertence, ignor-
ance and mistake were responsible for the phraseolgy of
the bond. But plaintiff's testimony is undisputed that the
instrument was prepared by defendant himself, and there
is no evidence from which we could find that there was a
nfiutual mistake of the parties.

The law on this point is that

"the instrument sought to be corrected must fail to express the real
agreement or transaction because of mistake common to both parties,
or because of mistake on one side and fraud or inequitable conduct
on the other. A mere misunderstanding of the facts is not sufficient
ground for asking reformation."*

Clearly then the evidence here does not furnish grounds
for a reformation of the bond.

' 34 Cyc, 907.

14008 O. W. 29

450 I EXTRATERRITORIAL CASES.

IV.

The answer further alleges that plaintiff is indebted to
defendant in a certain amount, the largest item being one
of $351.29 which, it is alleged,

"constitutes an overpayment made by way of bonus to the plaintiff
under the aforesaid contract of employment, for the period between
July 1 and December 31, 1913, the dividend for that period having
been wrongfully miscalculated by the plaintiff."

It will be seen that this relates to a dividend period
antedating those in controversy in the present suit. More-
over, a payment for that or any other period could only
have been made, as we have seen, after the statement of
dividends had been submitted to and "approved" by defend-
ant. In view of the very liberal advantage which this
afforded defendant for protecting himself against any
"overpayment" due to "miscalculations" by plaintiff, we do
not think he can now be heard to claim a refund on that
ground. When defendant or his attorney in fact "ap-
proved" the payment in question, (as one of them must
have done under the terms of the contract), the correctness
of the payment was thereby ratified and it is no more
subject to recall than is the salary which defendant paid
plaintiff for a period during which, according to the former's
claim, he rendered little or no service and therefore re-
ceived much more than he was entitled to. In other words,
the approval of the payment for the dividend period of
1913 constituted a settlement between the parties. Of
course, if it had been shown that such settlement was
induced by plaintiff's fraud or even that defendant had the
right to rely absolutely upon plaintiff's figures a different
question might arise. But nothing of that nature is alleged
and the contract, as we have seen, vests considerable dis-
cretion with defendant as to whether he shall approve a
dividend. Along with the benefits of this discretion he
must carry also the burdens and having had full oppor-
tunity to exercise it intelligently, it seems not unreasonable
to consider him bound by his act of approval.

Finally when the parties terminated their relations de-
fendant prepared and plaintiff executed a receipt (Exhibit

UNITED STATES V. GRIMES, JAN. 3 0, 1915. 451

B) for an amount which defendant then paid him and
which defendant claims was in full for all services, although
he says it was in excess of the amount actually due. In
view of this testimony we must assume that defendant in-
tended this settlement as a waiver of all claims against
plaintiff for the parties had been negotiating toward such
a settlement during the greater part of September. It is
true that the dividend feature was not included in the re-
ceipt as finally signed, but as defendant disclaimed all lia-
bility by reason of dividends and treated the settlement as
complete from his standpoint, we think it only fair so to
consider it here.

Much the same may be said as to the remaining item
of $31.50 of which, according to the answer,

"defendant says that he is willing that his said claim be set off
against the plaintiff's demand."

There is one item relating to suit cases for which plaintiff
does admit liability but it is not covered by the pleadings
and, as they stand, could not be allowed. The same is true
as regards the claim for telephone bills on the part of plain-
tiff. We cannot go outside the issues raised by the plead-
ings.

It is therefore considered and adjudged that plaintiff take
nothing by his bill and the defendant nothing by his answer,
and that neither party recover costs.

IN THE UNITED STATES COURT FOR CHINA.
United States v. Peter A. Grimes.

[Cause No. 414; filed January 30, 1915.]

SYLLABUS.
(By the Court.)

1. ESCAPE: Ingredients. Under the Act of Congress penalizing the

crime of escape locality is not an ingredient thereof.

2. Id. : Id. Nor is physical restraint necessary to the commission of

such crime.

3. Id. : An officer's custody, actual or constructive, of a prisoner con-

tinues until the latter is delivered to some other proper author-
ity and the relation is not changed, so long as the parties
remain together, by a mere collusive arrangement between them.

452 I EXTRATERRITORIAL CASES.

4. Id. : Penalty. An habitual offender who conspires with his keeper
to escape from custody by impersonating another deserves the
maximum penalty.

F. E. Hinckley, Esq., U. S. Dist. Atty., for the prosecution.
James B. Davies, Esq., for the defense.

LOBINGIER, J.:

The information charges that the accused

"within the jurisdiction of said court, to wit on board the United
States Army Transport Sheridan, at or near the port of Nagasaki,
Japan, on May 20, 1914, being then and there, by said United States
Court for China, for the crime of forgery, under conviction, judg-
ment, sentence and commitment to serve imprisonment of three years,
with useful labor, and costs of prosecution, and being then and there
in course of transfer to a prison in the United States continuing un-
der said conviction, judgment, sentence and commitment, and before
the time had expired for which he had been so convicted, adjudged,
sentenced and committed, wilfully and unlawfully did escape : Against
the laws of the United States."

No question of jurisdiction is raised here, the defendant
waiving-, by his plea of not guilty, jurisdiction of his person,
and accepting as to jurisdiction of the subject matter the
doctrine announced by this Court in a previous opinion ^
which is now made a part hereof. The citizenship of de-
fendant is likewise undisputed.

The only testimony as to the facts constituting the crime
is that of the defendant and his keeper, whose conviction
is recorded in the cause last cited. From this it appears
that the former left Shanghai in the latter's custody on
May 16 to connect at Nagasaki with the transport which
was to convey the prisoner to his new place of incarceration.
Arriving at Nagasaki on the evening of the 17th, three
days in advance of the transport, the two occupied the
same room and were under the observation, if not sur-
veillance, of the Japanese police. The two visited saloons
together, and defendant says that Kilgore, the keeper, told
him that it was a shame that he had to go across to San
Quentin. The idea of substituting another in place of the
prisoner was then suggested, Kilgore says, by way of a
joke. The plan was followed up and on the evening of the

^ U. S. v. Kilgore (on demurrer), ante, p. 395.

UNITED STATES V. GRIMES, JAN. 3 0, 1915. 453

20th Kilgore, the defendant and a third party who had
agreed to act as the substitute, took a sampan from the
wharf to the transport. The prisoner boarded it first,
followed immediately by the substitute and the keeper last.
Leaving the other two on a lower deck, Kilgore went to the
commanding officer of the ship, produced his commitment
and stated that the prisoner was waiting below. The com-
manding officer then summoned the officer of the deck and
directed him to take charge of the prisoner. Said officer
then accompanied Kilgore to the place where the other two
had remained and asked which was the prisoner, whereupon,
according to Kilgore, defendant pointed to the substitute,
while, according to Grimes, Kilgore was the one so to
indicate. The officer then gave Kilgore a receipt for Grimes,
but took the substitute into his custody, whereupon Grimes
and Kilgore left the ship and started the same evening for
Yokohama.

II.

The defense raises a single question of fact, viz., the
precise place where the escape occurred ; counsel contending
that by collusion between the accused and his keeper the
former in fact escaped before boarding the transport not-
withstanding he actually accompanied the latter thereto.

It may first be observed that this contention, even if
established, would not necessarily profit the defendant. A
similar claim was thus disposed of in a well-reasoned case:^

"The indictment alleges that Jenks escaped * * * from the
penitentiary, and it is said that the proof does not sustain the allega-
tion. The evidence shows that Jenks was not, at the time of his
escape, confined in the penitentiary, nor did he escape therefrom, but
he escaped while outside of the penitentiary and outside of the stock-
ade where the other convicts were confined. It is contended that this
is a fatal variance but we are of opinion that this contention cannot be
sustained. If the offense was one of a local character, so that the house
or place in which it was committed must be alleged and proved, then
the description of such house or place would be material and should
be proved as alleged. * * * g^^ ^]^g locality does not, under
our statute, enter into the substance of the crime of escape. It is a
violation of the statute for a convict to escape at any place — whether
from the penitentiary or not. To determine the venue and jurisdic-
tion over the offense, it was necessary to allege and prove the county

Jenks V. State, 63 Ark. 312, 39 S. W. Rep. 361.

454 I EXTRATERRITORIAL CASES.

in which the crime was committed and that was done in this case.
Beyond this, the reference to the penitentiary or place from which
the convict escaped was wholly unnecessary and immaterial and
may, therefore, be rejected as surplusage. It is not necessary to show
that such an offense was committed in the place alleged, if it be
shown to have been committed in some other place in the same
county." *

It may be added that "the locality does not," under the
statute invoked by the district attorney, any more than
under the Arkansas statute, "enter into the substance of
the crime of escape."

III.

But we are unable to agree with counsel that defendant's
escape took place prior to his boarding the transport. It
is conceded that he left the American Prison at Shanghai
on May 16, 1914, in the custody of one Kilgore, his keeper,
who held him by virtue of a warrant of commitment from
this Court. Such custody thus originated by judicial au-
thority and continued until the prisoner was delivered to
one duly authorized to receive him * who in this case was
the commanding officer of the transport. And such custody
could not be terminated by a mere collusive arrangement
between keeper and prisoner. To permit that would be
to enable them to take advantage of their own wrong and
to legalize a criminal conspiracy to defeat the due course of
justice. So long as the accused remained in Kilgore's com-
pany with the commitment he must be considered as having
been also in the latter's custody; for there was no other
reason for their being together and neither of them had
power to change the relation of custody to one of part-
nership.

Indeed we doubt if the testimony, properly weighed,
shows that they themselves treated the custody as ter-
minated before they reached the transport. It is true
that Kilgore now says that the defendant went there with
him but that he "did not take defendant." In his letter of

'Id., citing Com. v. Lavery, 101 Mass. 207; Com. v. Tolliver, 8
Gray, 386; 3 Greenl. Ev. (15th ed.), sec. 12; 2 Russ. Crimes (8th Am.
ed.), 800; 1 Phil. Ev. (4th Am. Ed.) 890.

' Murray v. State, 25 Fla. 528, 6 So. Rep. 498. Cf. Com. v. Morihan,
4 Allen (Mass.") 587.

UNITED STATES V. GRIMES, JAN. 30, 1915. 455

June 19 (Ex. A), however, written while the affair must
have been still fresh in his mind he said : "/ took Grimes to
the transpo7't in Nagasaki. There I helped him to escape."
Moreover defendant seems to have considered that it was
necessary for him to go on board for he testifies that he
told Kilgore "on the transport they might ask me, What
officer (are you) ?" Defendant also says that he gave and
kept his word to Kilgore not to escape and this alone would
preclude the idea that he did escape before boarding the
transport.

Much was said in argument to the effect that Kilgore
ceased to exercise restraint over his prisoner after their
plot was hatched. Kilgore himself testifies on this point
as follows:

Q. Did you consider Mr. Grimes as a prisoner when you took
him on board the transport Sheridan?

A. I can hardly answer that question.

Q. Were you exercising any restraint upon the liberty of Mr.
Grimes when you took him on board the transport?

A. Yes.

Q. You were exercising restraint over the liberty of Mr. Grimes?

A. I do not think there was any discussion about it at all.

Q. Suppose instead of going aboard the Sheridan he had chosen
to take the train to Yokohama, would you have interfered with him
in any way?

A. I think so.

Q. Why?

A. I could not give any reason.

* * ^ ^ ^ -^ He

Q. Did your means of restraint differ in any way from the means
of restraint you had used in Nagasaki previous to the sampan
journey?

A. Well the only restraint I used at all on Grimes was his word —
and it was the same then as at any other time."

Thus while the prisoner seems to have been allowed
altogether too much freedom from the start, it does not
appear to have increased prior to boarding the transport.
Both men seemed to consider that their conspiracy would
not become effective until they had gone thru the form of
surrendering a prisoner to the transport officer.

Nor would mere lack of restraint prevent his committing
the crime of escape. For the purposes of that offense a
prisoner "is under arrest if he is ordered to be subject to

456 I EXTRATERRITORIAL CASES.

arrest" ^ and there may be either "actual confinement or
the present means of enforcing it." "

"The appellant, Ed. Jenks, was a convict serving a term in the
penitentiary for the crime of burglary and larceny. While thus serv-
ing as a convict he was made a 'trusty' by the commissioners of the
penitentiary. He was afterwards sent with other convicts from the
walls of the penitentiary to a camp or stockade near the state insane
asylum, upon which the convicts were at work. After being made
a 'trusty,' he was not required to eat or sleep with other convicts,
called 'linemen', but ate at a table prepared for 'trusties,' and slept
in a house on the outside of the stockade in which the 'linemen' were
confined. He was not under guard, and was allowed to go at large
occasionally, within certain limits, but, in common with other trusties,
was required to report to the warden, perform certain duties, and to
obey prison rules. While at large on one occasion he left the county
and state, and did not return until brought back. The grand jury re-
turned an indictment against him for the crime of escape. * * *
Upon a trial under this indictment the defendant was convicted and
sentenced for the crime of escape." '

And the Appellate Court upheld the conviction, saying:

"Altho Jenks had been made a trusty, and was not confined in the
walls of the penitentiary, nor kept under guard, yet he was required
to remain within certain bounds, to do work, and to obey prison rules.
He was, in law, still a convict in custody, serving his term of impris-
onment. When, therefore, he fled from the county and state, he
committed the crime of escape, for the punishment of which the
statute above referred to was passed".'

So, in the case at bar, when the accused boarded the
transport followed immediately by his keeper the former
was still, in legal contemplation, in the latter's custody
and his departure from the transport, after the commitment
papers had passed to a new custodian, constituted an escape.

IV.

The statute upon which this prosecution is based, and
which is in force here by virtue of a general extension
of the acts of Congress, ** provides :

'Wharton, Criminal Law (9th ed.), sec. 1678.
' Spring V. Dahlman, 34 Neb., 692, 52 N. W. Rep., 567.
'Jenks V. State, 63 Ark., 312, 39 S. W. Rep., 361.
* Id., citing Riley v. State, 16 Conn., 47; 1 Russ. Crimes (8th Am.
ed.), p. 416; 2 Whart. Cr. Law, sec. 1678.

" U. S. Rev. Stats., sec. 4085; Biddle v. U. S., ante, p. 120.

PAGET V. CANTON COLLEGE, MAR. 15, 1915. 457

"If any male or female criminal shall run away before the time
shall be fully expired for which such criminal shall be convicted and
adjudged, the time of service and labor of such criminal shall be
extended * * * not exceeding one year for every time such
criminal shall run away". "

The accused is a prior offender ^^ and to his previous
record must now be added this crime of escape and his
conviction and sentence by a Japanese Court for still another
offense after he had escaped. And in the conspiracy which
resulted in the escape we do not believe that he was the
passive instrument he now claims to have been. He is
fourteen years older than his keeper (who is now but
twenty-two) and so much more experienced in crime that
it would be most unnatural if he were not the chief mover
in the affair. Nothing short of the maximum penalty seems
to meet the aggravating circumstances which have marked
the defendant's course.

He is accordingly sentenced to imprisonment for one year
to be served, after completing the sentence in Criminal
cause No. 87, in the Prison for American convicts in
China at Shanghai, unless and until due provision is made
for his lawful transfer to some other Prison; and to pay
the costs of this prosecution.

IN THE UNITED STATES COURT FOR CHINA.

Charles S. Paget, Plaintiff, v. Canton Christian College,
a Corporation, Defendant.

[Cause No. 412; filed March 15, 1915.]

SYLLABUS.
(By the Court.)

1. CONTHACTS. Courts will not make contracts for parties; in the
absence of mistake, fraud or other well recognized grounds,
the former will merely construe and apply the terms and con-
ditions accepted by the latter.

^° District of Columbia Comp. Stats., ch. XVI, sec. 155 continuing
in force a Maryland Act of 1793. There was also a common law
offense of escape. See Harris, Criminal Law, 68.

" See U. S. V. Grimes, ante, p. 305.

458 I EXTRATERRITORIAL CASES.

2. Id.: Novation. A contract is displaced and superseded, even with-

out an express provision to that effect, by a subsequent agree-
ment on the same subject inconsistent with the first.

3. Id. : Damages. Not every departure from the terms of a contract is

actionable. There must be actual injury or the case is one of
dainrium absque injuria.

4. Id.: Id.: Where a contract merely gives one party the option to

employ the other, and the latter the option to accept employment,
without imposing a specific obligation upon either, a notice
by the former to terminate the arrangement before any service
has been rendered by the latter is at most injuria sine damno.

5. Id. : Id.: Contingent liability for services rendered one of the

parties to a contract by a stranger before the same was entered
into, is not a proper item of damage for the breach of said con-
tract especially where such services have not been paid for
and the evidence as to their value is conflicting and unsatis-
factory.

Messrs. C. G. Alahaste7\ Barrister, and D. J. Lewis, Soli-
citor, for plaintiff.

H. L. Dennys, Esq., Solicitor, for defendant.

LOBINGIER, J.:

This is an action for damages from the alleged wrongful
termination of a contract for the employment by defendant
of plaintiff as an architect. The original negotiations for
such employment began as early as March, 1912 (Exhibits
"A" & "B"), and as a result thereof plaintiff was, on
November 1, 1912 (Ex. "E") appointed "resident Architect
and Engineer" for defendant upon terms embodied in a
communication (Ex. "C") from defendant's president, in-
corporating, by reference, various rules and regulation's
(Exhibits "CI" to "C3") previously adopted by defendant
for its employees in general. More than a page of the
said communication (sec, 4) was devoted to prescribing
plaintiff's rather extensive duties. It was provided that
(sec. 3) "the first term of service is to be three years,
salary and allowance to be on the basis of an unmarried
man" and that (sec. 14) "termination of relationship shall
be only on six months' notice by either party." The annual
compensation including various privileges was estimated
at G. $1,000.

It appears, however, that the contract thus evidenced
failed to prove satisfactory, in all respects, to either party.

PAGET V. CANTON COLLEGE, MAR. 15, 1915. 459

On plaintiff's part the amount of service required of him
was, he testifies (p. 4), nearly twice what he expected and
as he was engaged in various building contracts on his
own account, this appears to have constituted a substantial
objection. On defendant's part, there were complaints (pp.
11, 13) as to the character of the supervision exercised,
especially during plaintiff's absence in America. Into the
details of these complaints we need not enter and it is only
necessary to mention them at this time as explaining the
attitude of both parties toward the original contract. By
December, 1913, this attitude of mutual dissatisfaction had
so increased that plaintiff testifies (p. 25) "in my opinion,
it was far better to terminate that arrangement if they
so desired and to enter into new relations." He accord-
ingly accepted the following (Ex. H.) :

"Mr. C. S. Paget,
Shameen, Canton.

Dear Mr. Paget:

The council of the Canton Christian College yesterday discussed
your application for permission to build a residence on the college
campus. Ijn place of the existing agreement entered into November
1, 1912, between the college and Purnell & Paget, the council would
approve of the terms herewith subjoined. If they are satisfactory
to you please sign the enclosed duplicate and return to me.

The trustees of the college cannot permit private individuals not
in connection with the college or similar work to build residences
on the campus. The college is, however, willing to grant this com-
munity privilege to you in exchange for your services as advisory
architect and engineer under certain conditions. These conditions
you will understand are necessary on account of the peculiar nature
of the college's work.

(a) The site used to be selected by the college council. The plans
and specifications to be approved by the college council and access
given to accounts so as to assure the council of the exact cost.
The maximum redemption price if the college ever takes over the
house shall be $8,000 U. S. G.

(6) No land rent shall be charged. In case taxes shall be levied
Mr. Paget shall pay the share proportionate to his site.

(c) In return for sharing the community privileges Mr. Paget
promises to give the college without further compensation the best
services he can render as advisory architect and engineer, subject
to call to attend at least one meeting each week of the building
committee. In case Mr. Paget's regular service as an architect, or
the service of his office staff are used by the college, payment shall

460 I EXTRATERRITORIAL CASES.

be made by the college according to a rate determined before each
transaction.

(d) For all community utilities made use of by him Mr. Paget
will pay upon the basis of actual total cost.

(e) He agi'ees to conform to the community regulations as from
time to time established, and as a member of the community to take
part in developing it and protecting its interests.

(/) The college council must be free at any time after January
1, 1919, provided three years' notice has been given in writing, to
take over the property (except movable furnishings) at a cost to be
determined as follows:

The house must be kept in good repair by owner.

Damage resulting from faulty construction must have been fully
made good by owner.

The sum paid by the college shall be its original cost, (see (a)
above), less 1 per cent for each year it has stood between December
31, 1913, and December 31, 1938, and less 2 per cent per annum
thereafter.

Should the interests of the college require it, the alloted site may
be any time reclaimed provided the college allot another site and
provide funds to replace the house by a house in value equal to the
one thus taken over.

(g) So long as Mr. Paget shall render hearty service as adviser
to the college so as to convince the council of his value to the in-
stitution, the trustees authorize the Council to extend the community
privilege to him as a resident.

(h) If Mr. Paget desires to vacate, subrent, sublease, or sale of
his house can be effected only to person or persons approved by the
college, who shall be bound by all regulations of the community and
shall pay to the college annually such sums for land rental and
community rates as shall be from time to time fixed by the council.

If you become a resident of the community we shall all give you
and Mrs. Paget a cordial welcome, and hope that the relationship
shall always be mutually enjoyable and helpful.
Yours faithfully,

(Sgd.) C. K. Edmunds,

Vice President.

I agree to the terms above stated. The agreement to be put in
force.

Signed: Jan. 1st, 1914.

(Sgd.) C. S. Paget."

Plaintiff, indeed, says (p. 35) that he regarded this as
"passing from one to another," that his "idea never con-
templated that the conditions obtaining at that time should
absolutely cease" and that (pp. 39-40) he "tho't the old
agreement so far as privileges were concerned would con-
tinue in force, and that the second contract altered my

PAGET V. CANTON COLLEGE, MAR. 15, 1915. 461

relationship only so far as services were concerned." But
his counsel in argument conceded that "the old contract
was cancelled by mutual consent," and such we think is the
only conclusion to be drawn from the conduct of the parties
and the language employed. For Ex. "H" recites at the
outset that it is offered "in place of the existing agreement
entered into November 1, 1912." It contains no other
allusion to the original contract, incorporates, neither by
reference nor otherwise, any of the former's terms or con-
ditions, and its provisions are in fact so entirely different
as to render the second agreement inconsistent with the
old. Instead of continuing as "resident Architect and
Engineer" with a fixed cash salary, travel and vacation
allowance, quarters, medical attendance, etc., plaintiff be-
came, under the second contract, merely "advisory architect
and engineer," "without further compensation" than the
privilege of erecting a residence on defendant's campus
under certain conditions to be discussed later on. It was,
however, provided as has been seen (paragraph c), that
"in case Mr. Paget's regular service as an architect or the
service of his ofRce staff are used by the college, payment
shall be made by the college according to a rate determined
before each transaction."

The effect of substituting such an agreement is well
settled.

"One written contract complete in itself will be conclusively pre-
sumed to supersede another one made prior thereto in relation to
the same subject-matter. If agreements be made between the same
parties concerning the same matter, and the terms of the later
are inconsistent with those of the former so that they cannot subsist
together, the later will be construed to discharge the former."^

The major portion of the new contract, however, deals,
as will be seen, with plaintiff's residential privilege and
the terms upon which it was to be enjoyed. The new
contract, while dated December 19, 1913, was signed by
plaintiff on December 24, 1913, and on behalf of defendant
on December 29, 1913 (p. 98), but by its terms was to
take effect on January 1, 1914. It appears, however, that

^ 9 Cyc. 595, citing many authorities. Cf . Anson on Contra<rts
(Huffutt's ed.) sec. 353.

462 I EXTRATERRITORIAL CASES.

subsequent to its execution by plaintiff an incident occurred
(p. 83) between himself and one of defendant's represen-
tatives which caused the latter to make an unfavorable
report, and on January 2d, one day after the contract took
effect according to its terms, the following letter (Ex. "I")
was written on defendant's behalf and received by plaintiff :

"Messrs. PuRNELL & Paget,
Shameen, Canton.

Gentlemen :

We regret that since ratifying your appointment, we have found
that we cannot give you that measure of confidence and authority
which you expect in serving us as advisory architect and engineer.
Because of this and because of your attitude of mind as shown in
recent conferences, it is clear that a continuance of this mutually
unsatisfactory relationship can only lead to continued friction and
inefficiency in the work of our building committee. The council has
therefore decided that it will be better to terminate your professional
connection with the College,

Under these circumstances it is impossible to carry out the plan
to erect a residence on our premises.

We shall ourselves undertake to complete such unfinished work
as has till now been committed to you.

The council will be glad to employ your services in the future if
circumstances permit. We trust the embarrassment in which both
you and we find ourselves will not affect our personal relationship.
Very truly yours,

(Sgd.) C. K. Edmunds.

President."

Various correspondence passed between the parties sub-
sequent to this letter and negotiations between them con-
tinued almost a year, but, no settlement having been reached,
plaintiff on December 21, 1914, commended this action by
filing his petition in which he claims damages itemized as
follows :

Emoluments in lieu of six months' notice $500.00

Expenses bringing designer to Canton 115.00

Bonus at end of three years 275.00

Damages sustained by reason of loss of residence site,

January 1, 1914, to January 1, 1919 258.00

Loss sustained by cancellation of contract for building of

residence 500.00

Total : $1,648.00

PAGET V. CANTON COLLEGE, MAR. 15, 1915. 463

II.

Taking these items up seriatim, the first question pre-
sented is whether plaintiff was entitled to six months', or
other, notice under the contract as it now stands. His
counsel contend that, even tho the original contract be
treated as abrogated, he is, nevertheless, entitled to reason-
able notice of discharge,- and that the previous arrange-
ment and course of dealing between the parties must be
resorted to in order to determine what would be reasonable
notice under the circumstances. To this defendant replies
that any implied requirement of such notice is waived by
clause (g) of the contract (Ex. "H") by which its priv-
ileges continued only "so long as Mr. Paget shall render
hearty service as adviser" and it is claimed that such
service had already ceased when the notice of termination
was served. But it is also cont°.nded that the terms of
the second contract are such that plaintiff could have suf-
fered no actual damage from its termination and hence
that there could be no recovery for the first item, even if
such termination were premature. If the latter conten-
tion be sound the former need not further be considered.

As we have seen, defendant does not undertake, by the
second contract, to provide plaintiff with any specific em-
ployment or compensation. He is to act as "advisory arch-
itect and engineer" for the residential privilege and is
to be paid otherwise only "in case" his "regular service as
an Architect" is "used." Plaintiff's counsel contends that
this clause involved an implied undertaking to provide
plaintiff with a reasonable amount of work so long as the
employment lasted and in support of such contention
counsel, with commendable evidence of industry, presents
what is claimed to be a case "on all fours". ^ After scru-
tinizing this decision, however, we note what seem to us

* Citing African Association, Ltd., vs. Allen, L. J. Rep. (1910),
N. S., vol. 79, p. 259 (K. B. Div.) ; Chitty on Contracts (15th ed.),
pp. 529, which reads as follows: "Where the contract of hiring does
not contain any stipulation as to notice, the servant can only be
dismissed on having reasonable notice, or the customary notice, if
there be a custom applicable to the particular case."

' Devonald v. Rosser, L. R. (K. B. Div. 1906), vol. 2, p. 728.

464 I EXTRATERRITORIAL CASES.

material differences in the facts; for there plaintiff had
been employed by defendant for thirteen years under con-
ditions which included the following :

"By rule 1, 'No person regularly employed shall quit or be dis-
charged from these works without giving or receiving twenty-eight
days' notice in writing, such notice to be given on the first Monday
of any calendar month before 12 o'clock at noon.' By rule 11, 'Every
workman in the various departments of the works will when required
by the manager or agent perform such duties as may be deemed
necessary in case of emergency other than the special work he may
be engaged in.' The plaintiff was paid by piece work at so much
per box of 112 tinplates." •

Under these long continued circumstances and by virtue
of these material restrictions upon plaintiff's right to accept
other employment, the Court might well find an implied
contract and a measure of damages in the average amount
of plaintiff's earnings previous to his discharge. But we
find nothing analogous to this in the contract before us.
Plaintiff had performed no work whatever under the new
contract which in fact had been in force but one day when
the notice complained of was given. Nor was he required,
as in the case cited, either to give notice of an intention to
quit the employment or (using the Court's language in that
case) to "be at the beck and call of the master whenever
required." There is nothing in this contract (Ex. "H")
which requires plaintiff to render any service at all except
as "Advisory Architect and Engineer," which is to be
"without further compensation" than the residential priv-
ilege. Besides the notice of January 2, 1914, did not purport
absolutely to terminate such service. On the contrary it
announced (Ex. "I") "The council will be glad to employ
your services in the future if circumstances permit."

As to the other service, there is, indeed, a provision for
compensation "in case" it is rendered, but no requirement,
as in the cited authority, which binds plaintiff to stand
ready to perform whatever service defendant may require.
While, therefore, we do not question the authority of that
decision as regards the facts there presented, we are unable
to find it applicable to this case, and so long as plaintiff
was entitled to no specific pecuniary compensation except
for services actually performed for the defendant, and so

PAGET V. CANTON COLLEGE, MAR. 15, 1915. 465

long as the acceptance of such service was entirely optional
with defendant, we are unable to see how it could be
found that plaintiff was necessarily damaged in this re-
spect by the termination of the contract. For defendant
did not actually agree to give plaintiff any definite amount
of employment; it only agreed to pay him in case his
services were "used." It may be, as the Court observed
in the case cited, that "the bargain is of a very one-sided
character," but the disparity between the relative position
of the parties was not at all such as existed in that case;
they dealt on an equal footing and as we have seen plaintiff
as well as defendant desired to substitute the new arrange-
ment for the old. Now it is elementary that the Courts
will not make contracts for the parties; in the absence of
mistake, fraud or other well recognized grounds they will
merely construe the term's and conditions which the parties
have agreed upon, and there is no claim here that these
terms were not voluntarily accepted by both. We cannot
assume that plaintiff would have received any pecuniary
profit under this contract, even if the notice of January
2, 1914, had never been given, because we cannot presume
either that defendant would necessarily have exercised its
privilege to "use" plaintiff's services or that he would
necessarily have exercised his privilege (for we have seen
that there was no obligation) to render them. Therefore,
we cannot find as a matter of law that he suffered the
damages claimed in the first item by reason of such notice.

III.

The next item of damage claimed, it will be seen, is
"expenses bringing designer to Canton, $115." The new
contract (Ex. "H") says nothing about a designer. De-
fendant's communication of September 14, 1912 (Ex.
"C"), which formed part of the original contract, did re-
quire (paragraph 7) plaintiff to

"Maintain and pay as a member of his own staff a qualified
European competent to handle the element of design in the work
undertaken for the College and of the competency of such designer
the Council shall be the final judge."

14008 O. W. 30

466 I EXTRATERRITORIAL CASES.

There is considerable testimony as to the plaintiff's
failure (admitted by him) to furnish defendant's council
with a statement of the designer's qualifications but we
find nothing, even in the original contract, which required
defendant to pay the expense of bringing such designer
to China. The phrase "maintain and pay as a member of
his own staff" would seem to indicate quite the contrary.
But be that as it may, the contract whose wrongful ter-
mination is complained of, was that of December, 1913,
and that, as we have seen, contains no reference to a
designer.

Much the same may be said as to the third item claimed,
to wit, "Bonus at end of three years, $275." This ap-
parently is based upon paragraph 10 of defendant's com-
munication of September 14, 1912, which was not carried
forward into the new contract. Plaintiff having accepted
the latter, whose terms were inconsistent with the former,
must of course abide by it and is not entitled to claim
under the superseded contract.

IV.

The remaining items claimed involve the question of the
residential privilege. The first consists of "damages sus-
tained by reason of loss of residence site, January 1, 1914,
to January 1, 1919, $258." This appears to be based on
the first paragraph of clause (/) of the contract (Ex. "H").
The second paragraph, however, provides that "the allotted
site may be any time reclaimed provide the College allot
another site and provide funds to replace the house", etc.
It will be observed, then, that this clause does not confer
a fixed residential period of five years but that its termina-
tion is discretionary with the defendant and that the latter
does not even undertake to "allot another site" on the
campus. The evidence here (Ex. "J") shows that defendant
did offer plaintiff "another site * * * adjacent to
the campus." In view of the very wide discretion conferred
on plaintiff by the second paragraph of clause (/) it seems
at least doubtful whether damages could be predicated at
all upon such a change. But it is clear, at any rate, that
before we could award such damages there would need to

PAGET V. CANTON COLLEGE, MAR. 15, 1915. 467

be specific evidence that plaintiff would suffer a pecuniary
(and not merely sentimental) loss by accepting the new
site offered by the defendant in preference to the old, and
no such evidence is produced. Of course, if plaintiff had
actually erected a house on the original site, that portion of
clause (/) which requires defendant to "provide funds to
replace the house" would need to be construed; but as no
house was completed, or even started, that provision need
not further be considered.

The last item claimed is "loss sustained by cancellation
of contract for building of residence, $500." Plaintiff's
testimony (p. 63) in support of this item is to the effect
that he employed a contractor to start the work of con-
struction and that the latter erected certain matsheds.
Plaintiff estimates his indebtedness to the contractor as
$1,000, Mexican currency. On the other hand. Dr. Woods
testifies (p. 141) that the matsheds could have been built
for $100 (Mexican), and that he has had a larger shed
constructed for $80.

Regardless of this conflict, however, the testimony would
not afford us a basis for awarding damages because the
matsheds were, according to plaintiff's own testimony (p.
63) erected "in December, 1913". But the new contract,
as we have seen, did not go into effect until the following
January. Surely we could not av/ard as damages for the
breach of a contract, items accruing before the contract
existed. Besides, Dr. Woods testifies (p. 141) — and he is
corroborated (p. 70) rather than otherwise by plaintiff —
that the plans and specifications for plaintiff's residence
were never submitted to defendant's Council, whose ap-
proval was expressly required by the contract (Ex. "H")
as well as by defendant's Statutes (Ex. CC, Art. X, sec. 8)
before any construction could properly be undertaken ; and
that plaintiff was warned that without such approval he
would proceed at his own risk.

Plaintiff expressly states (p. 64) that he has neither paid
the contractor for the matsheds nor been pressed by him,
and the claim, so far as he is concerned, is therefore merely
a contingent one. Passing the question whether damages
can now be allowed for such a liability, it is clearly im-

468 I EXTRATERRITORIAL CASES.

possible to adopt the suggestion made arguendo that the
contractor's claim might be adjudicated in this proceeding
and whatever was due to him awarded. The contractor
is not a party to this action. He has filed no pleadings,
offered no evidence, and in fact is not subject to this Court's
jurisdiction except as he voluntarily submits himself.
Hence no judgment here could bind him. The evidence
bffered as to the amount due him might show the figure
claimed to be entirely too high or entirely too low but in
any event we are concerned here only with the rights of
the parties to this cause.

On the whole, we are unable to find in the evidence before
us a sufficient basis for an award of specific damages. It
is not enough that the terms of a contract may be departed
from (and we do not here find it necessary to determine
whether there was technical breach of this contract) ; it
is essential also to prove legal damage, and to prove it by
evidence which would justify the Court in making a specific
award. For the law does not treat every breach as ac-
tionable; ' much less does it provide substantial damages
for every departure. There may be injuria sine damno as
well as damnum absque injuria. Believing that the evi-
dence discloses at most nothing more than the first of these,
we have no alternative but to find for the defendant. The
latter pleads a set-off amounting to $49.50, but as its Pres-
ident testified (pp. 108 and 109), speaking of this claim
and another, that "all those items except one have been
settled," and as the exception is not specified, we have no
basis for assuming that any of the set-off remains unpaid.

In closing we desire to commend the course pursued by
the parties. Their deportment toward each other thruout
the trial was noticeably correct and courteous and their
attitude from the time their dispute arose has evidently
been that of those having an honest diff'erence of opinion
which, tho not adjustable between themselves, was never-
theless not allowed to produce personal feeling but was
very properly submitted to the tribunal which their govern-
ment provides for just such emergencies.

* 13 Cyc, 13.

NEWMAN V. BASCH, MARCH, 1915. 469

It is accordingly considered and adjudged that plaintiff
take nothing by his petition and defendant nothing by its
cross-demand ; but as each appears to have been prosecuted
in entire good faith, there will be no award of costs to
either party.

IN THE CITY COURT OF NEW YORK.
Martha K. Newman v. Louis Basch.

[March, 1915, 89 Misc. 622, 152 N. Y. S. 456.]

SYLLABUS.
(By the Editor.)

1. COURTS: Judgments. American consular courts in China are

courts of record and their judgments are enforcible in the courts
of New York at any time within twenty years.

2. Id. : Id. Such judgments are within the constitutional guaranty

of "full faith and credit," the same as those of other Federal
courts.

3. Id. : Referees. The Judge of such a court has power to refer a

cause pending therein to a single referee and to render judg-
ment on his report.

Henry S. Dottenheim, Esq., for plaintiff.
Henry Brill, Esq., for defendant.

McAvOY, J.:

An issue of novel impression is raised by the pleadings
in this action. The declaration is upon an alleged judgment
of the United States Consulate General of Shanghai, China.
The plea is that the judgment was not duly given or ren-
dered.

Consuls have anciently been the repositories of qitasi
judicial functions. As representatives of the variform
populations of the mediaeval Italian city republics it was
by custom and usage the rule to refer to them the settle-
ment of differences in commercial matters between citizens
of their national sovereignty and ultimately criminal causes
involving persons of the same nationality committed within
the quarter of the city where their nationals were accus-
tomed to resort were tried and punished under and accord-
ing to foreign or exterritorial authority. In 1199 A. D.,

470 I EXTRATERRITORIAL CASES.

the Emperor Alexius III issued a chnjsobulum of priv-
ileges conceded to the Venetians in Greece of exterritorial
character which granted to the Venetians right of trial
of criminal and civil causes before their local representa-
tives at Constantinople. In 1304 A. D., Emperor Androni-
cus II granted a privilegium aurea bulla nostra munitum
declaring the rights and jurisdiction of the republic of
Genoa within his realm. The Genoese were to be subject
only to the jurisdiction of their national authorities in the
Byzantine capital. No injury was to remain unpunished,
no right unenforced, whether of or against Greek or Gen-
oese, in these Genoese consular courts.' The consuls of
the city of Marseilles were granted jurisdiction over their
fellow citizens at Tyre and Acre. The Venetian consul at
Tyre bound himself by oath "to render justice according
to the customs of the port," and if these were not of a deter-
minative character, then upon principles of natural justice.^
From 1154 A. D. to 1445 A. D. the Italian city republics
of Pisa, Genoa, Venice, and Florence secured capitula or
treaties governing their subjects' rights and privileges in
many of the sovereign cities along the Mediterranean, in
Egypt and abutting the Barbary Coasts. Subsequent to
the diminution of influence of the Italian republics is ob-
served the rise of influence of France in affairs in the
Levant, which is continuous to our own day. And it is said
by celebrated writers on diplomatic and consular subjects
that the capitulations of modern treaties differ little from
those obtained by Francis I from the Sultan Suleiman in
1535 A. D. This was the first of the capitulations obtained
by a great European power from the Ottoman Porte. ^

The United States early began the attempt to secure these
exterritorial rights for its citizens resident abroad and
concluded its first treaty of this character in 1787 with
Morocco; but the earliest act of our Congress relating to
American consular jurisdiction in the Orient is an act of
August 11, 1848.* In its report proposing the adoption of

^ See Monumenta Patriae Historiae, Liber Jurium Reipublicae Gen-
uensis, II, 440.

- See Merchants' Rights under the Crusaders, Hinckley, p. 4.
' Hinckley's American Consular Jurisdiction, 10.
*9 U. S. Stats, at Large, p. 276, c. 150.

NEWMAN V. BASCH, MARCH, 1915. 471

the bill the Senate judiciary committee stated that it was
necessary to the execution of the treaty of capitulation with
China of 1844,'' This treaty provided (article 25 ^) * * *
Following this the act of June 22, 1880,' was passed in
order to effectuate and carry out the capitulations in the
new treaties with China, Japan, and Siam. The second
treaty with China was ratified June 18, 1858,* and again
bound the contracting nations by article 27, which is in
the very words heretofore quoted from the treaty of 1844,
the former and the latter treaties and the act of July 1,
1870,^ comprising the basic law governing the erection and
constitution of Consular Courts of China as embodied in
the Revised Statutes of the United States." Since these
acts of Congress all declare their intent to effect the pro-
vision of treaties granting extraterritorial jurisdiction, they
are as such extensions of the treaty provisions in their
relation and control over the judicial branch of the govern-
ment, whether state or federal, under article 6, section 2,
of the Constitution of the United States, providing that :

"All treaties made, or which shall be made, under the authority of
the United States, shall be the supreme law of the land; and the
judges in every state shall be bound thereby, anything in the Con-
stitution or laws of any state to the contrary notwithstanding."

The judicial authority of the United States Consuls
created to carry into full effect the provisions of treaties
is as equally binding on state courts as are any of the capit-
ulations of a treaty. The authority is conferred as fol-
lows:

"To carry into full effect the provisions of the treaties of the
United States with China, * * * the minister and the consuls
of the United States, duly appointed to reside in each of those
countries, shall, in addition to other powers and duties imposed upon
them, respectively, by the provisions of such treaties, respectively,
be invested with the judicial authority herein described, which shall
appertain to the office of minister and consul, and be a part of the

= 8 U. S. Stats., 597.

° See ante, p. 2, Ed.

' 12 U. S. Stats, at Large, p. 72, c. 179.

' 12 U. S. Stats., 1023.

" 16 U. S. Stats, at Large, 183, c. 194.

"Sections 4083 to 4130 (U. S. Comp. St., 1913, pars. 7633-7676).

472 I EXTRATERRITORIAL CASES.

duties belonging thereto, wherein, and so far as, the same is allowed
by treaty." "

The jurisdiction in civil causes conferred is to embrace
all controversies between citizens of the United States or
others provided for by such treaties; and jurisdiction in
civil matters in all cases is to be exercised and enforced
in conformity with the laws of the United States, which are,
so far as is necessary to execute such treaties, extended over
all citizens of the United States in those countries. Since
the statutes of the United States are extended over and
apply to the enforcements of the capitulations of the treaties
conferring jurisdiction, as well as grant the imposition of
judicial authority, the judgments, or determinations called
judgments, are subject to and have the same force and
effect and are entitled to the same enforcing remedies within
any state as judgments of federal courts outside of the
state of their territorial location. The effect of judgments
of the United States courts and their process is the same
as the effect of judgments of a state court.^^

Any party who recovers a judgment in any common-law
cause and in a United States court is entitled to similar re-
medies upon the same to reach the property of the judgment
debtor as are now provided in like causes by the law of the
state in which the court is held." The remedy of suit upon
a judgment to awaken an expiring or expired judgment
lien is thus by statute, if not by the comity relation, a
remedy applicable to and enforcible thru a judgment under
the judicial authority of the United States. It seems clear,
then, in exploring this unbeaten path without aids from
precedents, that analogous reasoning justifies the conclu-
sion that this consular judgment is properly sued upon as
such. The determination or judgment of the Consular
Court having been made with jurisdiction of the parties
and the subject-matter, it seems * * * entitled equally
with judgments thruout the United States to full faith and

"Act of June 22, 1860, 12 Stats, at Large 72; Act of July 28,
1866, c. 296, 14 Stats, at Large, 322; U. S. Rev. Stats. 4083.

"United States v. Morrison, 4 Pet. 124, 7 L. ed. 804; Barth v.
Makeever, 4 BIss. 206, Fed. Cas. No. 1069.

'^U. S. Rev. Stats., sec. 916; U. S. Comp. St. 1913, par. 1540.

NEWMAN V. BASCH, MARCH, 1915. 473

credit in the courts of every state in the Union, in like
case with judgments of state courts under our Federal
Constitution.

Is this court then — having criminal jurisdiction, whereby
the consul was fully empowered to arraign and try all
citizens of the United States charged with offenses against
the law committed by them in China, and in civil causes
embracing all controversies between citizens — a court of
record? The determination of this question is necessary,
because if the consular judgment is * * * of a court
not of record, then the limitation of 6 years upon a suit on a
judgment rendered therein would apply.'* And if the court
be one of record, the time in which the judgment is pre-
sumed to be paid and satisfied is after the expiration of
20 years. '^

It is not to be overlooked that this consular tribunal is
a court of limited jurisdiction. Its limitations are con-
tained in the treaty with the foreign nation affected and
the statutes passed to carry such treaty into effect. Its
jurisdiction cannot therefore be extended beyond their leg-
itimate meaning.^" However, neither treaty provides nor *
statute declares a provision which erects these consular
courts as courts of record; but this is not decisive against
the claim that they are * * *. The Circuit Court of
the United States, erected by statute, pursuant to the au-
thority of Congress, is not declared by any statute to be a
court of record; but it has been declared to be so by judicial
opinion, and is universally recognized as such so far as
its judgments and other jurisdictional matters are con-
cerned.'^ The court there determined the question upon
the ground that a writ of error would run to it.^^ If the

" Section 382, subd. 7, Code of Civil Procedure.

" Section 376, Code of Civil Procedure.

" See In re Ross, ante, p. 65.

"The Thomas Fletcher (C. C), 24 Fed., 481.

" Citing 3 Blackstone's Commentaries, 24 * wherein is contained
the definition that a court of record is "a court where the acts and
judicial proceedings are enrolled in parchment for a perpetual me-
morial and testimony," which rolls are called the records of the court,
and are of such high and supereminent authority that their truth is
not to be called in question.

474 I EXTRATERRITORIAL CASES.

existence of a record be denied, it shall be tried by nothing
but itself ; that is, upon bare inspection whether there be any
such record or no, else there would be no end of disputes.^^
Rolls or records contain a history of the proceedings
of the cause to which they relate ; they give the name of the
court in which the judgment was rendered, when and where
it was held, the process, pleadings, adjournments, verdict,
and judgment of the court. They are authenticated by a
signature of some public officer and kept as a perpetual
memorial of the transaction. When issue is joined upon
the existence of such record, it is tried and decided by the
record itself.

Neither is a statutory declaration that a court is a court
of record conclusive on the courts, if its history, procedure
and practice do not comport with the usual definition with
which, judicial construction has surrounded this character
of tribunal. For instance a statute declaring the Justice's
Court of the City of Albany, instituted in 1821, to be a
court of record, was held -" not to constitute the court in
a strict legal sense entitled to that character, because its
judgments were not enrolled. They were merely entered
in a book kept for that purpose, and these entries were
held not to constitute what in legal language is called a
record. The distinction indicated in that case between
courts of record and not of record related back to the dif-
ferences recognized in common law pleas. At common law
the plea to an action upon a judgment rendered in a court
not of record was a plea nil debet; to the judgment of those
courts whose records import absolute verity, to an action
of debt on a judgment, the plea nul tiel record is the proper
plea, and 7iil debet is bad on demurrer, tho good after
verdict.-^

Applying this test, if the plea of nul tiel record were to
be made here, a trial by inspection of the record presented
and proof of the judgment roll, without extraneous aid thru
other evidence, exhibits jurisdiction of the defendant and

"Id., 24.*

'"Wheaton v. Fellows, 23 Wend. (N. Y.), 375.

"Bullis V. Giddens, 8 Johns. (N. Y.), 82; White v. Converse, 20
Wend. (N. Y.), 266.

NEWMAN V. BASCH, MARCH, 1915. 475

subject-matter and a determination within such jurisdic-
tion by the proper tribunal after submission by the defend-
ant summoned. This would suffice. It is not sufficient,
according to the Court of Appeals ^^ to constitute a court
of record in a legal sense that the court should have a
clerk and a seal. It should be so administered and con-
ducted that, if the existence of the record be denied, it
shall be tried by nothing but itself — that is, upon bare
inspection — whether there be any such record or no.

If evidence of the court's character may be allowed from
its own regulations, the following is pertinent : * * *

"All original papers shall be filed at once and never removed.
No person but an officer of the consulate or the minister should be
allowed access to them. All papers in a case must be kept together
in one inclosure and numbered as in the docket, w^ith the parties'
names, the nature of the proceedings, the year of filing the petition
and the final judgment conspicuously marked on the inclosure, and
each year's cases kept by themselves in their order." *"

Since it has not been judicially determined that this
Consular Court is a court of record, nor, as has been said,
is it declared as such in the treaty allowing the creation
of these extraterritorial courts, or in the statute carrying
them into effect, a rule to the effect that it possess the
characteristics of such a court must be made by analogy,
applying the ancient tests of the characteristics necessary
to so constitute it.

A court declared to be a court of record by statute is
held by the Court of Appeals to be not a court of record
as a matter of judicial opinion.-* And a court not declared
to be a court of record by statute is declared to be such
thru judicial reasoning and determination.^^

The right, therefore, to be so considered, must depend on
legal history rather than statutory declaration or judicial
precedent. Because of the importance of its litigation, its
long-continued exercise of jurisdiction in all matters of civil
and criminal conception, its enrollment of pleadings and

■' Hutkopf V. Demorest, 103 N. Y. 377, 8 N. E. 899, 10 N. E. 535.
'^ Consular Court Regulations for China, 81.
"Wheaton v. Fellows, 23 Wend. (N. Y.) 375.
-"The Thomas Fletcher, 24 Fed. 481.

476 I EXTRATERRITORIAL CASES.

determinations, so that by bare inspection the record estab-
lishes itself, * * * its characteristics do establish it as
a court of record within the legal sense,-" the time during
which its judgments may be presumed to be satisfied or
discharged extending to 20 years after rendition.

The statutes declare it to be the duty of minister and
con,sul to encourage the settlement of controversies of civil
character by mutual agreement or by submitting them to a
decision of referees -~ agreed upon by the parties. At the
court of the consul this controversy was by mutual agree-
ment submitted to a single referee, and his report signifies
that he heard and decided the case, and the consul indicates
his acceptance of the decision and directs entry of the judg-
ment. I do not agree that the use of the plural word in
the statute ousts the jurisdiction of the consul in causes
referred by agreement to a single referee, because sub-
mission to the jurisdiction of the consular court and to
the decision of a referee is sufficient for the exercise of the
consular duty of acceptance of the decision and the direc-
tion for judgment and the execution thereof.

There is no limitation in the statute as to the number of
referees necessary to render an award. I should feel in-
clined to hold that the legislation was mandatory were the
requirement in the statute for a specific number of referees.
Since no number is mentioned and no requisite indicated
as to the number who must join in an award, I conclude

^ For an instructive discussion as to what constitutes a court of
record see Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742 and note.
Ed.

^ On application of either party and advance of the fees, the
consul shall compel the attendance of any witness within his jurisdic-
tion before himself, referees, or commissioners. (Consular Court
Reg-ulations for China, 12.)

When parties agree to a reference they shall immediately file a
rule, and the case be marked "Referred;" a commission shall then
issue to the referees, with a copy of all papers filed in the case.
(Id., 37.)

The referees shall report their award to the consul, who shall ac-
cept the same, and give judgment, and issue execution thereon, un-
less satisfied of fraud, perjury, corruption or gross error in the
proceedings. (Id., 38.)

UNITED STATES V. GRIMES & LECLAIR, APR. 17, 1915. 477

that it is left to the agreement of the parties as to whether
or not there should be one or more referees.

I accordingly direct judgment for the plaintiff for the
amount of the Consular Court's judgment, with interest.

IN THE UNITED STATES COURT FOR CHINA.
United States v. Peter A. Grimes.

[Cause No. 431; filed April 17, 1915.]

United States v. Edward C. LeClair alias Edward C.

Burke.

[Cause No. 431; filed April 17, 1915.]

SYLLABUS.
(By the Court.)

1. CITIZENSHIP : ONUS Probandi. While an information must aver

that the accused is an American citizen, the burden of proving
the contrary rests upon him.

2. LAW: The Federal Constitution does not extend to this extra-

territorial jurisdiction.

3. Id,: Certain Penal Statutes of Maryland continued in force in the

District of Columbia by act of Congress are operative here by
the general extension of the "laws of the United States."

4. CRIMES: PENALTIES. The maximum penalty imposed upon one

who had been previously convicted of the same offense, but
reduction allowed in the case of another not so convicted and
who had pleaded guilty in the case at bar.

Earl B. Rose, Esq., Acting and Special Dist. Atty., for the
prosecution.

M. L. Heen, Esq., for the defendant LeClair.
Pete?' A. Grimes, pro se.

LOBINGIER, J.:

The defendant in each of the above entitled causes is
charged with the crime of escape, in that on April 10, 1915,
he being then and there in the prison for American convicts
at Shanghai, China, "under conviction, judgment, sentence
and commitment to serve imprisonment, and being then and
there serving said sentence or sentences and before the

478 I EXTRATERRITORIAL CASES.

time had expired for which he had been so convicted, sen-
tenced and committed, willfully and unlawfully did escape :
Against the laws of the United States."

The defendant in cause No. 432 pleaded guilty to the in-
formation. The defendant in cause No. 431 pleaded not
guilty but called only one witness who offered nothing to
meet the conclusive showing by the prosecution that the
prisoners in question did escape on the occasion mentioned,
after locking up their keeper, and were at large for several
hours, being later apprehended by the municipal police of
Shanghai and returned to their proper place of custody.

Each information further charges that the defendant
therein named is "a citizen of the United States" and as
that is a matter peculiarly within their knowledge the
burden rests upon them to show the contrary ^ and neither
of them has produced any evidence thereon. Besides each
has been heretofore tried and convicted in this Court as an
American citizen.

The defendant in cause No. 431 invoked certain clauses
of the Federal Constitution which however is not in force
in this extraterritorial jurisdiction.- Consequently its pro-
visions regarding jury trials are not available.^

The only remaining question presented concerns the
penalty to be imposed. A provision of the Compiled Stat-
utes * in force in the District of Columbia reads as follows :

"If any male or female criminal shall run away before the time
shall be fully expired for which such criminal shall be convicted and
adjudged, the time of service and labour of such criminal shall be
extended * * * not exceeding one year for every time such
criminal runs away."

This was originally a statute of Maryland ^ and was con-
tinued in force in the District of Columbia by certain legis-
lation enacted by Congress for said District.'' Under

' 12 Cyc. 381, 382; 11 Cyc. 878; Nat. etc. Ass'n. v. Sparks, 83 Fed.
225.

^ In re Ross, ante, p. 50.

= Dorr V. U. S., 195 U. S. 138, 49 L. ed. 128.

■• Albert and Lovejoy edition (Washington, 1894) , Ch. 16, sec. 155.

' Act of 1793, Ch. 57, sec. 14.

"In re Wolf, 27 Fed. Rep. 606, 612.

UNITED STATES V. GRIMES & LECLAIR, APR. 17, 1915. 479

previous legislation as construed by the Court of Appeals ^
the laws thus enacted for the District of Columbia are in
force in this extraterritorial jurisdiction and we are there-
fore authorized to apply to this cause the section above
quoted.

This is the second offense of the same kind committed
by the defendant in cause No. 431 besides which he has
repeatedly been guilty of more serious offenses. We must
therefore impose upon him the maximum penalty fixed by
the statute and it is accordingly considered and adjudged
that the defendant, Peter A. Grimes, be and he is hereby
sentenced to imprisonment for one year, in addition to
sentences heretofore imposed, and to pay the costs of the
prosecution.

The defendant Edward C. LeClair, alias Edward C.
Burke, having pleaded guilty and not having previously been
convicted of an offense of the same kind, will not be given
the extreme penalty, but he is hereby sentenced to im-
prisonment for eight months and to pay the costs of the
prosecution.

Both of said sentences shall be served (after the expira-
tion of sentences heretofore imposed upon the defendants
by this Court and after their transfer from the Prison
for American convicts at Shanghai, China) in Bilibid
Prison, Manila, Philippine Islands, the place of incarcera-
tion designated by the Attorney-General of the United
States under the authority conferred by sec. 5546 of the
Revised Statutes.

On the same day sentence was imposed in cause No. 433 on one of
the defendants in the foregoing cause as follows:

LOBINGIER, J.:

The information in this cause charges
"that said Edward C. LeClair within the jurisdiction of said Court,
to wit within the American prison for convicts in China at Shanghai,
China, on or about the tenth day of April, 1915, being then and
there by said United States Court for China, for the crime of armed
robbery, under conviction, judgment, sentence and commitment to
serve a term of imprisonment and being then and there serving such
sentence, did feloniously take and carry way from the said jail
or prison a 38 calibre revolver, the property of the United States of
America of value of Gold $20 more or less and did thereby commit

' Biddle v. U. S., ante, p. 120.

480 I EXTRATERRITORIAL CASES.

the crime of petit larceny against the laws of the United States
(section 827) of the Code of Law for the District of Columbia."

It appears from evidence in other cases involving the same
circumstances that the defendant's abstraction of the revolver was
an incident of his escape from the prison for American convicts at
Shanghai, an offense for which he has already been sentenced. As
it does not appear to have been a case of larceny for the purpose
of gain and as the defendant has pleaded guilty we will not impose
the maximum penalty of one year's imprisonment, or a fine of two
hundred dollars or both, but taking into account the facts above
mentioned the defendant is sentenced to imprisonment for six months,
to be served (after the expiration of the sentences heretofore im-
posed upon him by this Court and after transfer from the Prison
for American Convicts at Shanghai, China) in Bilibid Prison,
Manila, Philippine Islands, the place of incarceration designated by
the Attorney-General of the United States under authority con-
ferred by sec. 5546 of the Revised Statutes.

He is further adjudged to pay the costs of this prosecution.

IN THE UNITED STATES COURT FOR CHINA.

John A. Richards, Plaintiff, v. Mary Paine Richards,

Defendant.

[Cause No. 424; filed May 1, 1915.]

SYLLABUS.
(By the Coixrt.)

1. DIVORCE: The Jurisdiction of this court to apply and enforce

Acts of Congress relating to divorce reaffirmed.

2. Id.: Id.: Proceedings in Rem. This court has jurisdiction of a

proceeding in rem regardless of the residence or nationality of
a personal defendant therein.

3. Id. : Id. : Id. : A suit for divorce without seeking alimony or other

relief in personam is such a proceeding.

4. Id. : Id. : Id. : The Object of such a suit is merely to determine

the plaintiff's status; a foreigner may, therefore, be made de-
fendant and served by publication.

5. Id.: Voluntary Appearance. Jurisdiction of the subject matter

being conferred by law, defendant waives jurisdiction of the
person by a voluntary appearance.

6. Id.: Evidence found to establish the defendant's adultery and to

justify a decree of divorce a vinculo matrimonii.

7. Id.: Relief Restricted. Question of remarriage and costs left to

tribunals of defendant's nationality.

Messrs. Fleming & Davies, by Mr. Fleming, for plaintiff.
Earl B. Rose, Esq., Acting Dist. Atty., amicus curiae.

RICHARDS V. RICHARDS, MAY 1, 1915. 481

LOBINGIER, J.:

The parties to this cause were married at the American
Consulate in Shanghai by Dr. John R, Hykes, an American
clergyman, on August 23, 1902. The husband is a native
born American citizen, while the wife is of Chinese birth
and parentage. The husband now seeks a divorce alleging
in his petition :

"That between the month of December, 1913, and the date of this
petition at divers dates, times and places within and in the vicinity
of Shanghai, China, the said defendant has committed adultery with
one E. Von der Linde.

"That at Shanghai, China, on the 26th day of December, 1914,
the said defendant disregarding the solemnity of her marriage vow
wilfully left the bed and board of the plaintiff and deserted him
and ever since the 25th day of January, 1915, until the date of this
petition has lived and still is living in a state of open and notorious
adultery with the aforesaid E. Von der Linde, at Shanghai, China.

"That there are no issue of said marriage."

Plaintiff's prayer is "that the bonds of matrimony be-
tween himself and the defendant be dissolved" and no
pecuniary or further relief is asked. The defendant pre-
sented no answer but has filed a voluntary appearance.

The first question to be determined is one of jurisdiction.
That this Court is authorized to apply and enforce all
applicable acts of Congress,' including those relating to
divorce,^ is now well established, and this would ordinarily
remove any question as to jurisdiction of the subject matter.
On the other hand, the marriage of the defendant, even tho
of alien birth, would normally change her citizenship to
that of her husband,'' which would likewise give jurisdiction
of the person. The difficulty in the case arises from the
fact that the defendant is not of a class "who might herself
be lawfully naturalized" in any other way.* The question

'U. S. Rev. Stats., sec. 4086; Biddle v. U. S., ante, p. 120.

- Cavanagh v. Worden, ante, p. 365.

'U. S. Rev. Stats., sec. 1994.

'U. S. Rev. Stats., sec. 2169; 2 Cyc, 111, note 19. See, however,
Hinckley, American Consular Jurisdiction in the Orient, 79, 80, where
it is observed (note) : "Marriage of a Chinese woman to a German
was declared in an agreement in 1888 between the governments of
the two countries to make the Chinese woman subject to German
jurisdiction. Notwithstanding the statutory inhibition against the

14008 O. W. 31

482 I EXTRATERRITORIAL CASES.

is whether this fact affects the jurisdiction not merely of
the defendant's person (which her voluntary appearance
waives) but (since a defendant in this Court must ordi-
narily be an American citizen) of the subject matter?

If this were an action in personam where pecuniary or
other relief were sought directly against the defendant,
a different question would be presented. But the American
government has reserved to itself jurisdiction of

"All questions in regard to rights, whether of property or person,
arising between citizens of the United States in China"'';

and has endowed this Court

"With all the judicial authority necessary to execute the provi-
sions of such treaties."'

Moreover it is the general rule that even extraterritorial
courts like this have jurisdiction of proceedings in rem
regardless of the citizenship of a defendant therein^

"Actions in rem are maintainable where the court has no jurisdic-
tion over the parties, but only over the subject matter." '

Now it is settled by a preponderance of authority '• that
a simple action for divorce, without alimony or other per-
sonal relief, is a proceeding in retn.

naturalization of Chinese, it was stated by Secretary of State Bayard
that the agreement between Germany and China would probably
'assist in determining the status, in China, of the Chinese wife of
an American citizen, assuming the marriage to be consensual and
monogamous.' For. Rel. (1888), Pt. I, p. 349; see also p. 319, 347,
683; and infra, p. 94."

°8 U. S. Stats, at Large, 597, Treaty of 1844, Art, XXV; Malloy,
Treaties, I, 203, mite, p. 2.

"Act of Congress of June 22, 1860, 12 U. S. Stats, at Large,
sec. 3, p. 73; U. S. Rev. Stats., sec. 4085.

' Papayanni v. Russian Steam Navigation Trading Co., ante, p. 12.

'Bishop, Marriage & Divorce (6th ed.), sec. 147. Cf. the same
author's Marriage, Divorce & Separation, sec. 27.

^England: Niboyet v. Niboyet, 4 P. D., 1, 12.

California: Newman's Estate, 75 Cal., 213; 7 Am. St. Rep., 146.

Illinois: Roth v. Roth, 104 111., 35; 44 Am. Rep., 81.

Missouri: Ellison v. Martin, 53 Mo., 575.

New York: Rigney v. Rigney, 127 N. Y., 408; 24 Am. St. Rep., 462.

Utah: Gibbs v. Gibbs, 26 Utah, 382; 73 Pac, 641; 14 Cyc, 580.

RICHARDS V. RICHARDS, MAY 1, 1915. 483

"The res is the status of marriage, local to the domicil." ^'

Hence the prevailing rule gives jurisdiction of such a
proceeding to the forum of plaintiff's residence. The
residence or citizenship of defendant is considered imma-
terial ; for the purpose of the proceeding is to fix the status
of the one M^ho invokes the Court's jurisdiction.

"Every State has an undoubted right to determine the status, or
domestic and social condition, of the persons domiciled within its
territory." "

This is the doctrine not alone of the American courts '^
but of authorities on private international law as vvell,
one ^'^ of whom discusses the question as follows :

"What are we to say, however, to the case where one spouse only
obtains naturalization in a foreign country and has himself divorced
there? If, as is the case in France, the law does not provide that
the naturalization of the husband affects the wife ipso jure, such
cases will occur not unf requently. Laurent " thinks that such a con-
flict, supposing that the personal law of the other spouse does not
allow divorce on the same conditions, is, from the point of view of
positive law, insoluble. He thinks, however, that the State to which
the one spouse has gone over, must give him or her a divorce with
all its consequences, and as a matter of fact judgments to this effect
have been pronounced both by the courts of first instance and by
the Appeal Court at Brussels." "

\^niere, as in this case, the Court is an extraterritorial
one, citizenship as well as residence on the part of the
plaintiff might be necessary; but here the plaintiff meets
that requirement. There seems to be no doubt, conse-
quently, that this Court has jurisdiction of the subject
matter.

II.

Under the foregoing doctrine, jurisdiction of defendant's
person is not essential since it is affected indirectly, if at

"Bishop, Marriage & Divorce, (6th ed.), sec. 147.

" Taney, C. J., in Strader v. Graham, 10 How. (U. S.) 82, 13 L.
ed., 337.

'=14 Cyc, 588, 589; Tolen v. Tolen, 2 Blackf. (Ind.) 407; 21 Am.
Dec, 742.

"Bar, Private International Law, (2nd ed.), 386.

" Le droit civil international (Brussels & Paris, 1880-2) V, sec. 147.

"Decisions of May 12 and Dec. 31, 1877; Jurisprudence, V, 513.

484 I EXTRATERRITORIAL CASES.

all, by the relief sought and granted, the main purpose
of the action being the determination of plaintiff's status.
That of defendant is left to be fixed by the law and Courts
of defendant's domicil. Accordingly, most American tri-
bunals regularly take jurisdiction where the service of
process upon the defendant is constructive only and effected
by publication."' In this case, however, the defendant was
not only served with a summons within this Court's ter-
ritorial jurisdiction but has voluntarily appeared and sub-
mitted herself thereto. That alone has been considered
sufficient to confer jurisdiction upon a court of such a
character as this.^^

III.

The ground set forth in the petition is adultery and the
evidence in support thereof appears to be conclusive. In-
deed there is disinterested testimony that defendant herself,
after seeing the petition, stated that it was substantially
true. This is a ground for absolute divorce under the acts
of Congress relating to both the District of Columbia ^®
and Alaska '■' which we are authorized to enforce.-"

There being no question of fact in the case, and the
Court's jurisdiction being thus established, we must find
that the plaintiff is entitled to a decree of divorce a vinculo
matrimonii.

It is accordingly considered and decreed that the bonds
of matrimony heretofore existing between the plaintiff and
defendant be and they hereby are dissolved absolutely. If
the defendant were clearly an American citizen we should
apply the statute -^ which prohibits remarriage by the guilty
spouse. But as it is, we shall not attempt to impose that
restriction nor to require the payment of costs by her.

"14 Cyc, 588, 589 notes 97, 98.

" Papayanni v. Russian Steam Nav. etc., Co., ante, p. 12.

" Act of Congress of March 3, 1901, 31 U. S. Stats, at Large,
sess. II Ch. 854, sec. 966.

" Act of Congress of June 6, 1900 sess. I, 31 U. S. Stats, at Large,
Ch. 786, tit. II, sec. 467 (2).

=" Biddle v. U. S., ante, p. 120.

" Cited in note 18 supra.

UNITED STATES V. ARMSTRONG, MAY 8, 1915. 485

IN THE UNITED STATES COURT FOR CHINA.
United States v. John R. Armstrong.

[Cause No. 425; filed May 8, 1915.]

SYLLABUS.
(By the Court.)

1. LIBEL: What Constitutes. A publication which charges that a

firm of attorneys received fees from both parties to a cause
in which they were employed and were called before the Court
and compelled to withdraw from said cause is libelous per se.

2. Id.: Justification. Such a publication may be justified only by

showing that it is (1) "true" and (2) "published with good
motives and for justifiable ends."

3. Id. : Malice. The second element of justification is not established

where the evident purpose of the publication is to injure the
parties referred to in their business.

4. Id.: Evidence aliunde is admissible to show what parties were

intended if the publication is at all ambiguous on that point.

5. Id.: Justification: Onus Probandi. The burden rests upon de-

fendant to show both elements of justification.

6. Id. : Id. : Evidence reviewed and found insufficient to show that

the charge in question is either "true" or "published with good
motives and for justifiable ends."

Earl B. Rose, Esq., Acting and Special Dist. Atty., for the
prosecution.

H. D. Rodger, Esq., for the defense.

Lobingier, J.:

This is a prosecution for libel. The defendant, who is
the manager of a concern known as "The International
Detective Agency," admits (pp. 190-195)^ that he drafted
a statement (Ex. p. 1) reading as follows:

"Crooked.

Fleming & Davies was caught taking money from both Plaintiff
and Defendant agents in a Mixed Court case Woo Kien Kwung
Plaintiff and Woo Cho Tsai Defendant. Fleming & Davies was
called before the U. S. Court for China by Judge Holcomb, and
U. S. Court ordered Fleming & Davies to retire from the case. The
receipts from both Plaintiff and Defendant agents can be seen at

' References are to Reporter's Note Books.

486 I EXTRATERRITORIAL CASES.

48 Kiang'se Rd. International Detective Agency or at Judge Hol-
comb's office at Hongkong Rd."

He further admits that, under his direction, this state-
ment was translated into Chinese and printed in that lan-
guage in the form of a circular (Ex. A), copies of which
were mailed to "about one hundred and thirty-five * * *
business men and firms of all nationalities of Shanghai"
(Ex. R). A translation (Ex. B) of the circular into
English was introduced in evidence and reads as follows :

"Never never read this.

Lawyer Leeming received fees from both parties to a suit. The
Plaintiff was by the name of Woo Kien Kwung of Avenue Paulun
and Defendant by the name of Woo Tsoh Che of "Ku-ban" Road.
Subsequently Lawyer Leeming was summoned by Lawyer Ho Chin
Kung to the United States Court to make explanations. The United
States Court then directed that henceforth this matter shall be no
concern of yours.

The receipts for the fees received from both parties can be (in-
spected) at the International Detective Agency, 48 Kiangse Road,
or Ho Chin Kung's office at Hongkong Road."

The circular was unsigned and contained no hint of its
authorship but defendant now accepts the sole responsibil-
ity therefor. Its reference to "Lavvyer Leeming" render's
evidence alhmde admissible to show who is meant.- Such
evidence was off"ered (pp. 316, 337), to the effect (and
it is not seriously disputed) that the circular refers to
Messrs. Fleming & Davies, a firm of attorneys practicing
in Shanghai, and members of the bar of this Court.

That such a publication is libelous pei- se has not been
questioned. Libel has been defined as

"Any published writing that imputes criminal or dishonest con-
duct to another, or that tends to disgrace him and bring him into
hatred, contempt or ridicule." ^

In the case of a lawyer, whose reputation for fidelity
to his clients is the most important part of his capital, a
statement implying that he has represented adverse in-

' Worcester v. Ocampo, 22 Phil., 86, 87; Russell v. Kelly, 44 Cal.,
641.

=• Bailey v. Holland, 7 App. Cas. (D. C), 189. Cf. White v.
Nicholls, 3 How (U. S.), 266; 11 L. ed., 591.

UNITED STATES V. ARMSTRONG, MAY 8, 1915. 487

terests or otherwise proven false to his trust is peculiarly
actionable/

At common law the truth of the matter contained in a
libelous publication was no defense; indeed it was not even
received in evidence.^ The maxim current in the books ^
was "the greater the truth the greater the libel." It was

"immaterial," says Dr. Bishop ' "whether the libelous words are true
or false. Their effect on the public and individuals was supposed
to be, and perhaps it is, the same in either case."

For this extraterritorial jurisdiction, however, Congress
has changed the common law rule by providing as follows :

"Any publication of a libel shall be justified if it appear that the
matter charged as libelous was true and was published with good
motives and for justifiable ends." '

The defense in this case is that the statements in the
publication first above quoted are true. It will be seen,
however, that, according to the provision just referred to,
that alone would not be sufficient, for, as was said in
construing a similar statute, "the alleged libelous matter
must not only be proved to be true, in order to constitute
a defense, but it must be proved that it was published both
with good motives and for justifiable ends." '-^ The statute,
as we have seen, is in derogation of the common law; i. e.,
it provides a defense where none previously existed, and
it must, therefore, be strictly construed and both elements
of the defense must be established. We may then inquire
first whether the circulars in question were published and
distributed "with good motives and for justifiable ends."

A statement (Ex. R) signed by the defendant in the
presence of two witnesses recites that he "committed this

*Chipman v. Cook, 2 Tyler (Vt.), 456; Mosnat v. Snyder, 105 la.,
500, 75 N. W., 356; Ludwig v. Cramer, 53 Wis. 193, 10 N. W., 81.

° Com. V. Chapman, 13 Mete. (Mass.), 75; Com. v. Snelling, 15
Pick. (Mass.), 341; State v. Putnam, 53 Or. 266, 100 Pac, 2.

° See an article in the American Law Review, XLIX, 200. Cf. 9
English Ruling Cases, 193.

' New Criminal Law, II, sec. 918.

' Act of Congress of March 3, 1901, 31 U. S. Stats, at Large, sess.
II, Ch. 854, sec. 817. To the same effect is Act of Congress of March 3,
1899, 30 U. S. Stats, at Large, sess. Ill, Ch. 429, tit. I, sec. 205.

' U. S. V. Ocampo, 18 Phil. 55, affirmed, 234 U. S. 91, 58 L. ed. 1231.

488 I EXTRATERRITORIAL CASES.

act or acts in the spirit of revenge with the intention of
injuring and defaming William S. Fleming and James B.
Davies." Testifying later in his own behalf defendant
stated: "I never would have signed it if I had known it
was there." He does not, however, deny the testimony
(p. 373) of a witness to the paper that it was read over
to him before signing. The objection to said exhibit on
the ground that defendant was not cautioned that it might
be used against him is untenable. Such a rule has, indeed,
been established in some jurisdictions by statute but there
is none such here and the only requirement is that the
signature should not have been obtained by force, violence
or intimidation, nothing of which is claimed in this case.

Moreover, aside from the paper itself, there is evidence
of similar verbal statements by defendant, of his own accord.
Thus the ol!icer who assisted in the search of the defend-
ant's premises and who made the arrest testifies (p. 56)
that defendant stated that he caused the publication in order
to injure complainants, while another witness (Richards,
p. 368) declares that defendant stated that "he wanted to
get" them "put them out of business" and "run them out of
the country."

The defendant in testifying admits that he is unfriendly
to the principal complainant and states that he wanted
"to let the public know how he was doing business." But
if the purpose had been merely to bring to the attention
of the public the fact that defendant had a grievance, or
wished to make a charge, it would hardly have been neces-
sary to do so anonymously nor to have concealed all marks
indicating from whom the charge emanated. His counsel
frankly states (Brief p. 24) that he "does not commend
the secret manner in which the defendant does this." It
appears that complainants have a large Chinese clientele
and the employment of that language and of such a means
indicates a purpose to injure them with prospective clients
and to do so in such a way as to give no opportunity for
defense nor to show who made the charge, nor upon what
it might be based. Moreover, even if we were to accept
defendant's claim that he merely wished to warn the public
it would not meet the requirement of "good motives and

UNITED STATES V. ARMSTRONG, MAY 8, 1915. 489

for justifiable ends." Such a purpose was claimed, and
with much more reason, in leading Massachusetts cases
where the defendants were nevertheless convicted. In the
earlier of these ^° Chief Justice Shaw said :

"It is not necessary, to render an act malicious, that the party
be actuated by a feeling of hatred or ill-will towards the individual,
or that he entertain and pursue any general bad purpose or design.
On the contrary, he may be actuated by a general good purpose,
and have a real and sincere design to bring about a reformation of
manners; but if in pursuing that design, he wilfully inflicts a wrong
on others, which is not warranted by law, such act is malicious.

A man may, by his example and by his conduct, be doing great
injury to society; he may in fact be guilty of the most ruinous
crimes, and that well known to an individual; that individual may
be actuated by the most pure and single-hearted desire to rid society
of so mischievous a character and entertain the firmest conviction
that he would be doing great good by it; and yet it is very certain,
that in contemplation of law, any attempt upon his life, his liberty,
his person or property, made in the accomplishment of such a pur-
pose, would be unlawful, and therefore malicious. This is founded
upon a principle, essential to the very existence of a government of
laws and of civil liberty, that no man can be punished except by
the operation of law, and after a trial according to the forms of
law, with such aids and shields as the rules of law afford him; that
individuals cannot take the execution of the laws into their own
hands; and that it is the duty of every good citizen, if he knows
of any offence against society, not to assail the offender, but to
bring the matter before the proper tribunals, for inquiry, trial,
and punishment."

In the later case ^' the same distinguished judge declared
that the element required by such a statute was not one of
"malice in its popular sense, viz., that of hatred and ill will
to the party libelled, but an act done wilfully, unlawfully,
and in violation of the just rights of another." If the
publication complained of amounts to such an act, and we
think it does, it cannot be justified on the ground that
its author was merely seeking to enlighten the public, even
if the surrounding circumstances would permit the in-
ference that such was the chief motive.

We have seen that if either of the elements authorized
by the statute as justification is lacking, the defense must

"Com. v. Snelling, 15 Pick. 337.
" Com. V. Bonner, 9 Mete. 410.

490 I EXTRATERRITORIAL CASES.

fail, and it not appearing that the publication was made
"with good motives and for justifiable ends," it is tech-
nically unnecessary to consider the other element of the
defense, viz., that the charge contained in the publication
is true. Since, however, this element forms the burden
of counsel's argument and since, moreover, this is the
feature which most concerns the complaining witnesses,
whose professional reputation is involved, we shall now
proceed to examine the evidence for the purpose of ascer-
taining whether or not they did accept fees from both
parties to a suit in which complainants were employed by
only one.

It appears that in 1914 a civil cause was pending in the
Mixed Court of Shanghai in which one Woo Kien Kwung
was plaintiff and Woo Cho Tsai and Woo Lai Sung were
defendants. Thru the accused in the case at bar the firm
of Fleming & Davies was employed to represent said plain-
tiff. Mr. Fleming testifies (p. 364) that his original charge
was two hundred taels; that subsequently he received a
partial payment of one hundred dollars, and also an ad-
vance of seventy-nine dollars for Court costs ; that later the
case was settled, independently of said attorneys, and that
they agreed to accept fifty dollars in lieu of the balance of
their fee, which sum was paid to Mr. Fleming, in plaintiff's
behalf, by one Chang Ah Zeh, to whom the following
receipt (Ex. G) was given:

"Shanghai, Oct. 16th, 1914.

Received of Mr. Chang Ah Zeh the sum of Fifty Dollars on ac-
count of Wu Kien Kwung in full settlement of balance of fees due
from the said Wu Kien Kwung for professional services rendered.

$50.00 (Sgd.) Fleming & Davies."

It is this item of fifty dollars which forms the basis of
the present defendant's charge, his claim being that the
amount actually came from the defendants in the Mixed
Court case. If that were true, the most satisfactory evi-
dence thereof would have been that of said defendants
themselves; yet they were not called as witnesses by the
defense in this case, nor was any explanation given for
failing to call them. One of them (Woo Lai Sung) was

UNITED STATES V. ARMSTRONG, MAY 8, 1915. 491

called, however, on behalf of the prosecution and testified
(p. 193) that he had never authorized the payment of any
money to Mr. Fleming and had never said that he had done
iso (p. 194). The witness further stated (p. 193) that
the other Mixed Court defendant (Woo Cho Tsai) had
been bed-ridden for twenty years at the time of the trial;
but his son, Woo Lai Ding was called by the prosecution
and testified (p. 220) that he likewise had never paid, or
authorized the payment of, money to Mr. Fleming. It
would thus appear that the latter's positive denial of ac-
cepting fees from said defendants receives corroboration
from them.

It is not claimed, however, and no evidence has been
offered, that they themselves actually made or authorized
any such payment. The most that is claimed in the present
defense is that Chang Ah Zeh, who actually handed the
fifty dollars to the complaining witness, represented said
defendants. Chang Ah Zeh himself testified (p. 398), how-
ever, that he paid the fifty dollars at the instance and
request of, and as an advance to, one Woo Sze Ching, son
of the Mixed Court plaintiff who, according to the latter
(p. 94) had active charge of his interests, he being elderly
and infirm. There is no contradiction of Mr. Fleming's
testimony to the effect that the balance of his fee due from
plaintiff had not been paid and Woo Sze Ching admits
(p. 36) prior negotiations with Chang Ah Zeh for a loan.

Woo Sze Ching testifies (p. 20) that he never authorized
Chang Ah Zeh to pay the money to Mr. Fleming but he
admits that he had learned of the payment from one Ma
Lai Ching who testifies (p. 145) that he was present when
the payment was made. He further testifies (p. 26) that
he never said that Mr. Fleming had taken fees from both
sides and on cross-examination (p. 58) he admits that he
did say that Chang Ah Zeh had paid the fifty dollars
for him, which statement he repeated to the District At-
torney who says that Woo Sze Ching laughed at the con-
trary claim. The latter denies (p. 22) that he was present
at Mr. Fleming's office when the money was paid, but he is
contradicted not only by Mr. Fleming but by three other

492 I EXTRATERRITORIAL CASES.

Chinese witnesses, Chang Ah Zeh (p. 392), Y. C. Nyi (p.
66) and Ma Lai Ching (p. 145) who testified not only that
he was present but that he sanctioned the payment as made
in his behalf. There are, indeed, certain discrepancies
between the testimony of these various witnesses as to
minor circumstances but these at least negative the idea
of collusion between them and do not relate to the material
fact of payment in plaintiff's behalf.

It may, however, be observed on this point that even
if we were to accept the statement that such payment was
not authorized, in preference to Chang Ah Zeh's testimony
that it was, this would at most show no more than that
the payment did not emanate from the plaintiff; it would
not, especially in view of their disclaimer, prove that the
payment came from the defendants in the Mixed Court
case; and if Chang Ah Zeh paid the money in his own
behalf (which must have been the case if he did not pay
it on behalf of either plaintiff or defendants) it would con-
stitute no proof whatever of the charge made against the
complaining witnesses in the publication complained of.

Defendant's counsel summarizes his other evidence as
follows :

"Leon Crowell, an absolutely disinterested witness, testified that
Chang Ah Zeh told him that the $50 was paid on behalf of his
people' meaning the defendants in the Mixed Court action. This
testimony is corroborated by three other witnesses Mr. Armstrong,
Kwok Yong Loong, who translated for Mr. Armstrong in all these
matters, and Sung Ah Loo who as Mr. Armstrong's clerk and de-
tective had full knowledge of this matter."

But Crowell also stated "I don't know whether he said
'his people;* that is iTiy way of getting his meaning; the
expression was for his side of the case," which was quite
consistent with Chang Ah Zeh's testimony that he paid
at plaintiff's instance. Again Sung Ah Loo stated specif-
ically and repeatedly that Chang Ah Zeh did not say for
whom he paid the $50, while Kwok Yong Lung claims
merely that the former said he paid it for "his defendants,"
which seems neither probable nor satisfactory. Besides
it was only thru the last witness that defendant, if not
Crowell, talked with Chang Ah Zeh and the latter's

UNITED STATES V. ARMSTRONG, MAY 8, 1915. 493

answers, as they reached the others, were actually those
of Kwok Yong Lung.

But if it were really true that Chang Ah Zeh said that
he paid the money in behalf of the Mixed Court defendants
it would afford no competent evidence here that he did
so pay it. For such a statement would be mere hearsay,
not being under oath nor subject to cross-examination.^^
And when Chang Ah Zeh did testify under oath and subm.it
to cross-examination he not only denied making such state-
ments but declared, as has been seen, that he paid the money
in plaintiff's behalf.

Much of defendant's argument is devoted to other phases
of the Mixed Court case — the advisability of settling it,
the relations between complainants and the present defend-
ant, and the question whether the latter was fairly treated
by the for.rer. But such questions are not involved here
and no formal complaint embodying them has ever been
presented. The only phase of the Mixed Court case which
is properly before us is that which touches the payment
of the $50, the evidence concerning which has just been
reviewed.

It is urged that the accused, in publishing the state-
ments complained of, merely repeated what had been told
him and what he in good faith believed. But under the
law of libel this, even if true, would not relieve him. As
was said in a similar case by Chief Justice Shaw :

"How is this defence to be made? By proof of the truth of the
matter, charged as libellous; not his belief of the truth, not his in-
formation, nor the strength of the authority upon which such belief
was taken up.""

The charge in question, too, must be understood as one
that the complainants had knoivingly accepted fees from
both sides. No one would infer from reading the publica-
tion that its author meant to say that they had taken

^'^ Wigmore, Evidence II, sec. 1361 et seq.

"Com. V. Snelling, 15 Pick. (Mass.), 342. Cf. Com. v. Bonner,
9 Mete. (Mass.), 410. "The want of actual intent to vilify is no
excuse for a libel; and if a man deems that to be right which the
law pronounces wrong, the mistake does not free him from guilt.
(1 Bishop, Criminal Law, sec. 309; Rejmolds v. U. S., 98 U. S. 145,
25 L. ed. 244)" U. S. v. Dick, 30 Phil., 80; 13 Off. Gaz. 778.

494 I EXTRATERRITORIAL CASES.

money innocently, supposing that it had come from their
own client. If such had been the intended meaning, there
would have been no reason whatever for printing or dis-
tributing the circular. The charge that these complainants
accepted money from both sides must be treated as a
charge that they did so in full knowledge of all the facts,
and it does not relieve the author of the charge to say
that he had information that it had been so paid in such
a way that complainants might not have known the source
of payment.

Finally, it must not be overlooked that the charge in
the publication complained of is not merely that of taking
fees from both parties to a cause; for both the original
English version and the translation, state in effect that
the complainants were formally summoned before this
Court and compelled to withdraw from the case. Such
is the inference which the ordinary reader would draw
from the publication; yet no proof is offered in support
of it and no pretense made that it is true. To say of a
practicing lawyer that he has been called before the Court
from which his authority derives and compelled to with-
draw from a case is, of itself, a libelous imputation and
in this instance there is no attempt to justify it.

The fundamental error of the defendant's argument is
the assumption that the burden rests on the prosecution to
prove that the charge complained of was false. The pros-
ecution's only burden is to prove the publication, which
in this case is admitted, and its libelous character, which
is here self-evident. The burden of justification by prov-
ing that the charge is "true and was published with good
motives and for justifiable ends" necessarily rests upon
the defendant ^* for it is purely a matter of defense. In

^* California: Hearne v. De Young, 119 Cal., 670.

Massachusetts: Com. v. Bonner, 9 Mete, 410.

Philippines: U. S. v. Ocampo, 18 Phil., 54; (affirmed, 234 U. S.
91, 58 L. ed., 1231); U. S. v. Prautch, 10 Phil., 562; U. S. v. Ortiz,
8 Phil., 753.

Defendant's counsel cites no case holding the contrary. Some of
his authorities are to the effect that the truth of the publication is
a sufficient defense; but this is by virtue of statutory provisions
which are not in force in this jurisdiction, and even these do not
change the rule as to the burden of proof.

ALLEN V. ALLEN, JUNE 10, 1915. 495

our judgment the accused has not met that burden ; he
has not even produced competent evidence from which we
could find that the charges made in the publication com-
plained of are true. We must accordingly find that justifi-
cation has not been shown and that the defendant is guilty
of the crime of libel.

The statutes ^^ prescribing the penalty for this offense
provide for both fine and imprisonment. But the accused
was once before convicted by this Court of a similar
offense ^^ and the punishment was limited to a fine, which
was evidently not effective. Besides, the repetition of the
offense is in itself an aggravating circumstance requiring
a severer penalty. In view of this and of the manner
in which the offense was committed we feel that nothing
short of a term of imprisonment will suffice.

The accused is accordingly sentenced to two years of
imprisonment, to be served in the prison for American
convicts at Shanghai, China, until due provision is made
for his lawful incarceration elsewhere, and to pay the costs
of this prosecution.

IN THE UNITED STATES COURT FOR CHINA.

John Thomas Allen, Petitioner, v. Susan Allen, Re-
spondent, Abraham Houston, Co-respondent.

[Cause No. 435; filed June 10, 1915.]

SYUABUS.

(By the Coiirt.)

1. DIVORCE: ADULTERY: DEGREE OF Proof. A charge of adultery

cannot ordinarily be established by the denied and uncorrobor-
ated testimony of a single witness.

2. Id. : Id. : Evidence reviewed and found insufficient to sustain such

charge in the case at bar.

3. Id. : Residence. Where a petitioner in a divorce action has the

residential qualification the Court has jurisdiction to grant af-

'' Act of Congress of March 3, 1901, 31 U. S. Stats, at Large, sess.
II, Ch. 854, sec. 815. Cf. Act of March 3, 1899, 31 U. S. Stats, at
Large, sess. Ill, Ch. 429, tit. I, sec. 30.

"U. S. V. Armstrong, Criminal cause No. 93.

496 I EXTRATERRITORIAL CASES.

firmative relief upon a cross-bill filed by a respondent who is
without such qualification.
4. Id. : Alimony. Allowance of alimony to the extent of approxi-
mately one-third of a husband's earnings held not unreasonable
and counsel fee awarded in accordance with acts of Congrress.

Arthur S. Allan, Esq., for petitioner.
Joseph W. Rice, Esq., for respondent.

LOBINGIER, J.:

This is an action for divorce on the ground of adultery.
The marriage between the parties on April 6, 1911, is un-
disputed and the petition charges that respondent has been
found several times in a conpro nising position, the first
time within less than six months after the marriage. Each
of these alleged compromising acts is vigorously denied
by the respondent and to none of them is there more than
one witness, that to the first being the petitioner himself
and the witnesses to the other two being respectively a
Chinese house boy who has worked for respondent and a
Chinese amah employed in a house where respondent lived.
It is, to say the least, quite unusual to base a finding of
adultery on the testimony of a single witness thus denied.^
The doctrine laid down in a work of authority is as follows :

"The proof of adultery as a ground for divorce must be clear
and positive * * * The court will carefully weigh the evidence,
taking into consideration its inherent probability, the credibility of
the witnesses, and the character of the evidence offered by the ac-
cused in denial or explanation; and if so considered the evidence
of guilt is inconclusive a divorce will be denied." ^

Unless, therefore, corroborating circumstances are found
to supplement the testimony of each of these witnesses
concerning the act claimed to have been witnessed, the
testimony here would not justify us in granting a decree
for petitioner. As to the first incident, alleged to have
occurred in Vallejo, California, we do not think it can be

'Scheming v. Scheffling, 44 N. J. Eq. 438, 15 Atl. 577; Main v.
Main (N. J. Ch. 1892) 24 Atl. 1024; Larrison v. Larrison 20 N. J.
Eq. 100.

'U Cyc, 692.

ALLEN V. ALLEN, JUNE 10, 1915. 497

said that such circumstances appear. The petitioner
does not even show by any evidence, other than his own,
that he ever had the venereal disease which he claims
to have contracted from his wife and the state of the
evidence is merely one of assertion on his part and denial
on hers and this state extends to the time when peti-
tioner ceased to provide support for respondent, he claiming
that this began upon the discovery of her alleged un-
faithfulness while she states that it did not begin until
long after. The letters (Exhibits 1-7) corroborate re-
spondent on this point since they purport to have been
written by petitioner long after the time of said alleged
occurrence and not only contain no mention of it but their
tone and contents are quite inconsistent with such an
occurrence.

The petitioner indeed denies the genuineness of these
letters, but it requires quite a stretch of the imagination
to induce the belief that respondent could have caused
the fabrication of so many different letters, had them
mailed from various ports where petitioner is known to
have been and foreseen so long ago and the bringing of this
action in which alone such letters are of any great im-
portance to her. Moreover the signatures, especially that
of Ex. 4, strongly resemble the signature to the petition
which petitioner admits is his.

As to the other charges we do not think the testimony of
the Chinese houseboy that the co-respondent, Houston, spent
the night at defendant's house, or the testimony of the
amah that he spent another night in her room is any
more strongly corroborated. The fact that she once wrote
a note to Houston and may have inquired for him at the
Astor House bar is explained by her on the ground that
she was trying to open a restaurant and desired to have
Houston's assistance in obtaining the patronage of colored
sailors, and the fact that the latter, as petitioner himself
admits, gave or attempted to give the letter to petitioner
shows that there was no effort at secrecy and strongly
indicates the innocent character of the transaction. The
respondent's landlady testifies that it would have been

14008 O. W. 32

498 I EXTRATERRITORIAL CASES.

practically impossible for anyone to have entered her house
and remained there on the night in question without her
knowing it, and both she and two other ladies who knew,
and were more or less associated with, respondent during
the said period testified, without objection, to her exem-
plary conduct at that time. They also (one of them a
medical missionary) testified to a state of ill-health on
the part of respondent which would make it improbable
that she would either desire, or be sought for, any such
relations as she is charged with maintaining, especially
with a man so much her junior as Houston. It seems
to us much more consistent with the circumstances to
accept his explanation that he merely called to see her
on two or three occasions in order to help an older and
needy woman of his own race who was trying to supply
for herself the subsistence which her husband had refused
to provide.

We have not overlooked the Scotch doctrine ^ discussed
by Mr. Bishop, but until a full report thereof is available
it would seem dangerous to attempt any application of it.
It is an old adage that a chain is no stronger than its
weakest link and if it be the rule, as appears above, that
the testimony of a single witness, denied and uncor-
roborated, is insufficient to prove a specific act of adultery,
it would seem hazardous to uphold three such insufficiently
proved charges.

In the case at bar we are of the opinion that the re-
spondent's testimony, corroborated by the letters, quite
overcomes petitioner's testimony as to his first charge ; and
that the uncorroborated statements of the Chinese houseboy
and amah, each relating to a different occasion, are more
than overbalanced by respondent's testimony, corroborated
as it is by her landlady and by the testimony of two others
regarding her condition and conduct. Indeed, if petitioner
would not hesitate to deny his own signature, as seems to
have been the case, we could hardly expect him to be more
scrupulous in obtaining the testimony of the two Chinese.
We must therefore find that the charges of adultery are not
sustained by the evidence.

Walker v. Fraser, 9 Scotch Sess. Cas., 3rd ser., 1091, 1092.

ALLEN V. ALLEN, JUNE 10, 1915. 499

II.

Respondent files a cross-bill asking for a divorce on the
ground of desertion, which ground is expressly admitted
in the reply. If she were seeking this relief as an original
petitioner we should be disposed to deny it on the ground
that she has not proved a two years' residence within the
jurisdiction as required by what appears to be the latest
Congressional enactment * on the subject. But petitioner's
residence for a much longer period is expressly admitted
and is otherwise proved, and the rule is that

"a statute making residence of plaintiff a prerequisite to the exer-
cise of divorce jurisdiction does not preclude a non-resident defend-
ant from filing a cross-bill and obtaining a decree of divorce against
plaintiff." "

We must therefore hold that we have jurisdiction to grant
the relief sought by respondent and find that she is entitled
thereto.

Respondent also prays in her cross-bill for an allowance
of alimony and counsel fee in defending this action. Peti-
tioner, who is an oiler in the United States Navy, is receiving
a monthly salary of fifty-eight dollars and eleven cents
United States currency, while the respondent who is some-
what elderly and infirm has been receiving no support from
him for a considerable time. Under such circumstances
we do not consider an allowance of twenty dollars United
States currency per month as alimony and fifty dollars
Mexican currency as counsel fee unreasonable, especially
in view of the acts " of Congress which expressly provide
for such allowance, even before decree.

It is accordingly considered and decreed that petitioner's
prayer for divorce be denied at his costs, but that a decree
of divorce a mensa et thoro be, and the same is hereby,
granted to the respondent, Susan Allen, from the petitioner,
John Thomas Allen, neither party, however, being per-

*Act of March 2, 1903, Sess. II, 32 U. S. Stats, at Large, Ch.
978, sec. 2, p. 944.

' 14 Cyc, 589.

'31 U. S. Stats, at Large, Sess. II, Ch. 854, sec. 975; Id. Sess. I,
Ch. 786, Tit. II, sec. 471.

500 I EXTRATERRITORIAL CASES.

mitted to remarry, and that the said petitioner be required
to pay the said respondent as alimony the sum of twenty
dollars United States currency monthly, beginning* with the
present month of June, 1915, and that in addition he pay to
the attorney of record for the said respondent in this cause
a counsel fee of fifty dollars Mexican currency, and pay the
costs of this action.

IN THE UNITED STATES COURT FOR CHINA.

Henry P. Newman's Mandchurische Export Gesel-
SCHAFT, m. b. h., V. Samuel Zimmerman and Robert H.
Chandless, doing business under the firm name and
stjde of Batouieff, Zimmerman and Company.

[Cause No. 417; filed June 25, 1915.]

SYLLABUS.
(By the Court)

1. CONTRACTS: EVIDENCE examined and found to show not one con-

tinuous course of dealing between the parties but that the
contract sued upon was a new and independent one resulting
from a counter offer by defendant.

2. Id. : Offer and Acceptance. An offer may be accepted by deed

as well as by word and acceptance may even be inferred from
silence; hence delivery by a vendor, following a written offer
of purchase by the vendee, not rejected, will be treated as an
acceptance of such offer.

3. Id.: Sale: Quality. The vendor of commodities intended for resale

is obliged to furnish those of merchantable quality.

4. ACTIONS: Venue. Sec. 4085, U. S. Rev. Stats., fixing the place

of trial in Consular Courts, has been superseded as regards
this Court by the provision in its organic act for annual ses-
sions at fixed points with discretionary power to hold other
sessions at any Consulate.

5. Id.: Under said act the place of trial is not a jurisdictional matter.

Messrs. Jernigan & Fessenden, by Mr. Fesse'ivden, for
plaintiff.

Messrs. Allen & Lucker, by Mr. Allen, for defendants.

Lobingier, J.:

This is an action to recover the balance due upon sales
of beans by the plaintiff to the defendant. The principal

NEWMAN'S COMPANY V. ZIMMERMAN, JUNE 25, 1915. 501

items of the claim are one of Rs. 9,231.32 which is admitted
in the answer (paragraph 5) and another of Rs. 55,518.54
which is disputed. As to the latter item the amended
answer alleges:

"In July 1914, the plaintiffs offered 100,000 pounds of beans to
the defendant firm lying at various points on the Sungari river.
The defendant firm by a letter dated the 20th of July, 1914, agreed to
take deliveiy of 100,000 pounds of beans on the conditions set out
in said letter but the plaintiffs failed forthwith so to deliver, post-
poning delivery from time to time till there came the declaration of
war between Russia and Germany and a consequent fall of prices *
* *. The said manager of the plaintiff company thereupon begged
the defendant nevertheless to take the plaintiffs' beans * * *
adding that the parties would come to terms thereafter and that the
defendant's firm should suffer no loss. The defendant agreed to take
delivery upon these conditions."

In its replication "plaintiff further denies that the terms
of the original agreement were altered as alleged in para-
graph six of said answer."

Upon the issue thus raised evidence was taken and
the parties have submitted the case under a stipulation
requesting special findings upon the following questions :

"1. What was the original contract between said parties?

"2. Was said contract subsequently modified or substituted by
another?

"3. If modified then in what particulars and to what extent and
if substituted, by what other agreement?"

While Zimmerman, one of the defendants, testifies (p. 1)
to ''considerable transactions" between the parties, that
first appearing in the correspondence is evidenced by de-
fendant's letter of April 19, 1914, to plaintiff as follows:

"We hereby confirm having bought from you thru the broker
Bruecker 50,000 pood Beans, fair average quality, at the price of
75.5 kop. per pood net, free Barge on the pristans on the river
Sungari, however not lower down than pristan Sansing and not less
than a full cargo to be delivered at each port."

Under date of May 18, 1914, plaintiff wrote defendant
as follows:

"We hereby confirm having sold to you thru broker Mr. Bruecker
50,000 pood Beans good, fair average quality, crop 1913, at the price
of 75.5 kp. per pood net, franco pristans on the Sungari at our option,
but no lower pristan than Sansing."

502 I EXTRATERRITORIAL CASES.

These two excerpts, found in letters written apparently
nearly one month apart, seem to involve the same trans-
action and are like the "bought and sold notes" ^ which
figure in English law books, practically identical in terms
except as to the clause italicized in the first. But as no
objection is offered to this condition by plaintiff, it must
be assumed that since delivery thereof was effected at the
same time as the item now in dispute (Kempner's Ev. pp.
3, 4) such delivery was subject to said clause.

The next transaction appears to be that evidenced by
letters (Exs. A. & B) passing between the parties under date
of June 10. It is referred to as a "loan of beans" (about
100 carloads) from defendant to plaintiff to enable the
latter to fulfill a certain contract in performing which
they had been impeded by floods (Zimmerman's Ev. p. 2).
It appears from said letters that the original intention was
that plaintiff should return this loan in kind, but instead
of so doing, plaintiff (Kempner's Ev. p. 2) seems to have
paid defendant "the full purchase price of one hundred
kopecks for the beans." That transaction was accordingly
completed and the obligation discharged.

So far as the evidence discloses, no further dealings or
negotiations took place between the parties until July 18,
on which date plaintiff wrote defendant as follows:

"Cancelling our yesterday's letter we herewith beg to inform you
that according to information received to-day, 150,000 pood of Beans
are ready for delivery to you on the following pristans, viz.

Pood.

Pristan Solodiankosa 40,000

Pristan Laijn 15,000

Pristan Jaonche 26,000

Pristan Ichantun 29,000

Pristan Sanshan 12,200

Pristan Zalinche 6,500

Pristan Liuschuchedee 7,800

Pristan Sintien 13,500

Altogether 150,000

Owing to the strong rise of waters in the Sungari we request you
to place without delay barges at our disposal in order to ship above-
mentioned quantity of Beans." (Ex. C).

' Wong Tsung Wai v. Endicott, ante, p. 436.

NEWMAN'S COMPANY V. ZIMMERMAN, JUNE 2 5, 1915. 503

This was followed by another letter (Ex. D) two days
later urging, in greater detail, the importance of delivery
and the dangers of delay; whereupon defendant, under the
same date, replied as follows:

"In reply to your today's letter we beg to inform you that after
arrival of our steamer, which is expected within a few days, we shall
dispatch barges to take delivery of 50,000 pood of beans bought from
you. With regard to the remaining 100,000 pood of Beans we believe
that, since we have done you a favor, we ought not to suffer in any
case, besides according to our verbal conversation you have promised
to return the beans on the same place where we delivered same to
you. Only to oblige we agree to take delivery of the beans on other
pristans, which are convenient for loading and only with full barge-
load. It takes too much time to collect the beans from all the pristans
besides it is too expensive. We can only agree to collect the whole
quantity of beans on condition that you refund to us the expenses."
(Ex. E).

This letter is signed by Mr. Topas who, according to
Mr. Zimmerman (p. 10) was defendant's managing partner
in Harbin and who, according to the same witness (p. 3)
conducted the "conversation" referred to in the last letter.

On July 28 plaintiff, thru its manager, Mr. Schiel,
again wrote defendant urging an early acceptance of the
beans but not rejecting, or objecting to, the terms proposed
in defendant's letter of July 20 (Ex. E). As delivery fol-
lowed a few days later, according to the testimony of Mr.
Kempner, the natural inference would be that plaintiff de-
livered, and defendant accepted, according to the latter's
terms of July 20 (Ex. E). However, these terms, insofar
as they required delivery in "full barge loads" were, it will
be seen subsequently, the same as those prescribed in de-
fendant's letter of April 19, and if we were to adopt the
contention of plaintiff's counsel that the conditions upon
which the parties delivered were the same thruout, we
should be obliged to find that the last consignment, as well
as the first, was delivered subject to said condition. Plain-
tiff, however, does not seem to have regarded the terms as
continuous for, as we have seen, in Mr. Schiel's letter of
July 18 (Ex. C), he proposes delivery at different points in
greatly varying quantities (at one place as low as sixty-five
hundred pounds) and, whereas, according to Mr. Zimmer-

504 I EXTRATERRITORIAL CASES.

man's testimony (p. 4) , a full barge load is twenty-five thou-
sand pounds, in five out of the eight places of deliveiy sug-
gested by plaintiff (Ex. E) the amounts are (in most cases
considerably) less. Hence we must regard plaintiff as thus
proposing new and different terms from those of the first
contract and which it was optional with defendant to accept
or reject. But defendant did not accept these terms un-
conditionally. Reminding plaintiff of a verbal promise
(nowhere denied) "to return the beans to the same place
where we delivered same to you," defendant makes a counter
offer to accept delivery at other places and in smaller
amounts only upon condition that plaintiff "refund to us the
expenses," which we understand to mean the additional
cost occasioned by changing the method of delivery.

We have seen that the answer alleges that "plaintiffs
failed forthwith so to deliver," i. e., in accordance with the
terms imposed by defendant's counter-offer of July 20.
But we do not find the evidence sufficient to support that
averment. The said letter was followed, as we have seen,
by plaintiff's communication of July 28 in which the terms
of the former were at least tacitly accepted and delivery
seems to have commenced within about one week and would,
it is claimed, have commenced earlier had the barges been
provided.- Now this counter-offer could be accepted by deed
as well as word, acceptance may even be inferred from
silence - and the presumption would seem to be that delivery
which followed said unrejected counter-offer was in pur-
suance of the latter's terms. The only testimony tending
to overcome said presumption is that of Mr, Zimmerman
which, so far as material to this point, is as follows:

A. Mr. Schiel came to the office and over the telephone he asked
me to take the beans. I did not want — he said take them anyway and
we will come to conclusion afterwards about the terms. He asked
me to take the beans.

Q. Is that all?

A. Yes.

Q. What did you understand would be the final settlement?

A. We would be like agents to sell the beans.

= 9 Cyc, 257, 258.

NEWMAN'S COMPANY V. ZIMMERMAN, JUNE 25, 1915. 505

Q. Was that your understanding?

A. Yes.

Q. Did you expect to suffer a loss on those beans?

A. Yes, our people came and tells us that the beans have been in
the flood and some have been damaged. I told Mr. Schiel to get
ready and take them anyway.

Q. Did you expect to suffer a loss?

A. Yes.

Q. Who was going to bear that loss?

A. He was to bear them.

Q. Did he say so?

A. Yes. (pp. 5, 6).

But Mr. Zimmerman also testifies :

Q. Who was your man in Harbin?

A. Topas.

Q. It is true that he conducted all the business?

A. At that time, yes. (p. 10).

Topas, indeed, was the one who wrote and sent for de-
fendant the letter of July 20 and other letters relative to
these transactions and emanating from defendant. And
altho Topas "conducted all the business * * * at that
time" he was not called upon to participate in this con-
versation with Mr. Schiel. Moreover, the results of that con-
versation were not, so far as appears, evidenced by letters as
all previous transactions had been and we think it would be
very unsafe to accept the mere "understanding" of one
witness (and he an interested one) as to the effect of said
conversation. And it will be seen that Mr. Zimmerman pur-
ports to give nothing more than his understanding in support
of the proposition that "we would be like agents." It is true
that after several leading questions he finally answers affirm-
atively the question whether Schiel said that "he was to bear
them" (i. e., the loss) , but we can hardly accept this as suffi-
cient to bind the partnership in view of the fact that de-
fendant's terms of July 20 had neither been rejected nor
withdrawn. On the whole we must find the evidence insuf-
ficient to overcome the presumption that delivery took place
in accordance with said terms.

As this created a new and independent contract under
which there was part performance, no question of the Stat-
ute of Frauds arises. It would seem, however, that plain-

506 I EXTRATERRITORIAL CASES.

tiff would not be entitled to recover from defendant for
beans which were so damaged as to be unsalable, unless,
of course, such damage were directly due to defendant's
fault. For, as stated in a work of authority:

"Altho in the absence of a definite agreement as to quality no par-
ticular quality will be implied, and the seller is not bound to furnish
goods of the best quality, yet he cannot fulfil his contract by furnish-
ing articles of the poorest quality, but must furnish articles of a
fair average quality and such as are merchantable." *

To sum up our conclusions on this branch of the case
therefore we must find:

1. That for the purposes of this case the "original contract" be-
tween the parties was that evidenced by the letters of April 19, 1914,
and May 18, 1914, respectively, according to which delivery was to
be made in "not less than a full cargo * * * at each port."

2. That said contract was not, so far as appears either modified
or substituted by another and was perfonned on plaintiff's part by
delivery of the fifty thousand poods required by said contract, for
which defendant now admits liability.

3. That plaintiff, by its letter of July 18 (Ex. C), proposed de-
livery as to the remaining one hundred thousand poods upon con-
ditions, as regards place and mode of delivery, differing from those
of the original contract and that defendant in the letter of July 20
(Ex. E) declined to accept said change and proposed counter con-
ditions which required plaintiff to bear the cost of such change.

4. That there is no evidence that such counter offer was rejected
by plaintiff or withdrawn by defendant, that the evidence is insuf-
ficient to establish a new contract involving different terms and that,
therefore, the delivery which followed must be presumed to have been
made upon the terms imposed in the letter of July 20. We further
find, as a matter of law, that defendant is not liable to pay the full
price for beans of unmerchantable quality unless the defects were
directly or indirectly caused by said defendant. As a result of our
findings on the last two points, therefore, it will be necessary, before
judgment can be rendered, for the parties to agree or otherwise as-
certain :

1. The additional cost of collecting the beans by reason of the
failure to deliver in "full barge loads."

2. The deduction, if any, to which the defendant is entitled by
reason of the apparently conceded fact that a portion of the beans
were unmerchantable.

" 35 Cyc, 214.

NEWMAN'S COMPANY V. ZIMMERMAN, JUNE 25, 1915. 507

Paragraph three of the amended answer reads as follows :

"The defendant objects that, as disclosed on the face of the peti-
tion the contracts and agreements alleged to have been made by and
between the plaintiffs and the defendant's firm were made and were
to be performed in the Consular District of Harbin and are not
within the jurisdiction of the Court at Tientsin. '

While this objection has not been pressed thus far it
may still be and, in any event, it raises a question of
such importance that it ought not to be passed over with-
out a ruling. The objection is based upon the provision *
which requires consular courts to

4'* * * entertain jurisdiction in matters of contract, at the
port where, or nearest to which, the contract was made, or at the
port at which, or nearest to which, it was to be executed, and in all
other matters, at the port where, or nearest to which, the cause of
controversy arose, or at the port where, or nearest to which, the
damage complained of was sustained, provided such port be one of
the ports at which the United States are represented by consuls."

This formed part of the act of Congress of June 22,
1860, and continued to govern the consular courts, at
least, until the major portion of their jurisdiction was
withdrawn by the establishment of this Court. Its organic
act of June 30, 1906, providing for such establishment,
however, contains the following:

"* * * The said Court shall hold sessions at Shanghai, China,
and shall also hold sessions at the cities of Canton, Tientsin, and
Hankau at stated periods, the dates of such sessions at each city
to be announced in such manner as the Court shall direct, and a ses-
sion of the Court shall be held in each of these cities at least once
annually. It shall be within the power of the judge, upon due notice
to the parties in litigation, to open and hold Court for the hearing
of a special cause at any place permitted by the treaties, and where
there is a United States consulate, when, in his judgment, it shall
be required by the convenience of witnesses, or by some public in-
terest." ^

A comparison of these two provisions leads irresistibly
to the conclusion that both can hardly be in force as'

* U. S. Rev. Stats., sec. 4085.

"34 U. S. Stats, at Large, Sess. I, Pt. I, Ch. 3934, sec. 1, p. 814.

508 I EXTRATERRITORIAL CASES.

regards this Court. If Congress had intended that the
venue of all actions therein should continue to be the port
"nearest to which the cause of controversy arose" it would
naturally have required sessions at each Consulate, if not at
each leading port, instead of at only four places in all
China. The designation of such places was evidently to
provide for the trials not only of causes arising in the
surrounding consular district but in adjacent districts as
well, with the discretionary power on the part of the
judge to order special sessions as emergencies might re-
quire. So far then as this Court is concerned we are of
the opinion that the section first above quoted is no longer
applicable.

If this were what is known as a "local action," i. e., one
involving title to land, we might be disposed to exercise
the discretionary power thus conferred by requiring trial
at a point nearest the situs of the property; but this
action is a transitory one and under the prevailing Amer-
ican procedure would be tried at the place where service is
made upon the defendant.^

It may be added that no question of jurisdiction arises
here. The territorial jurisdiction of this Court extends
thruout China, jurisdiction of the subject matter is
conferred by law and jurisdiction of the person was
acquired by the service of summons followed by appear-
ance. At most the question is merely one as to the place
of trial, and in the light of the organic act we think it is
entirely discretionary with the Court whether to direct
a trial at Tientsin or Harbin. But, as also suggested,
the evident intention is to provide for trial outside of the
four regular places only in emergencies, and as no show-
ing sufficient to constitute an emergency has yet been made,
we are not disposed to exercise that discretion here. The
objection is, accordingly,

OVERRULED.

* "The trend of modem authority is toward the proposition* that
an action is properly brought wherever the trial court has jurisdic-
tion over the person of the defendant and can award adequate relief
in proceedings against him personally. In America, under the pre-
vailing statutory systems, the general test of venue looks to the res-
idence of one of the parties." 40 Cyc. 24, 25.

CAMERON V. WILLIAMS, JULY 8, 1915. 509

IN THE UNITED STATES COURT FOR CHINA.

Thomas A. S. Cameron, Plaintiff, v. John W. Williams and
John D. Zumbrum, doing business under the name of
Camera Craft Co., Defendants.

[Cause No. 447; filed July 8, 1915.]

SYLLABUS.

(By the Court.)

1. PARTNERSHIP: EMPLOYMENT: TERMINATION. An employee of a

partnership who has tendered his resignation is not entitled to
complain if his employment is terminated while such resigna-
tion is pending.

2. Id. : Id. : Id. A resignation sent to one partner may be accepted by

another, especially if he has been designated as the firm
"manager."

3. Id. : Id. In contracts of employment, a partner may bind the firm

only in the ordinary course of business.

4. Id. : Id. It is not ordinary course for one partner to enter into

a secret agreement with an existing employee materially in-
creasing the latter's advantages at the expense of the firm,
but withholding from the other members all knowledge of such
arrangement.

5. Id. : Firm Contracts. An instrument signed by only one partner

not in the firm name, does not bind the firm unless ratified by
the others.

Messrs. Allen & Lucker, by Mr. Allen, for plaintiff.
Messrs. Kent & Mounsey, by Mr. Kent, for defendant
Zumbi'um.

Defendant Williams, pro se.

LOBINGIER, J.:

This is an action to recover upon a written contract
of employment alleged to have been made between plaintiff
and the defendant Williams in behalf of the partnership
known as the "Camera Craft Company." It appears from
the undisputed testimony of the defendant Zumbrum that
plaintiff was first employed by the partnership at the
suggestion of the defendant Williams, who is plaintiff's
brother-in-law, on March 14, 1912, under a verbal con-
tract and that he so continued for nearly three years^
until January 20, 1915, when the following instrument

510 I EXTRATERRITORIAL CASES.

was entered into between said defendant Williams and
plaintiff (Ex. A) :

"T. A. S. Cameron, Esq.,

Tientsin.
Dear Mr. Cameron:

"I confirm the several conversations we have had on the subject
of your services to the Camera Craft Co., and the final arrangements
arrived at as follows:

"1. That you will continue in the capacity of assistant for a
period of two years from 1st February, 1915, at a salary of $185
including rental allowance,

"2. That you will draw a commission upon the gross sales (credit
and cash after deducting returns) of one per cent, payable half yearly
to you, that is to say, on the 1st August and 1st February of every
year.

"3. That your duties will include sales, the preparation of the
usual monthly returns, and such orders and instructions as you may
receive from time to time from me or such person or persons as I
may hereafter at any time set in authority over you.

"4. This arrangement may be determined at any time by either
party giving six months' notice without necessarily assigning any
reasons. This arrangement will also be subject to determination by
me at any time by giving you three months' notice or pay in lieu
of notice if you do not carry out your duties satisfactorily or in
the event of insobriety, misconduct or absence from your duties
without leave unless on account of illness or other unavoidable cause.
"Yours truly,

(Sgd.) J. W. Williams,

Managing Director.
"Agreed.

(Sgd.) T. A. S. Cameron.

Witness: Charles M. Corren."
30th January, 1915.

On April 2, 1915, plaintiff wrote as follows (Ex. 1) :

"Peking,

April 2nd, 1915.
"Mr. J. W. Williams,

Managing Director,

Camera Craft Co.,
Tientsin.
Dear Mr. Williams:

"I enclose herewith my official resignation from the Camera
Craft Co., but would like to express my deep regret at having to
do so. The reason for this step is simply and solely because of the
extreme unpleasantness which has existed for some time past, and

CAMERON V. WILLIAMS, JULY 8, 1915. 511

still exists, between Mr. J. D. Zumbrum and myself. Apart from
this undesirable feature, there is no other reason why I wish to leave
your service. I am extremely sorry that this circumstance forces
me to sever my connection with you.

"In conclusion I would like to tender you my thanks and ap-
preciation of your kindness during my employment with the Camera
Craft Co. under your Directorship, and express the hope that my
services up to the present have afforded you every satisfaction.
"Again expressing my regret at having to withdraw my services,
"I remain,

"Yours very truly,

(Sgd.) "T. A. S. Cameron."

The partnership's principal place of business was at
Peking where both plaintiff and defendant Zumbrum were
employed and the former, notwithstanding the communica-
tion last quoted, continued to remain at said place of
business until April 13, 1915, when, according to his ver-
sion, defendant Zumbrum asked for the keys to the cash
drawer and desk which plaintiff refused to give him and
Zumbrum then told him to leave and not come back in the
afternoon. Defendant Zumbrum admits having told plain-
tiff not to come back in the afternoon but denies having
dismissed him. Plaintiff, however, did not return to the
firm's place of business at Peking.

As to plaintiff's claim that defendant Zumbrum perma-
nently discharged him, the burden rests upon him. But
aside from the fact that we find no reason for giving
greater credit to the claim than to its denial, it must be
remembered that plaintiff had formally resigned from
the service of the partnership eleven days before. It is
true that this resignation was sent to another partner
and was unknown to Zumbrum, but to be effective it must
have been intended for the whole firm and in fact it ex-
pressly purports to be a "resignation from the Camera
Craft Company." Hence if Zumbrum did really terminate
plaintiff's employment it was only what he had asked the
firm to do and of that he cannot complain.

Moreover, if defendant Zumbrum had authority to dis-
charge plaintiff, as the latter now contends he did, he
would seem equally to have had authority to accept plain-
tiff's pending and unrevoked resignation. We must hold.

512 I EXTRATERRITORIAL CASES.

therefore, that even if the defendant Zumbrum did use all
of the language attributed to him by plaintiff, it amounted
to nothing more than an acceptance of the resignation
voluntarily tendered by the latter. It is true that plain-
tiff's reinstatement was suggested in a subsequent letter
from his attorney to defendant Zumbrum, but if the oc-
currence of April 13 amounted to an acceptance of the
resignation (as we think it did if plaintiff's version is
correct) reinstatement would require a new contract.

On the other hand, if we accept defendant's account of
what took place on April 13, 1915, plaintiff's departure was
largely voluntary and likewise amounted to putting his
resignation into effect without further action on defend-
ants' part. In either case, therefore, we are unable to
uphold the claim of wrongful dismissal.

II.

There remains, nevertheless, the question as to whether
plaintiff is entitled, as against the defendant Zumbrum,
to benefits of the provisions contained in the instrument
of January 20 (Ex. A), and particularly those relating
to six months' notice and a commission on sales. These
were new features in plaintiff's employment. They would
result very much to plaintiff's advantage, for they not
only increased his compensation materially, but so fixed
his relations with defendants that even if he should be
discharged for cause, he would be entitled to "three months'
pay in lieu of notice." That such important changes
in a contract should have been submitted to the other
partners hardly seems to need argument. It is not claimed
that any emergency had arisen which made such changes
imperative, or which required the execution of a contract
before the others could be heard from, especially as one
of them was but a short distance away at Peking. Yet
it is conceded that both of the other partners were kept
in ignorance of this contract, altho defendant Williams
was in frequent correspondence with them. Indeed, on
the very day on which the contract in question was made,
he seems to have written a five page typewritten letter
(Ex. 8) to the non-resident partner in which he had a

CAMERON V. WILLIAMS, JULY 8, 1915. 518

great deal to say about the business but gave no hint of
the contract in question. And the plaintiff himself, tho
in daily association with defendant Zumbrum, admits that
he never mentioned the contract. If, therefore, we were
to give him the benefit of its provisions, we should be
obliged to hold that one partner may secretly increase the
privileges and emoluments of a firm employee who happens
to be his relative by marriage and keep all the other
partners uninformed until some event happens which ren-
ders it advantageous for the employee to disclose them.
To so hold would, in our judgment, be contrary to law.

"When the contract is not made in the ordinary course of the
partnership business * * * the contract does not bind the firm." '

The ordinary course of business here would have been,
as has been suggested, to consult the other partners be-
fore attempting to make changes of such importance. In
one case it appears that the managing partner dismissed
an employee who nevertheless remained at the request of
the dormant partners who alone were held liable for his
employment.- In another case ^ it was held that

"After the service had been rendered it was not competent for one
member of the firm, without the consent of the other, to subject the
firm to a liability for additional compensation. In such case the firm
is not liable."

It is true that the contract in question does not pur-
port to be retroactive, like that in the case last cited, but
it is open to the same objection of secrecy and of attempt-
ing to obtain an advantage for an employee without con-
sulting the other partners and without any emergency
to require it.

Nor can it be claimed that plaintiff was an innocent
beneficiary of this arrangement. He knew, as we have
seen, that the defendant Zumbrum was not informed of
the contract, and it is not suggested that he believed, or
had reason to believe, that such information had been given
to the other partner. Moreover, plaintiff was a witness
to the partnership agreement (Exhibit D) which provided

>30 Cyc, 491.

'Briggs V. Smith, 4 Daly (N. Y.) 110.

*Conn V. Conn, 23 Ore., 452; 30 Pac. 330.

14008 O. W. 33

514 I EXTRATERRITORIAL CASES.

(Par. 5) that defendant Zumbrum "shall act as manager
of the Camera Craft Company," and while the next
paragraph provides that defendant Williams "shall act as
managing director," etc., the duties of neither of these
positions is clearly specified and it would seem quite
as reasonable to suppose that Zumbrum's consent as
**manager" to the employment of one who was to work
directly with him was quite as necessary as the consent
of Williams, who resided in another locality.

Finally, the alleged contract of employment (Ex. A)
does not in terms purport to bind the firm. The Camera
Craft Company is mentioned only once in the instrument
and that, by way of description, in the preamble. The
instrument is not signed in the usual form where the
intention is to bind another, which in this case would be
"Camera Craft Company by J. W. Williams, Managing
Director." As it stated in a work of authority :*

"Where the partners have adopted a firm name they will not be
bound by an obligation executed in any other name by a partner un-
less the use of such name has been assented to or ratified by the other
partners."

So "in general a note which is executed in the name of
an individual partner will not bind the firm." "^

The rule seems to be that the employment of terms like
"managing director" in this case is mere descriptio per-
sonae. To bind the firm there must be actual use of its
name or proof of ratification by its members. In line
with these authorities we are constrained to hold that the
instrument of January 20 bound only defendant Williams
and that its terms cannot be invoked against the remain-
ing defendant. But as plaintiff has not sought nor
indicated a desire to obtain a judgment against the defend-
ant Williams alone under said instrument, no such judg-
inent will be rendered at this time, but plaintiff will be
permitted to amend if he so elect, in order to claim such
relief. Defendant Williams is, however, liable for the
amount hereafter found due since he, as Managing Director,
might have paid plaintiff at any time.

From the evidence it appears that plaintiff was not ac-
tually paid his salary of $185 for the month of March nor

* 30 Cyc, 485. " 7 Id., 548.

UNITED STATES V. ROHRER, DEC. 16, 1915. 515

tor the thirteen days in April during which he worked and
for which he would be entitled, at the rate of six and
one-sixth dollars per day, to $80.17, making a total of
^265.17, for which amount, together with costs, judgment
is accordingly rendered in favor of plaintiff and against
the defendants.

IN THE UNITED STATES COURT FOR CHINA.

United States v. John Rohrer, alias Thomas Riggs alias

John Cook.

[Cause No. 471; filed December 16, 1915.]

SYLLABUS.
(By the Court.)

1. CRIMES: Procedure. Testimony is proper, even after a plea of

guilty, for the purpose of showing aggravating or extenuating
circumstances to be considered in fixing the penalty.

2. Id. : A Plea of Guilty is not technically an extenuating cir-

cumstance.

3. Id. : Self-defense. It is incumbent on the accused to prove self-

defense and to show that he took reasonable precautions, in-
cluding retreat if practicable, to prevent attack.

4. Id. : Id. : Evidence examined and found insufficient to show that

the crime was committed in self defense.

5. Id. : Penalty. Where there are several aggravating, and no ex-

tenuating, circumstances the maximum penalty will be imposed.

Chauncey P. Holcomb, Esq., U. S. Dist. Atty., (with whom
were Messrs. Anderson and Williatn S. Fleming represent-
ing the Chinese government), for the prosecution.

H. D. Rodger, Esq., for the defense.

LiOBINGIER, J.:

The accused under various aliases pleads guilty to an
information charging that he

"purposely and maliciously killed one, Yu Fen Chi, a policeman and
citizen of the Republic of China, by shooting him with a rifle, inflict-
ing a mortal wound; of which said mortal wound the said Yu Fen
Chi immediately died; this on or about the twentieth day of June,
nineteen hundred and fifteen; this at or near the village of Hsing
Lung in the Chien P'ing District of the Province of Chihli in the
Republic of China, and within the jurisdiction of said Court; and
thereby was and is guilty of the crime of murder: against the laws
of the United States".

516 I EXTRATERRITORIAL CASES.

The plea of guilty removes from the case all questions
except those relating to the penalty. It will be seen that
the information charges neither premeditation nor com-
mission in the actual or attempted perpetration of another
crime. The offense charged, therefore, is no more than
"murder in the second degree" '■ the penalty for which is
imprisonment for a period ranging from ten years to life.-
The difference between the maximum and minimum terms
being so great, and the consequent discretion conferred
upon the court being so wide, the details of the affair must
be analyzed in order to ascertain whether aggravating or
extenuating circumstances accompanied the crime.

According to the testimony which the prosecution was
permitted to introduce for this purpose, the accused was a
private soldier in the 15th regiment of infantry stationed
at Tientsin and deserted therefrom in company with one
Williams in June last. Together they took a westerly
course reaching on the second day the Great Wall near
which, according to Williams, the accused with a rifle which
he had brought from the Tientsin barracks knocked a
Chinese in the head and took his shoes. The accused ad-
mits the assault but says that Williams took the shoes tho
the accused wore them. Later according to all the wit-
nesses the accused seized a horse from another Chinese and
also committed the offense charged in the information.
Subsequently the two invented a story, which both now
admit to have been false, that they were British subjects,
and told it under oath before the British Consul at Mukden.

The commission of any other offense in connection with
the one proved is, of course, an aggravating circumstance.
Here there was not only one but a series — including deser-
tion, assault, larceny (two offenses), robbery (apparently)
and perjury.

In addition there is the circumstance that the crime
charged was committed within the territory, and upon a
subject, of a friendly nation which by its treaties with our
own government permits American citizens to reside in
said territory and remain under their own laws and courts,
but upon the express condition that "justice shall be equit-

' Federal Penal Code, sec. 275. =■ Id.

UNITED STATES V. ROHRER, DEC. 16, 1915. 517

ably and impartially administered." ^ This imposes upon
said courts the obligation to see that such laws are enforced
at least as rigorously as they would be in America itself.

On the other hand we are unable to find proof of any
extenuating circumstances. For the plea of guilty, while
it may be taken into account, is technically not such a cir^
cumstance.* It was suggested in argument that the accused
found himself in a strange country, became alarmed
at his surroundings and that this is some way mitigated
the offense. It must be remembered, however, that he had
gone into that region voluntarily and had even deserted
from the military service of his country in order to reach
there. The situation was, consequently, altogether of his
own making and can hardly be considered in his own be-
half.

Nor do we think that the evidence approaches a showing
that the crime of murder, here confessed, was committed in
self-defense. For that fact is one which it is incumbent
on the accused to establish.^ It is true that both he and
Williams claim that the victim was running toward the
accused gun in hand when the latter fired. But not only
does this contradict all the Chinese witnesses, who state
that the deceased carried his gun in a sling across his
shoulder; even if accepted it does not show that retreat
was impracticable or that the accused made any effort to
avoid the alleged attack; and these are essential elements
of self-defense."'

There being several aggravating and no extenuating cir-
cumstances we feel bound, in accordance with the more
advanced authorities on criminal law ^ to impose the maxi-
mum penalty.

The accused is accordingly sentenced to life imprison-

" Treaty of 1844 8 U. S. Stats, at Large, 596, art. XXI, Malloy,
Treaties, 202, ante p. 1.

*U. S. V. Molo, 5 Phil. 414, 4 Off. Gaz. 57; U. S. v. Ablaza, 1
Phil. 740, 1 Off. Gaz. 143. Cf. U. S. v. Talbanos, 6 Phili. 541, 4 Off.
Gaz. 695.

= 21 Cyc. 883, note 84.

' 21 Cyc. 801, 1028, 1029. See U. S. v. Grafton, 6 Phil. 55 where
the rule as to the necessity of caution was not changed on appeal.

' See, e. g., the Spanish Penal Code, art. 79.

518 I EXTRATERRITORIAL CASES.

ment and to pay the costs of this prosecution. Under the
ruling of the Attorney-General he will be transported to
Bilibid Prison at Manila, territory of the Philippines, there
to commence the service of said term of imprisonment
and to continue until provision is made for his transfer
to some suitable place of confinement in the United States.

IN THE UNITED STATES COURT FOR CHINA.
United States v. Hilton A. Williams alias James Carter.

[Cause No. 469; filed December 16, 1915.]

SYLLABUS.
(By the Court.)

1. ROBBERY: ACTUAL VIOLENCE IS NOT NECESSARY to constitute the

crime of Robbery as defined by Sec. 284 of the Federal Penal
Code.

2. Id.: Evidence examined and found sufficient to show felonious

taking "by putting in fear."

3. Id. : Sentence imposed with due consideration for the fact that

the accused had testified for the Government in another cause,
but taking account also of certain aggi*avating circumstances.

Chauncey P. Holcomb, Esq., U. S. Dist. Atty., for the pros-
ecution.

Arthur S. AUa7i, Esq., for the defense.

LOBINGIER, J.:

The information charges that the defendant

"on or about the twentieth day of June, nineteen hundred and fifteen,
on a road or trail near the village of Liu Chai Ts'un, in the Ping
Ch'uan District of the Province of Chihli, in the Republic of China,
and within the jurisdiction of said Court, feloniously took a horse
from one Ma Ch'un Shan, a citizen of China, against his will and
by violence to his person ; and thereby was and is guilty of the crime
of Robbery: against the laws of the United States."

There are only two witnesses, the owner of the horse
and the accused, and it is undisputed that the latter, who
was a private soldier in the Fifteenth Regiment of Infantry
of the United States Army, deserted therefrom in company
with another, both taking rifles from the government bar-
racks and wandering westward towards Mongolia. While
thus en route the accused, mounted on a horse which he
claims to have purchased, met the complaining witness also

UNITED STATES V. WILLIAMS, DEC. 16, 1915. 519

mounted but unarmed and proceeded, as the accused says,
to "trade" horses with the Chinese. The latter, however,
testifies that the accused attacked him and compelled him
to dismount, taking his horse and leaving the other. This
appears to be the more probable story but, in any event,
while the accused denies the use of force to compel the
Chinese to surrender his horse, the fact remains that the
accused was unable to communicate with the Chinese in
the latter's language, and as he was unarmed, and as the
accused had the rifle which he had purloined from the
government and was also accompanied by his armed fellow-
deserter, there would seem to have been little need of the
actual employment of force. The display of it, however,
was apparent and this is all that seems to be required under
the Federal Penal Code, which provides:

"Whoever, by force and violence, or by putting in fear shall
feloniously take from the person or presence of another anything
of value, shall be imprisoned not more than fifteen years.^

It seems clear from the testimony of the owner, and it
is not seriously denied by the accused himself, that the
former was actually "put in fear" and for that reason alone
surrendered his horse.

We must accordingly find the accused guilty of the crime
of Robbery as above defined, and the only remaining ques-
tion is the extent of the penalty.

As we have seen the accused had also committed the
offense of desertion. He was also probably guilty of the
crime of perjury in connection with the accused in Case
No. 471 decided herewith but, on the other hand, he testified
for the government in the said case and the District At-
torney, on that account, recommends leniency, stating that
the testimony of the accused has been of great assistance
to the prosecution. The maximum penalty, as we hav^ seen,
is fifteen years. In a case ^ decided by this Court on
November 2, 1914, the accused was sentenced to three years
imprisonment for armed robbery and the circumstances
were in some respects less aggravating than in the case at
bar. We do not feel that the interests of justice would be

'Federal Penal Code, sec. 284.
'U. S. V. LeClair, ante, p. 414.

520 I EXTRATERRITORIAL CASES.

subserved by the imposition of a lighter sentence than in
the case mentioned.

The accused is therefore sentenced to three years im-
prisonment to be served, under the ruling of the Attorney-
General, in Bilibid Prison at Manila, Territory of the Phil-
ippines, unless and until provision is made for his transfer
to some more suitable prison in the United States, and to
pay the costs of this prosecution.

IN THE UNITED STATES COURT FOR CHINA.
United States v. Harry P. Peeks.

[Cause No. 472; filed December 16, 1915.]

SYLLABUS.
(By the Court.)

1. OPIUM TEAFFIC: STATUTES. Sec. 3, of the Act of February 23,

1887, prohibiting the importation of opium by American citizens
into China examined and found to show an evident clerical
omission.

2. Id.: Penalty: The Maximum Fine provided by said section is, at

best, inadequate in view of the seriousness of the offense and
the fact that the accused was but recently convicted of another.

Chauncey P. Holcomb, Esq., U. S. Dist. Atty., for the pros-
ecution.

James B. Davies, Esq., of Fleming & Davies, for the
defense.

LOBINGIER, J.:

The defendant pleads guilty to an information charging
that he

"on or about the tenth day of December, nineteen hundred and
fifteen, at the port of Shanghai, in the Republic of China, and within
the jurisdiction of said Court, did unlawfully import about sixteen
pounds of opium, and thereby was and is guilty of the crime of
importing opium into China: against the provisions of the Treaty
between the United States of America and China concluded November
17, 1880, article II and against the laws of the United States."

Under the treaties in force between the United States
of America and China the former undertakes that

"citizens of the United States shall not be permitted to import opium
into any of the open ports of China; to transport it from one open

UNITED STATES V. BEEKS, DEC. 16, 1915. 521

port to any other open port; or to buy and sell opium in any of the
open ports of China. This absolute prohibition, which extends to
vessels owned by the citizens or subjects of either power, to foreign
vessels employed by them, or to vessels owned by the citizens or
subjects of either power and employed by other persons for the
transportation of opium, shall be enforced by appropriate legislation
on the part of China and the United States; and the benefits of
the favored nation clause in existing treaties shall not be claimed
by the citizens or subjects of either power as against the provisions
of this article." ^

In pursuance of this treaty Confess, on February 23,
1887, enacted a statute providing

"* * * That the importation of opium into any of the ports
of the United States by any subject of the Emperor of China is
hereby prohibited.

"Every person guilty of a violation of the preceding provision
shall be deemed guilty of a misdemeanor, and, on conviction thereof,
shall be punished by a fine of not more than five hundred dollars
nor less than fifty dollars, or by imprisonment for a period of not
more than six months nor less than thirty days, or by both such
fine and imprisonment, in the discretion of the court." ^

Another section of the statute prohibits the importation
of opium by American citizens into China and then pro-
vides ^

"Citizens of the United States offending against the provisions
of this section shall be deemed guilty of a misdemeanor and, upon
conviction thereof, shall be punished by a fine not exceeding five
hundred dollars nor less than fifty dollars, or by both such pun-
ishments, in the discretion of the court."

A comparison of these two provisions will disclose what
appears to be a clerical error in drafting the statute for
while it expressly provides for both such punishments, in-
dicating an intention to prescribe fine and imprisonment,
only the former is actually mentioned, where the corre-
sponding provision of section one provides, as we have
seen, for a minimum term of imprisonment of thirty days.*

'Treaty of 1880, art. II; Malloy Treaties, Vol. 1, pp. 239, 240.

'24 U. S. Stats, at Large, sess. II, Ch. 210, sec. 1, p. 409; Suppl.
U. S. Rev. Stats. Vol. 1, Ch. 210, sec. 1.

'Id. sec. 3.

* This appears to have been the subject of some official cor-
respondence between former Consul-General Denby and the State
Department under date of October 16, 1907.

522 I EXTRATERRITORIAL CASES.

This is clearly not enforcing the treaty "by appropriate
legislation" and can only be explained on the ground of
mistake already mentioned, for we cannot assume that Con-
gress intended any difference in the penalties to be invoked
for a violation of the treaty in the two countries. Never-
theless we shall, for the present, apply the statute as we find
it ; but, in the face of this palpable error, we are unable to
see much force in counsel's plea for a minimum fine. It
seems to us that the maximum is little enough considering
the seriousness of the offense and the inadequacy of the
penalty as a deterrent.

Moreover the accused is at least a second offender, having
been convicted in this Court no longer ago than July 10, 1915.^
In that cause, on the recommendation of the District Attor-
ney, he was given a very moderate penalty under a promise
of reform, but it appears that he had barely been released
from imprisonment for that offense when he became impli-
cated in the one for which he is now prosecuted.

We feel that the penalty of five hundred dollars fine is
inadequate for the present offense, but in view of the lan-
guage of the statute we feel obliged to impose it.

The accused is accordingly sentenced to pay a fine of
five hundred dollars United States currency, together with
the costs of this prosecution, and he having stated in open
Court that he is unable to pay such fine it is ordered, in
accordance with the rulings of the Attorney General, that
he be transported to Bilibid Prison in Manila, Territory of
the Philippines, there to stand committed until the same
is paid.

In U. S. V. Biddle, Cause No. 480, sentence was announced orally
by the same Judge on February 24, 1916, formal filing being de-
ferred at the request of the District Attorney for time to arrange
such a disposition of the confiscated opium as would most effectively
benefit China:

The defendant pleads guilty to an information charging him with
"the crime of importing opium into China, in that the said Charles
A. Biddle, on or about the 21st day of January, nineteen hundred
and sixteen, at the port of Shanghai, in the Republic of China, and
within the jurisdiction of said Court, did unlawfully import about
seven hundred and ninety-five pounds of Opium."

' U. S. V. Beeks, Cause No. 446, Crim. No. 113.

UNITED STATES V. BIDDLE, FEB. 24, 1916. 523

This prosecution is based upon the Act of Congress of February
23, 1887, - which provides that

"Citizens of the United States offending against the provisions of
this section shall be deemed guilty of a misdemeanor and, upon
conviction thereof, shall be punished by a fine not exceeding five
hundred dollars nor less than fifty dollars, or by both such punish-
ments, in the discretion of the court."

We have elsewhere ^ commented on the inadequacy of this penalty
and the apparent mistake in drafting the statute; in view of which
we consider the maximum penalty little enough notwithstanding the
plea of guilty.

The Act above cited further provides

"Every package of opium or package containing opium, either in
whole or in part, brought, taken, or transported, trafficked, or dealt
in contrary to the provisions of this section, shall be forfeited to
the United States, for the benefit of the Emperor of China." *

The State Department, instructing the American Minister to China
soon after the passage of this Act, gave what seems to us the
natural interpretation thereof, viz., that where one is convicted there-
under

"the confiscation of the opium, if any, found in his possession, and
illegally imported or dealt in, to the use of the Emperor of China,
would be an incident of his sentence; and the confiscated property
would accordingly be delivered to the Chinese authorities." °

For the "Emperor of China" we must now substitute the Republic
of China which, since the passage of the act in question, has suc-
ceeded to the sovereign powers and prerogatives of the former.
The proper "Chinese authorities," to whom delivery should be made,
appear to be the officials of the Chinese Customs service by whom
the opium in question was seized and from whom the Marshal of
this Court received it. The Chinese government, thru its representa-
tive, agrees that the usual reward, which these officials have so fully
earned in this case, shall be paid them.

The defendant is therefore sentenced to pay a fine of five hundred
dollars ($500) United States currency, with subsidiary imprison-
ment according to law in case of non-payment, together with the
costs of this prosecution.

The opium seized and taken from the defendant is hereby declared
to be forfeited to the United States for the benefit of the Republic
of China and is ordered to be delivered to the Customs authorities
thereof thru the local Chinese Commissioner of Foreign Affairs.

In U. S. V. Woodward, Cause No. 631 the following sentence was
imposed by the same Judge on February 1. 1918:

'24 U. S. Stats, at Large, sess. II, Ch. 210, sec. 3, p. 409; Suppl.
to U. S. Rev. Stats. Ch. 210, sec. 3.
' U. S. v. Beeks, ante, p. 520.
* Act cited in note 2, supra, sec. 3.
° Moore, International Law Digest, II, 652.

524 I EXTRATERRITORIAL CASES.

The accused pleads guilty to an information filed January 30,
1918, charging him with

"* * * the crime of importing opium into China, in that the
said Alphonse Maire Tracy Woodward, on or about the nineteenth
day of December, nineteen hundred and seventeen, at the port of
Shanghai, in the Republic of China, and within the jurisdiction of
said Court, did unlawfully import about four thousand four hundred
pounds of opium, and thereby was and is guilty of the crime of im-
porting opium into China: against the provisions of the Treaty
between the United States of America and China concluded November
17, 1880, Article II, and against the laws of the United States of
America, Chapter 210, Volume 24, Statutes at Large."

We have already called attention, in other judgments, to the evident
clerical omission in drafting the statute under which this prosecu-
tion is brought. We again take the oppoi'tunity of pointing out the
inadequacy of the penalty and to urge upon the proper authorities the
importance of an early amendment. Copies of this judgment are now
directed to be forwarded to the Chairmen of the Senate and House
Committees of Congress on Foreign Relations and Affairs, as well
as to the Departments of State and of Justice.

It appears that no opium was found in defendant's possession upon
his delivery to the officers of this Court. A representative of the
Chinese Customs Service appeared in Court at defendant's arraign-
ment and stated that all of said opium was seized by said Customs
officials and is now in their possession. As it has never reached
the American authorities this Court has acquired no jurisdiction
thereover and can make no order concerning the opium.

The accused is accordingly sentenced to pay a fine of five hundred
dollars ($500), United States Currency, with subsidiary imprison-
ment according to law in case of non-payment, together with the
costs of this prosecution.

IN THE UNITED STATES COURT FOR CHINA.
In re Warren J. Thacher's Will.

[Cause No. 421; filed January 10, 1916.]
SYLLABUS.

(By the Court.)

1. INTESTATE SUCCESSION: The law in force in this jurisdiction as

regards the distribution of personalty is that contained in the
act of Congress of March 3, 1901.

2. Id. : Id.: Provisions of the act of June 6, 1900, not inconsistent

with the above, may also be applied where parties entitled
thereto claim benefits under them.

3. Id. : A Forced Heir, having notice of the provisions of a will which

ignores him, but making no claim to share in the estate, will
be deemed to have waived his statutory privilege.

IN RE THACHER'S WILL, JAN. 10, 1916. 525

Dr. F. E. Hinckley appeared for the Executor.
No appearance for the other parties interested.

LOBINGIER, J.:

This cause comes on for hearing upon the executor's
petition for final distribution and his own discharge pur-
suant to the repor-ts herein filed by him under date of
November 4 and December 28, 1915, respectively. Said
petition set forth that the executor has on hand the sum
of Taels 457.37 which, together with any balance of Court
fees, he asks to have distributed. This petition calls for
an interpretation and enforcement of the will's provisions.

That instrument, after providing for the payment of
debts and funeral expenses, bequeaths to the testator's wife
"all household furniture," etc. and "her share by law," and
all remaining property to testator's mother. By the phrase
"her share by law" the testator evidently meant the share
which the wife would have received had he died intestate.

In the early days of the court it was thought that the
law governing intestate succession in this jurisdiction was
"the common law." ^ But the recognition by the Court
of Appeals ^ as effective here, of the special acts of Con-
gress, has rendered available abundant legislation on that
subject and made it unnecessary to invoke the common
law thereon.^

^In re Roberts' Will, Estate No. 10, May 15, 1907; In re Estate of
jeanie W. Woodbridge, deceased, No. 140, June 12, 1913.
' Biddle v. U. S., ante, p. 120.
' In many cases, of course, the statute has made no change. Thus,

"Under the common law it is the right of the husband of the
intestate to enjoy exclusively the effects of his deceased wife. That
is, the personal property of a woman dying in coverture is the
property of her husband. This principle applies whether or not
children survived her. Blackstone, Commentaries, I, 515; Woerner,
American Law of Administration (2nd ed.) I, p. 133." Thayer, J.,
In re Estate of Jeanie W. Woodbridge, deceased. No. 140, June 12,
1913.

The same rule prevails under the statute (31 U. S. Statutes at
Large, sess. II, Ch. 854, sec. 1160; In re Estate of Abagail A. Sut-
terle, deceased. No. 284, Jan. 9, 1920). Under the prior statute the
surviving husband received the whole, only if there were no issue;
otherwise he received one half. (31 U. S. Stats, at Large, sess. I,
Ch. 786, tit. Ill, sec. 169 [4], p. 515.)

526 I EXTRATERRITORIAL CASES.

The latest of these acts, as regards the distribution of
personalty, appears to be the following :

"If there be a widow and a child or children, or a descendant or
descendants from a child, the widow shall have one-third only."*

Since the deceased left surviving children as w^ell as
a widovi^, this provision governs the case.

The survival of children not mentioned suggests the
question whether the Court is required to apply stm sponte
that provision of the act of Congress of June 6, 1900, which
virtually adopts the civil law doctrine of compulsory heirs
by providing that children not named in a will

"shall be entitled to such portion of the estate of the testator, real
and personal, as if he had died intestate, and the same shall be
assigned to them." °

The provision does not appear in the act passed by
Congress nearly one year later but that of itself would
not necessarily prevent its application here so long as the
later act contains no inconsistent provision. But if the
parties "entitled to such portion" fail to invoke the pro-
vision must the Court do so? The Spanish Civil Code,°
indeed, provides expressly that

"All renunciations or compromises with regard to a future legal
portion between the persons owing it and their heirs by force of law
are void."

But we find no similar provision in the legislation of
Congress and in Louisiana, likewise a civil law jurisdiction,
it is expressly held that the forced heir may waive his
rights."

In this case, the children have all attained majority and
have had notice of this proceeding, some of them appearing
in Court during its pendency. None of them asked a
share in the estate or sought in any way to prevent the
execution of the will according to its literal terms. The

'Act of Congress of March 3, 1901, sess. II, 31 U. S. Stats, at
Large, Ch. 854, sec. 375 (at p. 1249).

Under the act of June 6, 1900, she could claim "all articles of her
apparel and ornament." (31 U. S. Stats, at Large, sess. I, Ch. 786,
tit. Ill, sec. 169 [1], p. 514.)

'31 U. S. Stats, at Large, sess. I, Ch. 786, tit. Ill, sec. 143.

•Art. 816.

'Nolan V. New, 31 La. Ann. 552.

TAM WA V. BOULON, JAN. 13, 1916. 527

only inference we can draw from this is that they are
satisfied to have the property disposed of as the will directs.
For, assuming that they are as the statute says, "entitled"
to a share in the estate, we still think it incumbent upon
them to claim their portion if they desire to share in the
distribution, and we must construe their silence as amount-
ing to an acquiescence in the will as drawn.

It is therefore considered and decreed that the household
furniture and one-third of all property (which consists of
money) in the hands of the executor be distributed to the
testator's widow and the balance to his mother, Mrs.
Gorham H. Taylor; and that upon the filing of proper
receipts from the said beneficiaries the executor stand
discharged and the administration closed.

After the payment of all costs, the balance, if any, of
the deposit in the hands of the Clerk, may be distributed to
the executor in compensation for his services, no other
provision being apparently made for that purpose.

IN THE UNITED STATES COURT FOR CHINA.

Tam Wa, Plaintiff and Appellee, v. F. G. Boulon, Defendant
and Appellant.

[Cause No. 474; filed January 13, 1916.]

SYLLABUS.
(By the Court.)

1. AN APPEAL is not a new and independent proceeding but a con-

tinuation of the original suit.

2. Id. : Trial de Novo on appeal does not necessarily include the re-

ception of new evidence; the appellate hearing may be on the
evidence taken below.

3. Id. : Id. : Record. The requirement that "the evidence shall be

taken down in writing" in Consular Courts renders unnecessary
the practice of taking new evidence on appeals which prevails
in reviewing judgments of inferior courts in the United States.

4. Id. : Id. : New Evidence. Under the then "existing procedure pre-

scribed for Consular Courts in China," which is made the basis
for the practice in this Court by Sec. 5 of its organic act, the
appellate tribunal reviews the cause on the evidence taken below,
with discretion to take new evidence in furtherance of justice.

5. Id. : Tho the Judge of this Court is expressly authorized by said

section "to modify and supplement" said rules of procedure, it is
not apparent that any improvement in the due administration

528 I EXTRATERRITORIAL CASES.

of justice would result from changing said rules in the par-
ticular above mentioned.
6. Id. : Stare Decisis. The doctrine of Sexton v. United States, ante,
p. 180, adhered to.

APPEAL from the Consular Court for the District of
Shanghai.

Messrs. Fleming & Davies, by Mr. Fleming, for the
motion.

Messrs. White-Cooper & Masters, by Mr. Masters, contra.

LOBINGIER, J.:

This is a motion for a hearing de novo of a cause orig-
inally tried and adjudicated in the Consular Court for the
District of Shanghai, a transcript of the evidence in which
is included in the record. A similar motion was denied
by a former Judge of this Court in another cause ' and
the decision there announced we are now asked to overrule.
The question is of such importance to the practice in this
jurisdiction that we have deemed it advisable to reexamine
the authorities and reasons upon which the said ruling rests.

The organic act of this Court provides inter alia

"From all final judgments of the consular court either party shall
have the right of appeal to the United States Court for China."*

This is the sole method of review; the statute does not
provide for a writ of error or of certiorari or for any other
proceeding except an appeal. Now the characteristic of
the latter is that it is a continuation of the original suit ; ^
it is not a new and independent proceeding like the other
modes of review. It is true that an appeal often includes
a trial de novo, i. e., in the appellate court.* But this does
not mean a new proceeding; it is merely a rehearing of
the same cause.

The sole question here is whether new evidence must be
taken. For, while on its face appellant's motion is merely

' Sexton V. U. S., ante, p. 180.

'Act of Congress of June 30, 1906; 34 U. S, Stats, at Large, Pt.
I, Ch. 3934, sec. 2.

' Corpus Juris, III, 320.

' See, e. g., Vroman v. Dewey, 22 Wis., 323.

TAM WA V. BOULON, JAN. 13, 1916. 529

for a trial cle novo, it appears from the argument that the
real purpose is to compel the appellee, and enable the
appellant, to call witnesses and present evidence as if the
cause had never been tried. This, however, involves much
more that a new hearing which could be had on the evi-
dence already taken and which, as we have seen, is incident
to all appeals.

Appellant's counsel contends that the organic act fails
to provide a method of procedure on appeal and that we
should, therefore, follow the analogy of appeals to courts
of general jurisdiction in the United States from inferior
courts like Justices of the Peace. But we are not sure that,
even if the analogy were followed, it would aid appellant's
contention. For even in such cases appeals follow the
general rule. They are not new proceedings but rather
continuations of the original ; the identity of the issues must
generally be preserved in the appellate Court ; '' and new
pleadings are not usually filed.''

It is true that new evidence is generally taken upon such
appeals; but this is rendered necessary by the fact that
the evidence is rarely, if ever, preserved in the lower court
which is almost never a court of record nor provided with
an official stenographer, so that the evidence is not taken
down, and the only possible method of providing a new
hearing on appeal is to call the witnesses again. But that
this is rather a result of the necessities of the situation
than an essential incident of the appeals seems clear from
the fact that when the evidence is preserved, as when de-
positions are taken, it is received in the appellate court
without requiring the presence of the witnesses.'^

' See Philippine Practice, pp. 45, 46 where the authorities are col-
lected.

* 24 Cyc, 729.

'24 Cyc, 740;

"There was no error in permitting the deposition taken to be
read in the trial before the justice of the peace, to be read on the
trial in the circuit court. It was taken in the cause pending between
the parties, upon due notice, in strict accordance with the provisions
of the statute and it was competent to read it on the trial of the
cause de novo in the circuit court on defendant's appeal." Jarret v.
Phillips, 90 111., 238.

14008 O. W. 34

530 I EXTRATERRITORIAL CASES.

But the situation which prevents the evidence from being
preserved in the courts of inferior jurisdiction in the
United States is not duplicated in the court from which
the pending appeal is taken. For the statute expressly re-
quires that

"In all cases, criminal and civil, the evidence shall be taken down
in writing in open court, under such regulations as may be made
for that purpose; and all objections to the competency or character
of testimony shall be noted, with the ruling in all such cases, and
the evidence shall be part of the case." '

It is by virtue of this provision that the evidence in this
case was preserved and is now before us, and the effect
of the pending motion is to ask us to disregard all that was
done in pursuance thereof. Yet it is evident, both from
the context and from what will be noted hereafter, that the
main purpose of the rule was to preserve the evidence for
use on appeal. The testimony was taken down in long-hand
and at considerable cost of time and labor, all of which
would be fruitless unless the product of it could be utilized
in the appellate court. For the Consul himself no more
needs to have the evidence preserved in order to enable him
to decide the cause than does a Justice of the Peace. The
laborious transcription is plainly for the benefit of the
appellate court alone. Consequently it seems to us that the
basic reason which requires appellate courts in the United
States to take new evidence is entirely wanting in the prac-
tice here. There the appeal is from inferior courts not of
record; while it has been expressly decided that a court
like that from which this appeal comes is a court of record."

Moreover the requirement that "the evidence shall be
part of the case" appears to be significant. For if, as we
have seen, the appeal is merely a continuation of the case
of which the evidence taken below is a part, how can the
"case" be heard on appeal without considering said evi-
dence ?

• U. S. Rev. Stats., sec. 4097.

"All testimony must be taken in writing in open court, by the
consul or his order, and signed by the witness, after being read
over to him for his approval and correction, and it shall form part
of the papers in the case." Consular Court Regulations (1864),
sec. 87.

* Newman v. Basch, 80 Misc., 622, 152 N. Y. S., 456, ante, p. 469.

TAM WA V. BOULON, JAN. 13, 1916. 531

Nor can we agree with counsel's further contention that
the organic act had failed to provide a procedure on appeal.
For said act contains the following clause :

" * * * the procedure of the said court shall be in accordance,
so far as practicable, with the existing procedure prescribed for
consular courts in China in accordance with the Revised Statutes
of the United States: provided, however, That the judge of the said
United States Court for China shall have authority from time to
time to modify and supplement said rules of procedure.""

It will be noticed that the language used is "procedure
prescribed for consular courts in China;" if it had been
procedure prescribed "in" such courts it might be argued
that this included only the rules governing a cause while
pending in the consular court; but with the language as
it is it seems fair to include the procedure prescribed on
appeal from said courts. It is true, as appellant's counsel
suggests in argument, that such procedure is no longer in
vogue; but nevertheless the organic act makes it a model
for the procedure to be followed by the newly established
court and to that extent at least the old procedure is pre-
served.

Now the methods of appeal for the then "existing pro-
cedure for consular courts in China, in accordance with
the Revised Statutes" were two:

1. To the Minister in civil cases where the amount in controversy
exceeded $500 and was less than $2,500; '^

2. To the Circuit Court for the District of California where said
amount exceeded $2,500."

But in either case the appeal was heard upon the evidence
preserved and transmitted from the consular court, except
that in appeals to the circuit court it was expressly pro-
vided that "no new evidence shall be received on the hear-
ing of the appeal," ^^ while in appeals to the Minister, he
was fully empowered to decide finally any case on the
evidence which came up with it, but might "hear the parties
further" if he thought justice would be promoted thereby.^*

Now we repeat that, while this procedure is no longer

"34 U. S. Stats, at Large, Pt. I, p. 816, sec. 5.
"U. S. Rev. Stats., sec. 4092.
"Id., sec. 4093.
"Id., sec. 4093.
"Id., sec. 4091.

532 I EXTRATERRITORIAL CASES.

actually in vogue, still, it is expressly prescribed as a guide
for this Court to follow and we see nothing in it which
would require us to take over again the testimony of the
witnesses which has been preserved in accordance with the
statute in the lower court. The most that can be said is
that the discretion which the old procedure vests in the
Minister of "hearing the parties further if he thinks justice
will be promoted thereby" is carried forward and con-
ferred upon this Court. Doubtless we have such discretion.
It is sometimes vested in courts of last resort.^^ But it
is exercised only in exceptional cases and it is not con-
tended that this is one.

Finally, if there were any doubt as to what is meant by
the words "existing procedure," it would not follow that
appellant's contention should be adopted. For the same
statute, as we have seen, gives the Judge of this Court
authority "to modify and supplement said rules of pro-
cedure" and if that were necessary we should be disposed
to exercise said authority so as to make the procedure such
as we have construed the old rules to prescribe. For on
grounds of public policy we consider it unwise to require
parties who have once presented their witnesses to go to
the trouble and expense of calling them a second time in
the same cause. To take an extreme case in order to
test the rule, we may suppose an appeal from the Consular
District of Chungking, distant some three weeks of travel
from the place where this Court holds most of its sessions.
If the rule contended for by the appellant were enforced, the
judgment debtor in a small case adjudicated at Chungking
might practically nullify the judgment by taking an appeal
and insisting upon plaintiff incurring the prohibitive ex-
pense of bringing his witnesses all that distance in order
to have the case reheard. It was evidently just that state
of affairs which the old procedure aimed to prevent.

It is true, as appellant's counsel suggests, that this Court
might go to the place of trial and hold the hearing there,
but that would merely be shifting the trouble and expense
from the appellee to the Court and its officials. It is also
true that there are certain advantages in hearing and see-

" For example, the Supreme Court of the Philippines. See Wor-
cester V. Bucknall Steamship Lines, 22 Philippine, 292.

ALLEN V. ALLEN, JAN. 29, 1916. 533

ing the witnesses but all appellate courts of last resort
are deprived of that advantage, which would be more that
off-set by the hardships entailed upon litigants of adopt-
ing the other plan and which would, in this jurisdiction,
practically provide two trial courts where evidently but
one was intended. We think also that there is some merit
in the contention of appellee's counsel that recalling wit-
nesses after they have once testified gives opportunity for
cl\anging testimony, that the witnesses' original statements
are apt to be the more reliable, and that this also tends to
off -set any advantage from observing them while testifying.
Finally, it should not be forgotten that the rule con-
tended for by appellant's counsel is contrary to the practice
prevailing in the British Supreme Court for China which
was to some extent the model upon which this Court was or-
ganized. On the whole, therefore, we are of the opinion
that the conclusions reached in the former decision of this
Court are in accordance with the statute and the author-
ities and announce a rule more likely to promote the ends
of justice than would the contrary one. The doctrine of
said decision is therefore adhered to so far as it holds
that new evidence will not be taken on appeal except in
furtherance of justice. For it is consistent with that de-
cision to recognize that cases might arise where, thru un-
avoidable casualty or misfortune, evidence was omitted
below, which, without prejudice to the adverse party, might
be supplied on appeal. But no such situation is suggested
here and the motion, so far as it seeks the taking of new
evidence, is accordingly

OVERRULED.

IN THE UNITED STATES COURT FOR CHINA.

John Thomas Allen, Petitioner, v. Susan Allen,

Respondent.

[Cause No. 435; filed January 29, 1916.]

ON MOTION TO MODIFY DECREE.

SYLLABUS.
(By the Editor.)

1. ADULTERY: ALIMONY awarded in a decree of divorce a mensa et
thoro will be set aside for the subsequent adultery of the wife

534 I EXTRATERRITORIAL CASES.

but the evidence in support thereof must be clear and convinc-
ing.
2. Id.: Evidence examined and found insufficient to justify such relief
in the case at bar.

Arthur S. Allan, Esq., for the motion.
Joseph W. Rice, Esq., contra.

LOBINGIER, J.:

The petitioner presents a motion to modify the decree
herein rendered on June 10, 1915, awarding alimony to
the respondent who, it is alleged, since the date of said
decree has, on three different occasions, had carnal in-
tercourse with others than the petitioner. As this is the
only ground set forth, the first question to be considered
is whether it is sufficient in Jaw to justify the relief
sought. The respondent's counsel contends that there is
"no adjudication, in America, to the effect that the wife
will be deprived of alimiony for adultery subsequent to
its allowance." But there appear to be several such ad-
judications,^ and a similar doctrine prevails under the civil
law.2 We have no doubt, therefore, of the power of this
Court to modify the decree as prayed by the petitioner,
nor of its duty to do so in a proper case; but it is never-
theless true, as respondent's counsel urges, that the Anglo-

' Bishop, Mar. & Div. (6th ed.), I, sec. 574.

New Jersey. "* * * Under a divorce a mensa et thoro the
marriage relation still exists, and with it the duty of chastity. Such
a divorce is not a license to the wife to indulge in sexual connection
with another man * * *" G— v. G— , 67 N. J. Eq., 30, 56 Atl.
Rep., 736 at p. 740.

New York. Ronan v. Ronan, 32 Misc., 467, 66 N. Y. Sup., 799.

West Virginia. Cariens v. Cariens, 50 W. Va., 113, 40 S. E., 335,
55 L. R. A., 930.

Wisconsin. Weber v. Weber, 153 Wis., 132; 140 N. W., 1052, 45
L. R. A. (N. S.), 875, where an exhaustive note is appended.

Smith v. Smith, 45 Ala., 264, seems to be based mainly on the code
of that state and to deny to its tribunals the general powers of the
ecclesiastical courts which we have found to be vested in this court.
Cavanagh v. Worden, ante, p. 317, citing Wightman v. Wightman,
4 Johns Ch. (N. Y.), 343.

' Manresa, Commentaries on Spanish Civil Code, I, 571; Marcelle
Planiol, Droit Civil, III, sec. 642 et seq.

ALLEN V. ALLEN, JAN. 29, 1916. 535

American courts have shown considerable reluctance in
granting such relief and require strong showing therefor.'
It follows too that the charge of misconduct must be sup-
ported by clear and convincing evidence, for the result
is the wife's loss not only of sustenance but of reputa-
tion as well. We have, accordingly, to determine whether
the showing in this case meets the requirements of the
authorities above cited.

II.

To prove his allegations the petitioner calls a detective
and another who claims to have accompanied him, both
of whom say that on three successive nights in July last
they visited the place where respondent lived (which was
a hat store) and on each occasion found her in a ground
floor room on a couch with a man other than petitioner,
both being sound asleep. The detective states that he was
paid by petitioner to "observe" (i. e., shadow) the re-
spondent and that he paid his companion. The latter states
that he was not paid but was merely returning similar
accommodations which had been extended to him. The
detective states that they were able to enter the room as
the result of a previous arrangement with the "boy" em-
ployed there, who left the front door unlocked but was
not himself present when they entered. The companion,
however, testifies that they were admitted by som.eone
from within responding to a tapping on the door and altho
said door opened directly from the street into the room in
question, neither the noise of opening it nor the flashing
of the light on any of the three occasions appears to have
disturbed the sleepers who, we are told, were unaware of
the presence of outsiders. Finally, altho the man who

'A. & E. Enc. of Law (2nd ed.), H, 137, note 2; Cole v. Cole, 142
111., 19, 19 L. R. A., 811.

In Cariens v. Cariens, 50 W. Va., 113, 40 S. E., 335, 55 L. R. A.,
930, cited for petitioner, altho the wife was guilty of serious mis-
conduct the court denied an application similar to this, stating:
"Under the circumstances we do not find it a sufficient cause to re-
lease him from the payment of this alimony. The bill, decree and
evidence settle it that in the start the husband was in the wrong.
This is res judicata."

536 I EXTRATERRITORIAL CASES.

slept on the couch the second and third nights was recognized
by the detective he was not called as a witness, nor is his
absence accounted for.

Whether the above showing would be sufficient if un-
denied, however, we need not determine, for it is denied
positively and categorically by the respondent who says
that while she occupied the premises in question during
the absence of the proprietress, she slept upstairs at the
time referred to by petitioner's witnesses instead of in
the room mentioned by them. In view of the possibilities
of mistaken identity resulting from the hasty examination
which petitioner's witnesses claim to have made, and the
chances of their having taken someone else for the respond-
ent in the room below, it would seem somewhat hazardous
to base a finding solely upon the testimony of said
witnesses, regardless of the discrepancies above mentioned.
Moreover the proprietress of the premises, in whose
absence the respondent occupied them, corroborates the
latter in testifying that there was no "boy" employed
at the place, and that the door thru which petitioner's
witnesses claim to have entered was fitted with an alarm
bell which would ring loudly upon being opened. Finally,
altho the misconduct charged is claimed to have occurred
in July and would naturally have been reported promptly
to the petitioner who was paying for the procurement of
the evidence, the latter failed to mention it in conversation
with a disinterested witness (Williams) so late as last
month when, according to said witness, the petitioner
stated the grounds of his charges against the respondent.
This testimony is not denied altho the petitioner was in
the court room when it was given and might have been
called in rebuttal.

On the whole, we cannot regard the evidence as dis-
closing that clear and convincing preponderance in favor
of the petitioner's claim which would entitle him to the
relief sought. For, while this is a civil action, the courts,
as we have seen, require unusually strong proof of such
allegations, and the requirements fall little, if any, short
of those applicable to a criminal cause. We feel that the
discrepancies between the testimony of petitioner's two
witnesses and respondent's denial, corroborated as it is,

ALLEN V. ALLEN, JAN. 29, 1916. 537

leave the evidence in such a state that it would be unsafe to
base a finding thereon in favor of the petitioner. His
motion is, accordingly,

OVERRULED.

On March 4, 1916, the following additional order was filed in the
same cause:

A motion is here presented in behalf of the respondent for the
allowance to her counsel of a reasonable fee for services in resisting
the motion to modify the decree which was presented by the peti-
tioner and overruled by the Court.

The power of this Court to grant such relief was determined in
the original decree in this cause, being there based upon specific
acts of Congress, tho such power appears to exist independently
of statute,'' and if the Court were authorized to grant such relief
in order to enable the respondent to obtain a decree in her favor,
it would seem to follow that she is entitled to a similar award for
services in retaining the benefits of such decree and preventing its
modification. We are unable to agree with petitioner's counsel that
such additional services were unnecessary. The relief sought by
petitioner by such motion would not only have deprived respondent of
the benefits of the decree, but would seriously have affected her reputa-
tion, and she was vitally concerned in meeting and resisting it.
Moreover, being an ignorant woman, she could hardly have been
expected, without professional aid, to have met and successfully over-
come the showing made by respondent. The employment of counsel
was therefore rendered necessary by the filing of the motion.

Nor can we agree that the allowance of an attorney's fee on this mo-
tion would encourage misconduct on respondent's part with impunity.
We have specifically held that such misconduct, if proved, would be
sufficient to forfeit her allowance. The attorney's fee is merely for
the purpose of enabling her to protect herself against an unsubstan-
tiated charge of misconduct. Besides, as regards the misconduct it-
self, petitioner is no more concerned than anyone else for since the
decree of divorce a mensa et thoro, he is no longer responsible for her
behavior, and we think it clear from the evidence that his purpose in
filing the motion was not so much to insure the respondent's good
conduct as to relieve himself from the payment of alimony.

We may assume, with his counsel, that petitioner filed the motion
in good faith, but the fact remains that it required action on re-
spondent's part which included the services of an attorney, and we
do not see how he can reasonably expect to escape liability for such
employment. In view, however, of the fact that he has already paid
one attorney's fee, and that his income is not large, we shall allow
only a moderate fee in this instance, and we fix it at Mexican $20,
which amount the petitioner is hereby adjudged to pay respondent's
attorney of record.

* 14 Cyc, 740; Encyclopedia of Pleading and Practice, I, 450.

538 I EXTRATERRITORIAL CASES.

IN THE UNITED STATES COURT FOR CHINA.
In re Henry Varnum Noyes' Estate.

[Special Proceeding No. 160; filed February 21, 1916.]

SYLLABUS.

(By the Court.)

1. INTESTATE SUCCESSION: WIDOW'S SHARE. Under the Federal law

in force in this extraterritorial jurisdiction, the widow of an
intestate who left surviving children is entitled to but one-third
of his personalty.

2. Id. : Realty : Conflict of Laws. The law governing the descent

of real property is the lex loci rei sitae.

3. Id. : Id. : Vesting. By the common law, which is in force in most

American States, an intestate's realty is not a primary asset of
the estate but vests at once in the heir.

4. Id. : Forum : Election. Time allowed the heir for an election to

determine whether to continue the administration here or to
take out ancillary letters at the locus rei sitae.

Lobingier, J.:

This cause comes on for hearing on the petition of the
administrator of the estate of Henry Varnum Noyes who
died at Fati, Canton, January 21, 1914. The petition
prays for an order approving the administrator's final
account, authorizing distribution of the residue of the
estate, his final discharge, and the closing of the adminis-
tration.

It appears from the affidavit in proof of publication
that notice to creditors was duly published and that the
time fixed in said notice for creditors to file claims has
expired; and the said administrator's account recites that
no claims against the said estate were presented and that
there remain in his hands as such administrator money
and personal property of the value of $2,286.46 Mexican
currency.

The petition for letters of administration, presented
by the widow of the deceased, sets forth that he "left no
will or other document relating to the disposition of said
property" and the evidence received at the hearing upon
said petition shows that the said deceased left surviving
him as next of kin his widow, Arabella A. Noyes, one
son, the present petitioner, William Dean Noyes, and

IN RE NOYES' ESTATE, FEB. 21, 1916. 539

several sisters. Under the statute in force here ^ the widow
in such a case takes one-third and the son the remainder.
In the administrator's final account it is further recited
that among the assets of the estate are

"sixteen and two-thirds acres of woodland property near Seville,
Ohio, valued at approximately eight hundred dollars, gold,"

and we are asked to make som.e order relative thereto.
But the law governing the descent of real property is the
lex loci rei sitae - which in this instance is the law of Ohio.
Now, that state, along with most American jurisdictions,
retains for the most part the common law doctrine ^ that
the real property of an intestate vests on the owner's death
immediately in his heir, forms no primary part of the
estate's assets and is not subject to the administrator's
control. In Ohio this doctrine has been modified to the
extent of subjecting the lands, in case only the personalty
is insufficient, to the payment of the decedent's debts and
a year's allowance to the widow and minor children.* In
this case it appears that there are no debts at least in
China, and there is nothing yet before us which would
justify an exercise of jurisdiction over the realty. We
shall, however, leave the administration open for a reason-
able time to enable the administrator and heir to determine
whether to continue it here or to take out ancillary letters
in Ohio. The prayer for closing and discharge cannot,
therefore, be granted at this time but it is now considered
and decreed:

1. That all claims against the said estate be and the same are here-
by barred.

2. That the final account of the administrator be approved.

3. That the said administrator distribute the money and personal
property belonging to said estate — >

(a) By delivering one- third thereof (equivalent in value to Mex-
ican $762.15) to the said widow, Mrs. Arabella A. Noyes.

(6) By delivering the residue (being equivalent in value to Mex-
ican $1,524.31) to William Dean Noyes, heir at law.'

* In re Thacher's Will, ante, p. 524.
'14 Cyc. 21.
' 18 Cyc. 180, 181.

*Carr. v. Hull, 65 O. St., 394, 58 L. R. A. 641.
^ In re Kate Landers' Estate, Cause No. 844, the following order
was entered on February 14, 1919:

540 I EXTRATERRITORIAL CASES.

This cause comes on for hearing upon the Administrator's petition
for leave to make distribution and for final discharge, and it appear-
ing from the Administrator's final report that Notice to Creditors
has been duly published, and that all proper claims against the
estate have been paid, no reason appears why the prayer of said
petition should not be granted.

From the depositions just received it appears that the deceased
left surviving her two sisters and her father, a situation which
appears to be governed by the following provision of the Act of Con-
gress of March 3, 1901 (31 U. S. Stats, at Large, sess. II, Ch. 854,
p. 1250, sec. 380) :

"If there be a father and no child or descendant, the father shall
have the whole; and if there be a mother and no father, child, or
descendant, the mother shall have the whole."

It is accordingly considered and decreed that the Administrator
proceed to distribute the assets of the said estate now in his hands,
less the amount allowed by law for his own fees and the fees of this
Court, to the father of the said deceased, Patrick Landers, and that
upon the Administrator's filing with the Clerk of this Court a proper
receipt from the said Patrick Landers the said Administrator shall
stand discharged and the administration closed.

IN THE UNITED STATES COURT FOR CHINA.
United States v. Simon Osman.

[Cause No. 483; filed March 17, 1916.]

SYLLABUS.

(By the Court.)

1, STATUTES: SUITABILITY. An Act of Congress is not rendered un-

suitable in this jurisdiction merely for the want of an institu-
tion wherein the penalty for its violation is to be served; since
Congress has expressly provided for the service of such penal-
ties elsewhere.

2. VAGRANCY: BiLiBiD PRISON appears to meet the requirements of

a place of confinement for violating the Congressional vagrancy
act of 1909.

Chauncey P. Holcomb, Esq., U. S. Dist. Atty., for the
prosecution.

Joseph W. Rice, Esq., for the defense.

LOBINGIER, J.:

The accused pleads guilty to an information charging
that he is

UNITED STATES V. OSMAN, MAR. 17, 1916. 541

"a native of the Island of Guam, and a subject of the United States
of America" and that he is guilty "of the crime of vagrancy, — in
that the said Simon Osman, on several different days during the
months of January and February, nineteen hundred and sixteen, at
Shanghai, in the Republic of China, and within the jurisdiction of
said Court, did lead an idle life, did have no visible means of support,
did go from door to door and in the street did beg and receive alms."

The sole question relates to the penalty. The District
Attorney asks that we apply the following provision which
was enacted by Congress in 1909 and appears to be its
latest expression of intent on this subject:

"Every person in the District of Columbia who shall be convicted
of vagrancy under the provisions of this Act shall be required to
enter into security in a sum not exceeding five hundred dollars, con-
ditioned upon his good behavior and industry for the period of one
year, and if he shall fail to give such security he shall be committed
to the workhouse in the said District for a term not to exceed one
year. The security herein mentioned shall be in the nature of a
recognizance to the District of Columbia with a surety or sureties to
be approved by the police court of the said District, in which court
all prosecutions under this Act shall be conducted in the manner
now provided by law for the prosecution of offenses against the
laws and ordinances of the said District, but nothing contained in
section -forty-four of the Code of Law for the District of Columbia
shall be so construed as to create or give to the accused, in prose-
cutions under this Act, any right to trial by jury not existing by
force of the Constitution of the United States." ^

Counsel for the accused contends that said statute is not
"suitable" to this jurisdiction because we have no "work-
house." The same logic would preclude us from applying
any statute prescribing incarceration in a penitentiary be-
cause no such institution exists within our territorial juris-
diction. But Congress has provided for such cases by the
following enactiient:

"AH persons who have been, or who may hereafter be, convicted of
crime by any court of the United States, including consular courts,
whose jyunishment is i'mp7nsoninent in a District or Territory or
country where, at the time of conviction or at any time during
the term of imprisonment, there may be no penitentiary or jail
suitable for the confinement of convicts, or available therefor, shall
be confined during the term for which they have been or may be
sentenced, or during the residue of said term, in some suitable jail

' 35 U. S. Stats, at Large, sess. II, Pt. I, Ch. 250, p. 711.

542 I EXTRATERRITORIAL CASES.

or penitentiary in a convenient State or Territory, to be designated
by the Attorney-General." ^

It will be seen that this authorizes the transfer to some
institution outside this jurisdiction of those convicts "whose
punishment is imprisonment." If, therefore, commitment
to a workhouse constitutes imprisonment the person so
committed may be transferred and the absence of a work-
house within the jurisdiction offers no obstacle to the ap-
plication of the statute herein invoked.

A workhouse has been defined as "an industrial prison
for vagrants and petty offenders." ^

"It is made a place of confinement for persons sentenced to im-
prisonment at hard labor, for disorderly persons, and for disobedient
or intemperate slaves or servants." ■"

"The word, in this state has a well-defined, popular, and legal
signification. It is a place or -prison where persons convicted of
minor offenses and misdemeanors may be confined and kept at
labor." '

It is true that in early English legislation, the term
seems to have been applied to a place for the housing of
paupers but that use appears never to have been made of
it in America. There a workhouse has always meant a
place of confinement and is quite as much a prison as is
a jail or penitentiary. A workhouse differs from a jail
in that its inmates are required to labor; it differs from
a penitentiary in housing petty offenders; but all three
are prisons.

Counsel for the accused calls our attention to the fact
that the Congress next following that which enacted the
statute invoked by the District Attorney designated the
District of Columbia Institution as a "Reformatory and
Workhouse." *' That phrase not inaptly describes the In-
stitution designated by the Attorney-General ^ as a place

^ U. S. Rev. Stats., sec. 5546, as amended by the Act of March 3,
1901, 31 U. S. Stats, at Large, sess. II, Ch. 873, p. 1450.

' Staindard Dictionary ad verbuTn.

' State V. Ellis, 26 N. J. L., 221.

' Farmer v. City of St. Paul, 65 Minn., 176, 33 L. R. A., 199, 67
N. W., 990, 992.

" 36 U. S. Stats, at Large, sess. II, Pt. I, Ch. 385, p. 785.

' Opinion of October 28, 1915, 30 Ops. Atty. Gen. 462.

UNITED STATES V. OSMAN, MAR. 17, 1916. 543

of confinement for long term prisoners under sentence of
this court, viz., Bilibid Prison at Manila. It is a reform-
atory because the methods of modern penology are applied
there, the aim being to reclaim and improve the inmates
by practical teaching and mild tho exacting, discipline.
It is also "an industrial prison" which, as we have seen,
is one of the definitions of a workhouse. The inmates
are taught useful trades and encouraged to form habits
of industry while idleness is forbidden. These would seem
to be the characteristics of a "Reformatory and Workhouse"
combined.

We do not find that a workhouse loses its character as
such by being operated in conjunction with another penal
institution. In one of the authorities ^ cited by defendant's
counsel, while the distinction is drawn between jail and
workhouse, it appears that the act under construction ex-
pressly authorized free holders

"to convert such parts of the jails of their respective counties as
to them might seem proper, into work-houses, taking care to reserve
space and room enough in said buildings for the uses and purposes
of the public jails, in order that the act for the establishing of
work-houses might be carried into as full effect as though the said
work-houses had been built or purchased."

It seems clear from this that a workhouse and jail, or
for that matter, a workhouse and penitentiary, may be
maintained in the same building and under the same man-
agement so long as the two classes of prisoners are kept
separate. Such is the situation in Bilibid Prison. It is
used not only for the confinement of long term convicts
but also for housing petty offenders from the City of Ma-
nila and the latter are kept distinct from the former and
set to useful labor as in a workhouse.

It is objected that the maximum term of one year's
commitment renders unsuitable the statute invoked by the
District Attorney; but it was held by a former judge of
this Court that the limits of penalties are not binding
upon it since Congress by one of its provisions ^ "leaves
the fixing of penalties for criminal offenses committed
within this extraterritorial jurisdiction to the discretion

' State V. Ellis, 26 N. J. L., 219. " U. S. Rev. Stats., sec. 4101.

544 I EXTRATERRITORIAL CASES.

of trial officers." " Moreover the Court has always dis-
cretion to apply the minimum penalty which in this in-
stance might be any period, however short, less than one
year. In any event we could not agree that a year's com-
mitment to a workhouse would constitute "a cruel and
unusual punishm.ent" even if the constitutional inhibition
thereof had any extraterritorial force ".

Neither the validity nor the applicability of the statute
in question is affected by its omission (which appears to
have been an oversight) from the District of Columbia
Code. So long as it appears in the officially authenticated
edition of the Acts of Congress, published under the direc-
tion of the Secretary of State, we must presume it to be in
force until its repeal is shown.

We were at first in doubt as to whether the initial words
of the statute first above quoted did not localize the offense
and Ti ake the act inapplicable elsewhere than in the Dis-
trict of Columbia. But a re-examination of the statutes
treated as applicable by the Court of Appeals '- in an-
nouncing its doctrine that any pertinent act of Congress
is in force here regardless of the limits within which it
was originally intended to apply, convinces us that they
are in principle no different from the statute here invoked.
Moreover the Court of Appeals there applied acts which
had been passed long subsequent to the Congressional
extension " of the "laws of the United States * * ♦
over all citizens" in China.

Finding no sufficient reason for not applying the statute
in question the accused is hereby required within three
days to enter into security in the sum of $100.00 United
States currency, conditional upon his good behavior and
industry for the period of one year. In case he fails to
furnish that security within the time fixed it is ordered
that he be committed to that department of Bilibid Pris-
on, territory of the Philippines, set apart for vagrants

'" U. S. V. Grimsinger, ante, p. 282, per Thayer, J.
" "The Constitution can have no operation in another country".
Field, J., In re Ross, ante, p. 40.
" Biddle v. U. S., ante, p. 120.
" U. S. Rev. Stats., sec. 4086.

RATH V. RATH, MAR. 21, 1916. 545

and other petty offenders and that he stand so committed
for a term of four months. Pending transportation thereto
he is remanded for detention to the Prison for American
convicts at Shanghai and he is further adjudged to pay
the costs of this prosecution.

IN THE UNITED STATES COURT FOR CHINA.
Rath, Petitioner, v. Rath, Respondent.

[Cause No. 465; filed March 21, 1916.]

SYLLABUS.
(By the Court.)

1. DIVORCE : Adultery. A married man's occupancy of a bedroom

at night in company with a woman not his wife, affords suffi-
cient proof of adultery.

2. Id. : Residence. Evidence examined and found sufficient to show

petitioner's residence in China for the period of time required
to give the Court jurisdiction.

3. Id. : Return of Money in possession of respondent but belonging

to petitioner decreed as authorized by statute.

H. D. Rodger, Esq., for petitioner.

No appearance for respondent.

Chauncey P. Holcomb, Esq., U. S. Dist. Atty., appeared
as amicus curiae but did not oppose the granting of the
relief sought.

LOBINGIER, J.:

The petition in this cause alleges:

"That the plaintiff herein was lawfully married to the said

Rath at the Navy Y. M. C. A., 6 Seward Road, Shanghai, China,
on the loth day of April, 1915, and has always behaved toward
him, the said Defendant, as a chaste and faithful wife, yet the said
John Joseph Rath neglected his marriage vows and duty, since the
said marriage, to wit: on November eighth, 1915, at a Japanese
Hotel known as 'Banzai Kwan' at and being No. 7, Seward Road,
Shanghai, committed the crime of adultery with a certain lewd Chi-
nese woman, to your Petitioner unknown."

In support of her averment of legal marriage, petitioner
offers in evidence an original certificate (Ex. C) issued
by G. J. Barrett, Vice Consul of the United States, re-

14008 O. W. 35

546 I EXTRATERRITORIAL CASES.

citing that a party of the same name as the respondent
was married to "Sophia Schultz" which the petitioner tes-
tifies is her name, on April 15, 1915, by the Reverend
Benton Swartz. To prove her averment as to the ground
of divorce petitioner calls one Joseph Rothman who tes-
tifies to having followed the respondent to the hotel named
in the petition where he saw respondent obtain a room
for himself and a Chinese woman who accompanied him
and who, respondent said, was his wife. Later the witness,
having in the meantime notified petitioner and a detec-
tive, returned with them to the hotel where they went
to the room assigned to respondent who, after an alarm
was given, appeared at the door undressed, while the
Chinese woman in question was seen in bed in the same
room.

Such, in brief, is the substance of the testimony of
the petitioner and of the witness called by her, and as
there has been no appearance by the respondent, tho per-
sonally served with summons and notified in addition of
the time and place of hearing, the said testimony stands
undisputed, and we find no reason to reject it, nor can
there be any doubt that it affords a sufficient ground for
divorce.

"Adultery may be established by the fact the parties occupied the
same room at night or the same bed, in the absence of an explana-
tion of the incriminating circumstance." ^

The petitioner testifies that she has resided about two
years in Shanghai and that she had previously lived in
Tientsin where she was employed as a bar maid, being
then a Russian subject. This appears to be sufficient
to tr.eet the residential requirements of the statute.^

The petition contains no specific prayer for alimony,
but it does pray for the return of one hundred and twenty-
five dollars Mexican currency which, the petition alleges
and the petitioner testifies, was received from her by
the respondent and has not been returned. There is also
a prayer for attorney's fees. In a somewhat similar case •

' 14 Cyc, 696, and cases there cited.

'Act of Congress of March 2, 1903, sess. II, 32 U. S. Stats, at
Large, Ch. 978, sec. 2, p. 944.
5 Allen V. Allen, ante, p. 495.

UNITED STATES V. LEDDY, MAR. 2 5, 1916. 547

we allowed an attorney's fee of fifty dollars Mexican
currency, and as the petitioner testifies that she is re-
ceiving only forty dollars Mexican currency per month,
and as the return of personal property is expressly provided
for by statute,* the allowance of both items appears to be
fully justified.

It is accordingly considered and decreed:

1. That the bonds of matrimony heretofore existing between peti-
tioner and respondent be dissolved absolutely, that a decree of di-
vorce a vinculo matrimonii be and hereby is granted and that her
maiden name of Sophia Schultz be restored to her.

2. That the respondent pay to the petitioner the sum of one
hundred and twenty-five dollars, and an attorney's fee of fifty dollars
Mexican currency.

3. That the respondent pay the costs of this proceeding.

4. That the respondent shall not be permitted to remarry.'

IN THE UNITED STATES COURT FOR CHINA.
United States v. James F. Leddy.

[Cause No. 485; filed March 25, 1916.]

SYI/LABUS.
(By the Court.)

CRIMES: Drunkenness constitutes no legal excuse for crime tho it
may be considered in fixing the penalty.

LOBINGIER, J.:

On March 17, 1916, the accused pleaded guilty to an in-
formation charging him with

"the crime of grand larceny — in that the said James Francis Leddy,
on a day or days, between February 25, 1916, and March 1, 1916,
at Shanghai, in the Republic of China, and within the jurisdiction
of said Court, did feloniously take and carry away from on board
the steamship Seward" certain personal property of the value of more
than thirty-five dollars.

* Act of Congress of June 6, 1900, Sess. I, 31 U. S. Stats, at Large,
Ch. 786, Tit. II, sec. 472.

"Act of Congress of March 3, 1901, Sess. II, 31 U. S. Stats, at
Large, Ch. 854, sec. 966.

548 I EXTRATERRITORIAL CASES.

By two acts of Congress ^ the penalty for this offense
is fixed at not less than one and not more than ten years.

The accused offers evidence that he had previously led
a respectable life and it is urged in his behalf that the
offense was committed while under the influence of liquor.
In the Anglo-American law, however, this constitutes no
excuse for crime. As stated by a writer ^ of authority,

"It is true that the sanctions of the law cannot be supposed to
exert an equal influence on the mind and conduct of a person in
this state; but the initiation of the crime may be said to date back
to the time when the offender took steps to deprive himself of his
reason. It is evident that if drunkenness were allowed to excuse,
the gravest crimes might be committed with impunity by those who
either counterfeited the state or actually assumed it."

In fixing the penalty, however, we are disposed to apply
in the case at bar the minimum of the term of imprisonment
prescribed by the statute. His counsel has further asked
that sentence be suspended for the present in order to allow
the accused to find employment within the jurisdiction of
the court. On March 21 opportunity was given for the ac-
cused to seek such employment and a reasonable time al-
lowed for obtaining it, but it appears that none has been
obtained and that there is no likelihood that any will be.
Whether in case such an arrangement could have been made
it should have operated so as to relieve defendant of punish-
ment we need not now determine ; but we are of the opinion
that it will be better for the accused to serve his sentence
as soon as possible and reap the benefit of whatever de-
terrent effects it may have. We shall allow him credit for
the time actually served in confinement since his arrest
but that is as much as we feel justified in doing.

It is accordingly considered and adjudged that the ac-
cused be, and he hereby is, sentenced to one year of im-
prisonment, dating from the day of his incarceration, March
7, 1916; that said sentence be served in the Prison for
American convicts at Shanghai, China, until the accused
can be transferred to Bilibid Prison, at Manila, territory

*Act of March 3, 1901, sess. II, 31 U. S. Stats, at Large, Pt. I,
Ch. 854 (District of Columbia Code), sec. 826; Act of March 3,
1899, Sess. Ill, 30 U. S. Stats, at Large, Ch. 429, Tit. I, sec. 41.

■Harris, Criminal Law (3rd ed.), 28.

UNITED STATES V. MARTIN, APR. 6, 1916. 549

of the Philippines, where the balance thereof shall be
served and that he pay the costs of this prosecution.^

IN THE UNITED STATES COURT FOR CHINA.
United States v. Thomas Martin.

[Cause No. 487; filed April 6, 1916.]

SYLLABUS.
(By the Court.)

1. CRIMES. The rule of reasonable doubt applied.

2. Id. : Counterfeiting. In a prosecution for uttering forged or

counterfeit currency, knowledge of its character and criminal
intent must be proved independently of the act of uttering.

Chauncey P. Holcomb, Esq., U. S. Dist. Atty., for the
prosecution.

James B. Davies, Esq., for the defendant.

* In U. S. V. Hedges, Cause No. 793, the same Judge in imposing
sentence on June 26, 1919, said:

The accused pleads guilty to an information charging that he, as
"a Bill Collector for the Shanghai Water Works Company, on
several days between the thirteenth and twenty-third days of June,
A. D. 1919, did then and there willfully, unlawfully, knowingly, in-
tentionally, fraudulently and feloniously embezzle and convert to his
own use monies of about the value of Three Hundred and Ninety-
two Dollars, U. S. Currency."

The statute provides that one guilty of embezzlement "shall be
punished by a fine not exceeding one thousand dollars, or by im-
prisonment for not more than ten years, or both." * Counsel for
the accused claims that he later was intoxicated (tho not to the
extent of failing to realize what he was doing) during the period
specified in the information, and therefore asks that no imprisonment
be imposed. But drunkenness is not, under our law, an excuse for
crime ; ^ it is not even a mitigating circumstance ° and the term ol
thirty days recommended by the District Attorney seems Inadequate
upon the record before us.

The accused is accordingly sentenced to sixty days of imprison-
ment and to pay a fine of three hundred and ninety-two dollars, U. S.
currency, being the amount taken, with subsidiary imprisonment
according to law in case of insolvency, all imprisonment to be served
in Bilibid Prison, territory of the Philippines, and to pay the costs
of this prosecution.

'Act of Congress of March 3, 1901, Sess. II, 31 U. S. Stats, at
Large, Ch. 854, Tit. I, sec. 834.

* U. S. V. Leddy, ante, p. 547.
■Corpus Juris, XVI, 106, 107.

550 I EXTRATERRITORIAL CASES.

LOBINGIER, J.:

The defendant, an enlisted man in the United States
Navy, is charged with

"the crime of counterfeiting National Bank notes, in that the said
Thomas Martin, on or about the fourth day of March, nineteen
hundred and sixteen, at Shanghai, in the Republic of China, and
within the jurisdiction of said Court, did unlawfully, knowingly,
fraudulently and feloniously pass, utter, and publish as true and
genuine, a certain falsely altered circulating note issued by the
National Shawmut Bank of Boston, a banking association which
had theretofore been authorized, and was acting under the laws
of the United States of America, upon and to Zee Tzu Ying, a
citizen of the Republic of China, with the intent and purpose of
him, the said Thomas Martin of defrauding the said Zee Tzu
Ying, * * * ^„^ Yie, the said Thomas Martin at the time of so
passing, uttering and publishing the aforementioned falsely altered
circulating note, upon and to the said Zee Tzu Ying, then and there
well knew that the same falsely altered circulating note was falsely
altered."

The only direct evidence to implicate the accused in the
offense thus charged is that of a money changer's clerk
who testifies that on March 4, at about 6 p. m., the accused
came on foot to his place of business on Ningpo Road,
Shanghai, exchanged the note in question for $107, Mexican
currency, and then left in a ricsha. The witness further
says that shortly after defendant's departure he observed
an irregularity in the cipher appearing after the five in
the note, which purported to be an American fifty dollar
bill, and that he thereupon started in pursuit of the de-
fendant, followed him to the jetty, along Peking and
Shantung Roads, and procured his arrest by a Chinese
constable.

The accused denies that he ever saw his accuser until
the latter overtook him at or near the jetty, and further
states that he never had the altered bill and in fact had
no American money in his possession on that day. The
corroborating circumstances upon which the government
relies for conviction may be summarized as follows :

1. Improbability of the complaining witness having fab-
ricated his account.

2. The fact that money of the same denomination as

UNITED STATES V. MARTIN, APR. 6, 1916 551

that claimed to have been exchanged by the complaining
witness was found on the defendant's person when arrested.

3. Certain statements by the accused at the police station.

As to the first of these we are disposed to agree with
the District Attorney that it seems antecedently improbable
that any one would invent such a story and pursue the
accused, knowing that he was not the one who passed the
altered bill. But on the other hand one would naturally
expect the accuser first of all to confront the accused with
the bill and demand reparation. Instead of doing so, how-
ever, the former left the bill behind and did not procure
it until told to do so by Sgt. Macintosh at the station.
Moreover, according to the constable who made the arrest,
the accuser's charge was that the accused had "snatched
away" or "picked up" money — not that he had passed a
bad bill.

Again the opportunity for mistaken identification seems
to have been fairly good. The witness states that it was
dark when the accused came to his shop and that he wore a
sailor's uniform. Many such are worn in Shanghai and
there would seem to be danger that a Chinese might mistake
one foreigner so attired for another.
"The witiiess is evidently not a careful observer or he
would have noticed the alteration of the bill before ac-
cepting it, especially as it purported to be for an unusually
large amount and was of a denomination rarely seen in
Shanghai, the government's one witness on the point (Mr.
Stetson of the International Bank) testifying that he had
never seen an American fifty dollar bank note in China.
Notwithstanding these unusual circumstances the witness
accepted the bill and parted with his employer's money
before noticing it. Evidently his observation of the party
who brought the bill was no closer for, tho complainant
remembered the uniform, he could not be sure of the color
of the cap.

The witness further testified as follows:

Q. Who else was in the shop on that afternoon?
A. The mistress of the shop was there.
Q. Was she present when this transaction took place?
A. Yes.

552 I EXTRATERRITORIAL CASES.

Q. Where is she?

A. She is in the other room outside.

Q. Was there nobody else present in the shop besides the mistress
as you call her?

A. There were carpenters in the shop, but they had nothing to do
with it.

The proprietress, tho present, was not called, and the
failure to call her must be taken as an admission that she
would be unable to identify the defendant.^ Indeed the
rule in some jurisdictions is that such failure raises the
presumption that the witness, if called, would testify
adversely.^

It thus results that tho others were present in the shop
at the time of defendant's alleged visit, only this one wit-
ness was able to identify him, and it must not be forgotten
that the interest of this witness in shifting responsibility
for the loss which resulted from his acceptance of the
altered note is very strong. For he was only an employee in
a shop where such a transaction must have been regarded as
one of considerable magnitude and the retention of his
position might well depend upon the excuse or explanation
that he might offer.

(2) When the accused was taken to the police station
he was found to have in his pocket ten notes' issued by
the Bank of Communications, each of the denomination
of $10, and $2.10 in silver. In his right sock there was
also found a ten dollar bill issued by the Russo-Asiatic
Bank, seven dollars in silver and a twenty cent piece. None
of this money was "chopped," i. e., marked as having been
passed out by an exchange broker. The complaining wit-
ness explains that the party who left the note was in a
hurry, and therefore unwilling to wait until the "chop"
could be placed thereon, but in reply to the question

Are you practically compelled to put your chop on every silver
dollar?

he answers

Yes, it was the custom.

'Kirby v. Tallmadge, 160 U. S. 379, 40 L. ed. 463. Cf. Armory
V. Delamirie, 1 Strange 505.

^ This rule has been codified in many jurisdictions. See e. g. Cal.
Code C. P. sec. 1963 (5, 6).

UNITED STATES V. MARTIN, APR. 6, 1916. 553

The failure to observe this custom has deprived us of the
one conclusive means of identification w^hich the case would
afford.

It is true that money aggregating the amount which the
witness claims to have given the accused was found on the
latter's person. But the probative value of this circum-
stance depends largely upon whether or not the witness
was present when it was found and saw it before he told
his story to the sergeant and on this point the record is
silent. As we have seen, however, the statement which
he had made to the Chinese constable who made the arrest
was considerably different, viz., that the accused had
"snatched away" or "picked up" money of the witness.

The amount of $107 which the witness claims to have
given the accused was not found on his person alone or
even together. For the accused had considerably more — in
all $119.30, of which, as we have seen, $102.10 were in his
pocket and the balance in his right sock. If he received the
seven silver dollars from the witness, as the latter says, he
must have placed them in his sock between the time of
such reception and his arrival at the jetty; yet, altho the
witness claims to have seen him depart and to have pur-
sued him, watching him closely most of the time, he does
not say that he saw him at any time putting any part of
the money in his sock.

Moreover a ship-mate of the accused (Knight) testifies
that on the day in question just before the accused left the
ship he took a bath and upon doing so gave the contents
of his pockets to said witness for safe keeping, and that
upon counting them the ship-mate found $150, including a
hundred dollar bill, which the accused states he afterward
had changed into the ten notes later found on his person.
We do not see that this testimony is in any way impugned
by the fact that the accused wrote to this ship-mate,
stating, according to the government's witness, that

"he would like Mr. Knight to come over and see him as he wanted
to talk about the hundred dollar bill which he held while he was
taking a bath, as it was necessary for him to prove that he had
this amount of money."

This appears to have been nothing more than a reminder
to the ship-mate of what had meanwhile become to the

554 I EXTRATERRITORIAL CASES.

accused an important circumstance and we see in it
nothing necessarily discrediting Knight's testimony even
had he received the letter, of v^^hich there is no evidence
and which he denies having done stating that he was at
the time ashore in the hospital. It seems to be certain,
moreover, that the two never conferred about the matter
prior to the trial.

Finally, it must not be forgotten that while it seems im-
probable that the complaining witness would manufacture
such a charge, there does not, on the other hand, appear
to be any sufficient motive on the part of the accused for
committing so serious an offense. It is conceded that he
had just been paid, and even if we exclude the $107, which
the complainant claims to have given him, the accused had
on his person a sum seemingly sufficient for his immediate
needs. Why then should he resort to so desperate an ex-
pedient as "raising a bill" and remain, while wearing his
uniform, ten minutes in the shop of his victim, inviting
detection while the crime was being consummated?

(3) At the police station the accused seems to have talked
first with Sgt. Macintosh who says that the accused asked
to speak privately with him and said "Can't you settle this?
I will make it right with you if you do." The accused in
explanation declares that he did not then know the nature
of the charge against him. He says :

"When I was first arrested I did not know what the trouble was.
I thought it was for disturbance of the peace. After arriving at
the police station I told the Sergeant — He said 'Hello, what's the
trouble now.' I said, *I don't know Sergeant, this man wants me
for something; I suppose it is for fighting. If the matter can be
settled I will be glad of it. I have to go back to the ship, my liberty
will soon be up, I will get into trouble.'

Q. Did you have any intention, or was it your intention to offer
this man a bribe?

A. I only thought the matter was a small matter and could be
easily settled."

Inspector Vaughan also testifies that the accused asked
him if the matter could be settled there and then instead of
beiiig referred to his Consul as the Inspector had told him it
would be. As a sailor on short leave the accused no doubt
desired to get out of trouble as soon as possible. His state-

UNITED STATES V. MARTIN, APR. 6, 1913. 555

merits may even raise a suspicion but we cannot convict
him upon that.

The doctrine that one accused of crime is presumed to
be innocent until his guilt is proven, and that such guilt
must be established beyond any reasonable doubt, is now a
part of the law of all civilized countries. Contrary to
popular belief it is not original with, nor peculiar to, Anglo-
American jurisprudence.

"Ammianus Marcellinus relates an anecdote of the Emperor Ju-
lian which illustrates the enforcement of this principle in the Roman
law. Numerius, the governor of Narbonensis, was on trial before
the Emperor, and, contrary to the usage in criminal cases, the
trial was public. Numerius contented himself with denying his guilt,
and there was not sufficient proof against him. His adversary, Del-
phidius, 'a passionate man,' seeing that the failure of the accusation
was inevitable, could not restrain himself, and exclaimed, *0h, il-
lustrious Caesar! If it is sufficient to deny, what hereafter will
become of the guilty?' to which Julian replied, 'If it suffices to accuse,
what will become of the innocent?' " ^

The penalty for the offense with which the accused is
charged is most severe — ^the maximum being fifteen years
imprisonment and a fine of $1,000 or $5,000 gold, according
to the provision which may be applied.* And if the evidence
is sufficient to convict at all it would justify the maximum.
We must be very sure of guilt before imposing a sentence
of imprisonment for fifteen years !

II.

If this is true as regards the charge of uttering the forged
note, much more must it be so as regards the averment
that it was done with criminal intent. The District Attor-
ney with commendable frankness calls attention to the
rule that such intent must be proved independently of the
element of passing the money, and cites an authority which
declares '^

"Ordinarily, and as a general rule, there should be some evidence
of knowledge, circumstantial or otherwise, aside from that which
results from evidence of the naked fact that the spurious paper was

3 Chief Justice White in Coffin v. U. S., 156 U. S., 455, 39 L. ed.,
491, citing Rerum Gestarum, lib. XVIII, c. 1.
*Fed. Penal Code, sees. 148, 149.
• Gallagher v. U. S., 144 Fed., 87.

556 I EXTRATERRITORIAL CASES.

passed. There can, of course, be no absolute or general rule as to
what the evidence should be. It might, perhaps, result from a de-
scription of the appearance of the party when the money was passed,
like evidence showing an attempt to disguise personal identity."

But criminal intent could only be proven here by relying
on circumstances which are necessary to prove the distinct
element of uttering the note. For it is not contended that
the evidence as to the latter would be sufficient without all of
the alleged corroborating circumstances discussed above.
No others are mentioned which would support the charge of
criminal intent. Moreover, there are in this case none of
the circumstances which the Court in the above excerpt
points out as constituting evidence of such intent. The
person, whoever he might have been, who passed this
altered bill did not, so far as it appears, "attempt to dis-
guise personal identity." He was, it is true, according to
the complaining witness, in a hurry but the latter also says
that the transaction took about ten minutes, which hardly
indicates undue haste.

Considering that the identification of the accused, and
all direct evidence implicating him, emanates from a single
witness and he not a disinterested one, that the circum-
stances relied upon as corroborating are themselves subject
to much qualification and explanation and that no sufficient
motive is shown, we are unable to say that the guilt of the
accused is established beyond any reasonable doubt. He is
entitled under the law to the benefit of any such doubt and
we have accordingly no alternative but to direct an acquittal
with costs de officio.

IT IS so ORDERED.

IN THE UNITED STATES COURT FOR CHINA.

Star Garage Co., Ltd., Plaintiff and Appellant, v. H. S.

HONIGSBERG & Co., Defendant and Appellee.

[Cause No. 497; filed April 18, 1916.]

SYLLABUS.
(By the Court.)

1. CONTRIBUTORY NEGLIGENCE. Under the doctrine of contributory
negligence, which prevails in most Anglo-American jurisdic-

STAR GARAGE CO. V. HONIGSBERG & CO., APR. 18, 1916. 557

tions, a party cannot recover for an injury to which his own
negligence has contributed.

2. Id.: Onus Probandi: In the Federal Courts the burden of prov-

ing such negligence rests upon defendant, but such proof may
appear from plaintiff's own evidence.

3. Id. : Evidence examined and found to show that plaintiff's chauf-

feur was guilty of negligence contributing to a collision be-
tween his own car and defendant's.

APPEAL from the Consular Court for the District of
Shanghai.
H. D. Rodger, Esq., for appellant.
Messrs. Flertiing & Davies, by Mr. Davies, for appellee.

LOBINGIER, J.:

Plaintiff brought this action in the court below to re-
cover damages for injuries to his automobile, resulting
from a collision with one belonging to the defendant and
occurring at the intersection of Chekiang and Canton Roads
in the International Settlement of Shanghai. After
plaintiff had produced his evidence defendant moved for
a dismissal on the ground that said evidence disclosed that
plaintiff was not entitled to recover. From an order sus-
taining said motion plaintiff appealed.

It appears that during the last Chinese New Year, viz.,
on February 2, 1916, at about 5.30 a. m., plaintiff's car
was moving north on Chekiang Road and defendant's was
going east on Canton Road, both rapidly. There is no
specific estimate as to the rate of speed of defendant's car,
most of plaintiff's witnesses merely stating that it was
moving faster than plaintiff's and no witness having tes-
tified in defendant's behalf. As to plaintiff's car, how-
ever, the chauffeur testifies

"Before reaching the corner, I was travelling 20 miles an hour
but slowed down to about 15 miles." (p. 2.)

Yet the street over which he was passing was "narrow"
and "crooked" (p. 6) and tho there were shop lights there
is no suggestion of any other.

He further testifies "I did not apply the brake" (pp. 1,
2) ; "I looked up the cross road but did not see Honigsberg's

558 I EXTRATERRITORIAL CASES.

car" until he "reached the middle of the cross road," (p. 2)
nor "until it was about 20 feet from me."

Other witnesses for the plaintiff, however, saw defend-
ant's car at a much greater distance — one (Tsang San Tse)
"when it was about 10 houses from the corner" and another
(Moh Hung Yue) when it was "about 5 houses from the
corner." Still another witness for plaintiff (Tsoong Tze
Chi) testifies that both cars "had lights" and in fact the
chauffeur himself states that "all cars use small lights;"
and it would seem to follow that he could not have looked
carefully toward the west in entering the intersection of
the street or he would have seen defendant's car approach-
ing at a much greater distance than he says. The street
corners are occupied by high buildings hiding all view of
the west until toward the center of the cross street and
common prudence would have dictated a slow and careful
entrance to said street in order to avoid approaching ve-
hicles which could not be seen.

It thus results from plaintiff's own evidence that in the
early morning while yet dark his car was moving along a
narrow street at the rate of 20 miles an hour, that on
approaching an intersection of another street, the view of
which was hidden by high buildings, he continued at a
speed of 15 miles an hour, that he failed to look to the
west with sufficient care to observe another car approach-
ing at a much greater rate of speed and equipped with lights
and that he failed to apply the brake at any time. The
question is whether, regardless of the negligence of which
defendant's chauffeur may have been guilty, plaintiff may
recover upon such evidence.

The doctrine of contributory negligence is well estab-
lished as a part of the common law of most Anglo-American
jurisdictions ^ and is applied by the Federal, as well as
the state, courts.^ It has been defined as

*"The universal rule is that if negligence on the part of the
person injured contributed to the injury he is not entitled to recover
therefor." 29 Cyc, 507.

' Glaus V. Northern Steamship Co., 89 Fed. 646, 32 C. C. A. 282 ;
Gravelle v. Minneapolis, etc., R. Co., 10 Fed. 711, 3 McCrary 352.

STAR GARAGE CO. V. HONIGSBERG & CO., APR. 18, 1916. 559

"such an act or omission on the part of plaintiff, amounting to an
ordinary want of care, as, concurring or cooperating with the neg-
ligent act of defendant, is the proximate cause or occasion of the
injury complained of." *

In some jurisdictions the burden of proving the want
of such neghgence rests upon plaintiff,* but the majority
rule is that the defendant assumes the burden of proving
Buch negligence.' The Federal Courts apply the latter
rule ® even in states where the opposite one is followed by
the local tribunals ; ^ but it is sufficient if negligence appear
from plaintiff's evidence.

Under all authorities we have consulted a speed of 20 or
even 15 miles an hour on a narrow street is treated as ex-
cessive. In enacting a law for the District of Columbia,
Congress has fixed 12 miles an hour as the maximum rato
"between intersecting streets and avenue;" ^ and while this
may not be applicable in all respects to Shanghai (the
streets are much wider and straighter in Washington) it
at least expresses the legislative intent as to what should
be the limits of speed. Even in the absence of such an ex-
pression a rate of 8 or 10 miles an hour has been held ex-
cessive and negligent.^ And one who drives his vehicle
at such a rate of speed as to contribute to a collision is
precluded from recovery for injuries therefrom."

As is observed in one case:^^

"The driving of an automobile at a high rate of speed thru city
streets, at times when and places where other vehicles are constantly

*29 Cyc, 505.

^Id. 603.

= Id. 601.

« Inland etc. Coasting Co. v. Tolson, 139 U. S., 551, 35 L. ed., 270.

'■ Chicago etc. R. Co. v. Price, 97 Fed., 423, 430.

' Act of June 29, 1906, Sess. I, 34 U. S. Stats, at Large, Pt. I, Ch.
3615, sec. 1.

" Gregory v. Slaughter, 124 Ky. 358, 99 S. W. 248 ; Wales v. Harper,
(Manitoba), 17 West. L. R.

"Garrett v. People's Ry. Co., (Del.) 64 Atl. 254; Lauson v. Fond
du Lac, 141 Wis. 57, 123 N. W. 629; Broschart v. Tuttle, 59 Conn. 1,
11 L. R. A. 33.

"Irwin v. Judge, 81 Conn. 492, 71 Atl. 572.

560 I EXTRATERRITORIAL CASES.

passing, and men, women, and children are liable to be crossing; or
around corners at the intersection of streets; or in passing by street
cars from which passengers have just alighted or may be about to
alight; or in other similar places and situations where people are
liable to fail to observe an approaching automobile, is in itself ac-
tionable negligence. One operating an automobile under such cir-
cumstances is bound to take notice of the peculiar danger of collisions
in such places. He cannot secure immunity from liability by merely
sounding his automobile horn. He must run his car only at such
speed as will enable him to timely stop it to avoid collisions."

Plaintiff's counsel contends that even if the chauffeur
had gone more slowly the collision would have occurred;
but that would hardly have been true if the chauffeur had
checked his speed to the minimum on reaching the street
intersection, had looked for and discovered defendant's ap-
proaching car (as the other witnesses did) and waited
until it had passed. It is true that one of the witnesses
declares that if plaintiff's car had been going faster the
collision would not have occurred because the car would
have been out of the way; but that is like saying that if
plaintiff's car had happened to come along about five min-
utes earlier the accident would have been avoided. We
cannot speculate upon what might have happened under
other conditions; we can only seek to determine from the
evidence whether plaintiff's chauffeur exercised the care that
the law requires under the conditions as they existed.

In view of the speed, the failure to apply the brake, or
to discover the approaching car we are unable to say that
he did and this notwithstanding the fact the defendant's
chauffeur may have been guilty of still greater negligence,
tho it must be remembered that defendant's witnesses have
not been heard on that point. That both were driving reck-
lessly we may well believe for we have seen too many exam-
ples of such driving in Shanghai not to feel that it is little
short of providential that more of such accidents do not
occur daily. But where both parties contribute to such
a result by their negligence the Anglo-American Law leaves
each where it found him.

The judgment of the consular court, with costs to the ap-
pellant, is

AFFIRMED.

LING AH CHOY ET AL. V. SOCONY, APRIL 25, 1916. 561

IN THE UNITED STATES COURT FOR CHINA.

Ling Ah Choy et al., Plaintiffs, v. Standard Oil Com-
pany OF New York, Defendant.

[Cause No. 427; filed April 25, 1916.]

SYLLABUS.

(By the Court.)

1. JUDGMENTS: PLEADINGS. Only claims properly pleaded are en-

titled to adjudication.

2. CONTRACTS: PERFORMANCE. A contract to "complete * * * j^

a satisfactory manner" a tank for the storage of oil is not
performed by constructing a leaky tank and the contractee is
not obliged to accept or pay for such a tank.

3. Id. : Acceptance : Evidence reviewed and found insufficient to

show either an acceptance, express or implied, by the contractee
or that the defects were due to improper material furnished
by it or that the contractor was wrongfully prevented from
finishing.

4. Id.: Id.: Waiver. A provision for payment by installments may

be waived by the contractor but such waiver in no way binds
the contractee nor constitutes an acceptance of the work.

Messrs. Fleming & Davies, by Mr. Fleming, for plaintiffs.
Messrs. Jernigan & Fessenden, by Mr. Fessenden, for
defendant.

LOBINGIER, J.:

This is an action on a contract by which plaintiffs under-
took to supply labor to construct an oil tank for defendant.
The latter furnished the material and the contract re-
quired plaintiffs to "complete the tank in a satisfactory
manner * * * jj^ seven weeks * * * from the
date of delivery of the whole of the material." Plaintiffs
commenced work on September 15, 1914. Under clause 8
of the contract they were entitled to insist upon payment
of one-fourth of the total price (Tls. 2,350) upon complet-
ing successive stages of the work ; but such payments were
not made and plaintiffs continued without so insisting. The
contract provides for both water and oil tests of the tank
and it is conceded that such tests disclosed a considerable
leakage. The defects in the tank and the remedies there-

14008 O. W. 36

562 I EXTRATERRITORIAL CASES.

for afforded the subject of a long controversy between plain-
tiffs and certain representatives of defendant. On Novem-
ber 12 one of defendant's tank steamers carrying 9,000 tons
of oil was expected and on that day or the next plaintiffs
discontinued work entirely. Thereafter defendant em-
ployed another contractor who failed likewise to put the
tank in a condition satisfactory to it. Subsequently, the
entire tank was taken down and rebuilt by a third con-
tractor.

The petition alleges the completion of the tank *'up to
the point of testing by water;" the disclosure of leakage
and "that said plaintiffs at once proceeded to repair said
leaks, when without any just cause and in breach of the
terms of said contract the said defendant refused to allow
them to proceed". There is also a claim for extra materials
amounting to $65.86.

The answer alleges defendant's failure to "complete said
tank within the time specified in said contract or at all"
(par. 6) "denies that without just cause and in breach of
terms of said contract defendant refused to allow plaintiffs
to proceed with the completion," and puts plaintiffs on their
proof as to the extra materials.

The burden rests upon plaintiffs to prove that they met
the contract requirement to "complete the tank in a satis-
factory manner" and, contrary to our first impression, we
are now of the opinion that said burden has never shifted.
As we have seen, plaintiffs do not even aver such comple-
tion ; they merely allege readiness to complete and preven-
tion by defendant. Of course this averment is likewise
for plaintiffs to establish. Had they pleaded and proved
completion the burden might then have shifted to defend-
ant to show that the tank was unsatisfactory.

As it is, the unsatisfactory character of the tank as plain-
tiffs left it is practically undisputed. Plaintiff Ah Choy
himself says that it "leaked heavily" (p. 25) and further
testifies :

"Q. Where did it leak?
A. Three joints freely.

Q. That is where the plates overlap — on the ends of the plates or
at the top or bottom?

LING AH CHOY ET AL. V. SOCONY, APRIL 25,1916. 563

A. On the sides.

Q. On the ends where they meet?

A. Yes.

*******

Q. Did it leak any place else?

A. On the outside there were about 10 rivets which leaked." (pp.
22, 23.)

Mr. Stevens, manager of defendant's construction depart-
ment, says:

"The condition of the first ring of riveting was not satisfactory,
particularly in the upper part. The ends of the plates were not
properly drawn out, that is they were not hammered down to a thin
edge so that the other plates could be placed and a tight joint made.
The rivets toward the upper part of the first ring were not dra^vn
up tightly so as to bring the plates into contact between the rivets,
and I made some strips of tin plate such as the Standard Oil Com-
pany's oil tins are made of, about six or eight inches long and about
as wide as my finger, and I could insert these strips of tin between
the rivets quite freely in numerous places." (p. 3.)

Mr. Robertson, who conducted the water test, says :

"The tank was leaking very badly. There was scarcely a seam
of the tank that had not one or more leaks in it. * * *

Q. How many gallons and why did it leak?

A. Between 30 and 40 gallons. * * *

Q. In your experience would water ordinarily leak more freely
than petroleum oil?

A. Oil would leak much more freely.

Q. In other words, it is more difficult to hold oil in the tank than
water?

A. Yes." (pp. 2, 16, 14.)

The other witnesses called by plaintiffs also testify (p. 8)
to leakage and there is no contradiction. As the purpose
of building the tank was to provide a receptacle for stor-
ing oil it will hardly be claimed that plaintiffs met the
contract requirement to "complete the tank in a satisfactory
manner" so long as the leakage amounted to forty gallons
a day or even half that.

Plaintiffs called as witnesses their foreman and two work-
men who state that they remained to watch after the second
contractor took charge and that his laborers were unskilled
and worked improperly. If there were no testimony as
to the tank's previous condition we might follow plaintiffs'

564 I EXTRATERRITORIAL CASES.

counsel in his argument that the leakage was caused by
the second contractor. But the testimony as to leakage
just reviewed all relates to a period before said contractor
took charge. Moreover according to Mr. Robertson (pp.
14 and 16) the oil test under the second contractor showed
considerably less leakage than that made while plaintiffs
were working.

The first and most elaborately argued contention in plain-
tiffs' brief is that defendant accepted the tank. Yet accept-
ance is nowhere pleaded. As we have seen the case set forth
in the petition is that defendant wrongfully prevented the
completion of the tank ; not that it was accepted.

"It is a well-settled principle that no proof can be offered of mat-
ters not put in issue by the pleadings." ^

This rule is not merely a technical one; it goes to the
very merits of the case. For it cannot be assumed that
defendant was prepared to meet and confute a theory not
suggested in the pleadings.

But we do not find that the evidence would support such
an averment even had it been made. Mr. Stevens testifies
on cross-examination:

"The time I saw the bottom my attention was attracted by the
fact that they had part of it on the ground and the other part in
the air, and it was buckled in a way that was straining the bottom.
I protested against this method and I never accepted the bottom of
the tank. * * *

Q. You had already passed the bottom and first two rings?

A. No.

Q. The bottom and one ring?

A. No.

Q. Did you allow the work to proceed after inspecting it and see-
ing it lowered on the foundation?

A. Yes.

Q. If the work was so bad that it had to be taken down why didn't
you stop the job at that point?

A. Because it was not apparent at that time that it would have
to be taken down.

Q. You say that Ah Choy has constructed — when you examined
that work you say there were places where you could put a piece
of tin thru?

'31 Cyc, 680.

LING AH CHOY ET AL. V. SOCONY, APRIL 25, 1916. 565

A. Yes.

Q. In your judgment is that a matter that could be remedied?

A. It could, yes.

Q. Why wasn't it?

A. It was because Ah Choy tried to save time by overcaulking.

Q. Then if you found it was overcaulked, why did you allow it to
proceed?

A. We protested.

Q. The contract says the work was to be carried on by your en-
gineers ?

A. Yes.

Q. You are the head of the engineering staff in northern China,
why didn't you stop it?

A. It did not need to result — it was not all overcaulked at that
time; he had only started to overcaulk.

Q. Why did your superintendents allow it to proceed if it was
being overcaulked?

A. They only allowed it to proceed up to a certain point and
then * * *.

Q. And your engineers allowed him to proceed in this condition;
that hardly seems reasonable.

A. We could not tell how bad it was until we put the water test
on it." (pp. 3, 21, 22, 24, 25.)

Plaintiff Ah Choy to a certain extent corroborates this
testimony. On cross-examination he says:

"Q. You heard Mr. Stevens on the witness stand yesterday say
that rivets had been driven in the tank as you say they had been —
slanted in that way?

A. Yes.

Q. Mr. Stevens says that he was in Tientsin, and he arrived there
just after the foundation had been laid and called that to your at-
tention and told you to stop — that is correct?

A. Yes.

Q. What else did Mr. Stevens tell you while he was there?

A. The corner of the overlap was not quite tight." (p. 35.)

But plaintiff Ah Choy claims also to have dealt with an
engineer named Getz of whom he testifies:

"Q. Did he tell you to stop work?

A. No.

Q. You were urged to proceed with it?

A. Yes, he said 'you had better finish the work.' "

It appears, however (p. 27), that Mr. Getz has since
died and there is no way now of testing by him the accuracy

566 I EXTRATERRITORIAL CASES.

of plaintiffs' claim. Had the contract been made in the
name of Mr. Getz these alleged conversations with him would
have been entirely excluded.^

Accepting plaintiffs' statement that Mr. Getz asked him
to finish the work that appears to have been during its
early stages, before the defects later complained of were
apparent. Under all the testimony there was no express
acceptance, but quite the reverse, at or about the time the
water test was made.

Plaintiffs' counsel, however, seems to rely upon an im-
plied acceptance. His argument appears to be that as the
work was to be paid for by installments, defendant, by per-
mitting it to pass beyond the stage where a payment was
due, accepted it v'^o tanto. Of course if the payments had
actually been made they would doubtless have constituted
such an acceptance, at least to the extent of precluding their
recovery back if not paid under mistake of fact. But it is
conceded that no payments were made and that fact would
seem to imply disapproval rather than acceptance of the
work. Indeed plaintiffs' failure to insist on receiving the
installments provided for by clause 8 of the contract, and
their prosecution of the work non obstante seem to us rather
to indicate a waiver of said clause than a disposition by
defendant to accept the tank.

It is true that plaintiff Ah Choy testifies (p. 21) that
he "asked the engineer there for payment. He says the
money has not been remitted to Tientsin." But this engi-
neer, he afterward explains, was Mr. Getz whose death
again prevents us from testing the statement. On cross-
examination, however, said plaintiff says:

"Q. Mr. Ah Choy you are perfectly positive that Mr. Stevens said
nothing to you about paying you the money under this contract, or
not paying it to you?

A. No. * * *

Q. At any time while you were engaged in this work did you make
any demand on the Shanghai office for payment?

A. Yes.

Q. How did you make that, verbally or in writing?

A. I wrote to my brother and made demand.

'Wigmore, Ev., I, 578; Act of Congress of March 3, 1901, Sess. II,
31 U. S. Stats, at Large, Ch. 854, sec. 1064.

LING AH CHOY ET AL. V. SOCONY, APRIL 25, 1916. 567

Q. Was that before or after you saw Mr. Stevens in Tientsin?

A. I forget.

Q. Did you make any request on the Shanghai office of the Stand-
ard Oil for payment until you finally stopped work?

A. Yes.

Q. About what time — can you remember?

A. I was in Tientsin and I was demanding payment from the
engineer.

Q. I am speaking about the Shanghai office?

A. About the 10th of October, because I could not get payment in
Tientsin, so I wrote my brother to go and see the Standard Oil
Company.

Q. You did not write direct?

A. I did not write directly to the company.

Q. Is it not true Mr. Ah Choy that the first time you asked the
Standard Oil for payment of this contract was after you returned
from Tientsin?

A. From Tientsin I went to Hankow. My brother made demand.
After I got back I made demand.

Q. You made demand when you returned?

A. Yes.

Q. That was the first demand you ever made on the Standard
Oil for payment at Shanghai?

A. Yes." (pp. 38, 39, 40.)

Moreover Mr. Stevens testifies:

"Q. Was anything said between you and Ah Choy as to the pay-
ment of installments on the contract?

A. I told him that I would not give him anything until he made
the work good. * * *

Q. Did he make any protest against the withholding of the money?

A. No.

Q. While you were there, did he ever make demand upon you for
the payment of this money?

A. No." (pp. 6, 7.)

And, Mr. Robertson confirms this by saying :

"Q. Did you hear any discussion between Mr. Stevens and Ah
Choy with reference to any payment of installments?

A. He told him that the payments would be held back until the
work was made satisfactory. * * *

Q. Do you recall if Mr. Ah Choy made any reply to Mr. Stevens?

A. He assured Mr. Stevens that he would guarantee an oil tight
tank, and that he had built many of these tanks, and that he was
quite capable of carrying out the work." (pp. 6, 7.)

Under the terms of the contract plaintiffs might have
insisted upon the payment of "25% when the bottom was

568 I EXTRATERRITORIAL CASES.

tested and laid." Failing to receive it they would have
been justified in refusing to proceed. But they chose to
waive that right and, whatever their continuance of the
work may show, it certainly does not bind defendant, nor,
especially in view of its repeated refusal to pay, does it even
tend to show an acceptance of the tank.

III.

Coming now to the claim actually pleaded, viz., that
plaintiffs were prevented by defendant from completing
the work, it will be observed first that this is hardly con-
sistent with the argument just reviewed. Defendant could
hardly have accepted the tank and at the same time pre-
vented plaintiffs from rendering it acceptable. According
to his testimony, as we have seen, plaintiff Ah Choy was
first urged to proceed with the work and the want of ob-
jection to his continuing later is the basis of plaintiffs' claim
that defendant is now estopped to object. But can this
testimony be invoked simultaneously with other evidence
to the effect that plaintiffs were not allowed to continue ?

Equally inconsistent seem the reasons given by plaintiff
Ah Choy for the refusal to let him proceed. First he
says that it was because he refused to give Mr. Getz money.

"Q. That was the sole reason why you were prevented from finish-
ing, because you would not give Mr. Getz money? The sole reason?
A. Yes." (p. 38.)

But a charge like this against the integrity of a dead
man — so easy to make where there is none to defend — ought
to have some corroboration. Especially is this true where,
almost on the same page said plaintiff gives a different
reason, saying "Getz told us that you have finished your
work and your contract time is finished and you can go".
For the latter ground Mr. Getz would have had some reason.
Plaintiff Ah Choy fixes the date when he stopped work as
"about Nov. 12 or 13" (p. 37) . This was more than eight
weeks after the date when he had commenced — Sept. 15
(p. 12). But the contract (clause 1) required completion
"in seven weeks" and declared (clause 10) that time was
"considered important" — so much so indeed that a penalty

LING AH CHOY ET AL. V. SOCONY, APRIL 25, 1916. 569

of Tls. 50 was imposed for each day's delay. It is true
that said plaintiff says there were ten rainy days which
should be excluded and in answer to the leading question
(p. 46)

"Is that a general custom in China among builders and con-
tractors?"

he says,

"Yes. Work cannot be carried on."

But the contract makes no such exception and the exist-
ence of a custom sufficiently binding to override the contract
would seem to require more satisfactory proof,- and should
also be pleaded.*

Still another reason offered by plaintiff Ah Choy for
failure to continue was that

"at the time Getz instructed me to put my workmen into the tank
to work there was still about more than one foot of water in the
tank, and it was after five o'clock in the evening. I told him the
water must be entirely let out and it was too late for my workmen
to work." (p. 26.).

On this point, however, we have another witness, Mr.
Robertson, who testifies :

"Q. Do you know whether Ah Choy made a refusal to do the
work inside the tank when asked by the engineer, because of water
inside the tank?

A. Yes.

Q. Did he?

A. Yes.

Q. What was said?

A. He said it was too cold and too wet for his men to work inside.

Q. Can you describe to us exactly what the actual condition of
the flooring of the tank was at that time? There has been a state-
ment that there was 18 inches of water?

A. The man hole door at the bottom of the tank was not more
than twelve inches off the ground, and the door was off, so it was
impossible for there to be 18 inches of water. The water in the
tank was run off through the pipe line to the level of the man hole
door. The door was then taken off and the remainder of the water
siphoned off.

Q. Was it possible for a workman to get in and work?

A. At that time it was quite possible for a man to work without
standing in the water by putting down planking.

'12 Cyc. 1100.

* Governor v. Whithers 5 Gratt. (Va.) 24, 50 Am. Dec. 95; Hight
V. Bacon, 126 Mass. 10, 30 Am. Rep. 639.

570 I EXTRATERRITORIAL CASES.

Q. It was quite possible to put planks there so that the workmen
would be on dry ground?

A. Yes.

Q. Some of the work was up the side of the tank where scaf-
folding could be used?

A. Yes.

Q. So far as you can judge, there was nothing to prevent the
workmen going in there?

A. Not on that day." (pp. 4, 15.)

According to this witness, moreover, plaintiffs were given
fair warning. He says:

"Mr. Getz called in the foreman to the installation office and
gave him the ultimatum that if the work was not carried on he
would be put off the job * * *

Q. Do you know if any time was fixed in which the contractor
should proceed with the work or stop?

A. Yes, if he did not start work by two o'clock on November 11
he would be put off the job.

Q. Did the contractor make any attempt to start before that time?

A. No." (pp. 17, 5.)

It must be remembered also that defendant was anxious
to have the tank completed in order to store the incoming
cargo and it seems highly improbable that it would have
stopped plaintiffs arbitrarily.

Finally even had plaintiffs established, their averment
that they were not allowed to proceed it would be insuf-
ficient.

"One who seeks to recover payment for work partly performed
must prove that the work which he did was done according to his
covenant. Until he shows this, evidence that he was prevented from
finishing it by the defendant is irrelevant." *

IV.

Another claim in that the defects in the tank which
rendered it unserviceable were due to improper material,
especially rivets, furnished by defendant and used by in-
struction of its engineer.

But this claim, like that of acceptance, is nowhere pleaded
and we might dispose of it on that ground. To avoid any
possible injustice to plaintiffs, however, we shall examine
the evidence relative thereto.

= 9 Cyc. 759.

LING AH CHOY ET AL. V. SOCONY, APRIL 25, 1916. 571

The contract (clause 2) requires defendant "to furnish
all the necessary materials" including rivets ''in accordance
with the shipping list." There is no testimony that they
did not so accord. Manifestly if they were defective de-
fendant would be the sufferer. A priori it would seem
improbable that defendant should provide improper mate-
rials for its own tank.

Plaintiff Ah Choy, however, testifies regarding the rivets :

"I told the engineer that they were too short. He said they came
from home, can't help it.
Q. Who was the engineer?
A. Getz." (p. 14.)

Plaintiffs' foreman testifies (p. 7) to the same effect.
Once more, then, plaintiffs rely upon an alleged conversation
with a party since deceased. Ah Choy admits (p. 33) that
he said nothing to the superior of Getz, Mr. Stevens, who
was in Tientsin at the time, and claims that the latter did
not mention rivets to him. Mr. Stevens, however, testifies :

"Q. Did you have more than one conversation with Ah Choy?

A. Yes.

Q. How often did you see him?

A. I should say I saw him every other day while I was there.

Q. Discussed the tank with him every other day?

A. In some of its phases.

Q. Did Ah Choy ever give you to understand that any of the
materials supplied by the Standard Oil Company for this tank were
in any way defective?

A. No, Sir.

Q. Did you have any discussion with him in reference tO' rivets?

A. Yes, I told him that he ought not to cut the rivets.

Q. Did he make any reply to that?

A. He said the rivets were too long and it was the practice to
cut them off in China.

Q. Why did you refer to the question of rivets?

A. Because the rivets were furnished with the proper length
to hold the plates, and if you cut them off you have not enough
length to form a bottom on the other side of the rivet to hold it.

Q. Is there any thing in the appearance which would indicate
that they had been cut?

A. Yes, only the small size of the head; you can tell after the
rivet has been fixed." (pp. 7, 8.)

This testimony is again corroborated by that of Mr.
Robertson who, in detailing what Mr. Stevens said to Ah
Choy, declares

572 I EXTRATERRITORIAL CASES.

"He also spoke about the riveting and told him that all the holes
that were out of alignment had to be reamed out and fitted with
larger bolts.

Q. Anything more?

A. All the bad rivets were then to be cut out and re-riveted."
(p. 10).

The same witness further testifies:

"Q. What would you consider were the defects in this work in
the second stage?

A. So far as I could see, the cutting of the rivets and not having
sufficient heads to insure a tight job.

Q. What do you mean by cutting?

A. The contractor cut off about an eighth of an inch on a great
number of rivets.

Q. Yes, that you know?

A. Yes.

Q. What would be the effect of cutting off the rivets?

A. When the head is knocked down you do not get a full head —
the head is too thin." (p. 7.)

We think, therefore, that a preponderance of the tes-
timony shows that, whatever Getz may have said (and it
must always be remembered that he cannot be heard) a
more authoritative agent of defendant did object to the
manner of riveting, and that the results complained of
were due to such manner and not to defects in the rivets
themselves.

The claim of $65.86 for extra materials furnished by
plaintiffs is made in accordance with clause 9 of the con-
tract which provides for such extras "upon the written
authorization of the engineer." Ah Choy produces a requi-
sition order (Ex. B-1) which he says (p. 4) was given
him by the engineer, for all but two of the items in his bill
(Ex. B) and which he says were used in constructing the
tank. There being no contrary evidence plaintiffs would
seem to be entitled to payment for such bill less the two
items not shown to have been authorized, the deduction of
which leaves a balance of $53.70.

Plaintiffs are not alone in presenting points other than
those raised by the pleadings. Defendant's brief refers to
a set off but we do not find it pleaded in the answer. Certain
items of damage are, indeed, set forth but no judgment

UNITED STATES V. SALSINO, APR. 26, 1916. 573

therefor is asked ; indeed the answer prays for no affirmative
relief except dismissal and costs. We shall not, therefore,
dispose of the case on the theory that plaintiffs earned all
or part of the contract price but that their earnings were
offset by defendant's damages. We hold that plaintiffs
have not met the burden of proving that they did ''complete
the tank in a satisfactory manner;" that the evidence is
insufficient to support the claim set forth in the petition
that such completion was wrongfully prevented, or the
other two claims not pleaded, that the work was accepted
and that the materials were defective. It therefore be-
comes unnecessary to inquire what defendant may have
paid the other contractors.

Judgment is rendered in favor of plaintiffs and against
the defendant for $53.70 and (since there was no tender of
said amount) for the costs.

IN THE UNITED STATES COURT FOR CHINA.
United States v. Roman Salsino.

[Cause No. 500; filed April 26, 1916.]

SYLLABUS.
(By the Court.)

1. SELF DEFENSE. Force used in self defense is excusable only so

far as is reasonably necessary.

2. Id. : Evidence reviewed and found sufficient to show that unneces-

sary force was employed.

Chauncey P. Holcomb, Esq., U. S. Dist. Atty., for the
prosecution.
James B. Davies, Esq., contra.

Lobingier, /. ;

The defendant pleads not guilty to an information charg-
ing him with

"the crime of felonious assault; in that the said Roman Salsino, on
or about the seventeenth day of April, nineteen hundred and sixteen,
at Shanghai, in the Republic of China, and within the jurisdiction
of said Court, did, with intent to do bodily harm, and without just
cause or excuse, assault one, Yang Ah Fok, a citizen of the Republic
of China with a dangerous weapon, namely a knife, having a blade
about five and one-half inches long."

574 I EXTRATERRITORIAL CASES.

It appears to be undisputed that on the night of said
date the accused and a companion named Aranas, both being
Filipino sailors on a ship from Manila, were visiting a
brothel on Yalu Road, Shanghai, on emerging from which
they engaged in an affray in the course of which the com-
plaining witness Yang Ah Fok, a ricsha coolie, was
stabbed and seriously injured so that he is still in the hos-
pital. The principal points of dispute are as to who was
the aggressor and which of the two Filipinos did the stab-
bing. The complaining witness declares that both made an
unprovoked assault upon him, and that the accused Salsino
used his knife while the other Filipino struck with his
fist. To the constable who came first upon the scene Yang
Ah Fok likewise identified Salsino as the one who stabbed
him and he is corroborated in the main by another Chinese
employed in a Japanese shop nearby and who claims to
have witnessed the assault.

On the other hand the two Filipinos both say that they
encountered a number of Chinese who attacked them and
that they acted in self defense. Salsino first maintained
that he did not see the complaining witness there and
did not know that any one was hurt, but later he says to the

"Q. Now do you know who stabbed that ricsha coolie?
A. I don't know whether it was my companion or myself, but I
did not intend to hurt the ricsha coolie." (p. 2.)

He admits that the knife produced in evidence is his
and that he had it concealed on his person but says that
it remained there until taken by a constable and that he
himself neither drew nor used it.

Aranas, the other Filipino, says that he did not see his
companion with a knife but that he himself, tho some one
had caught his hand, succeeded in extracting his corta-
plumas (penknife), opening it with his teeth and the other
hand, and using it and that he afterward threw it away.
He also admits that "when I pushed them with a knife in
my hand I may have probably hurt a Chinese but it was not
intentionally done."

We confess to some degree of skepticism regarding the
story of each group. It is unreasonable to suppose that

UNITED STATES V. SALSINO, APR. 26, 1916. 575

the complaining witness alone wantonly attacked the two
Filipinos. But it also seems unlikely that the latter, who
were strangers in a strange land, made an entirely unpro-
voked assault upon the former. We are disposed to believe
that others than these three were involved.

But accepting at its face defendant's claim that he acted
in self defense that could only excuse him if he used no
more force than was reasonably necessary to repel his
assailants ' and according to his own testimony the com-
plaining witness could hardly have been an assailant be-
cause the accused did not even see him. Besides it is not
claimed that any of the Chinese had weapons and the fact
that one of them was seriously wounded while both Filipinos
were uninjured strongly points to the use of unnecessary
force.

It is urged by defendant's counsel that his knife contains
no blood stains and that this affords ample corroboration
of the Filipinos. But no microscopic or other expert exam-
ination of the knife seems to have been made by either
side and in the absence thereof we are unable to say that
some of the stains appearing thereon were not caused by
blood rather than rust. Sergeant McKinzie testifies that
both of defendant's hands were bloody. This is not denied
and strongly indicates that the accused participated in what-
ever force was used. And while one disinterested witness
other than complainant identifies the accused as the one
who used the knife, the testimony of the latter's companion
amounts to no more than that he did not see the accused
use it. Moreover it seems unlikely that a wound so serious
as that received by the complainant would have resulted
from the use of what Aranas calls "simply a penknife for
cutting nails."

The Federal Penal Code provides that

"Whoever shall unlawfully strike, beat, or wound another, shall be
fined not more than five hundred dollars, or imprisoned not more
than six months, or both." ^

* Corpus Juris, V, 746. Such is also the doctrine which would be
applied were defendant tried in his own country. Philippine Penal
Code, Art. 8 (4 [2]).

= Sec. 276, par. 4.

576 I EXTRATERRITORIAL CASES.

We find the evidence sufficient to bring the case within
this provision and the accused is accordingly sentenced to
six months of imprisonment, to be served in Bilibid Prison,
territory of the Philippines, and to pay the costs of this
prosecution.

On the same day another sentence was imposed upon said de-
fendant in cause No. 501, reading as follows:

The accused pleads guilty to an information charging him with
"the crime of carrying a concealed dangerous weapon; in that * *
he did have concealed about his person a dangerous weapon * *
being a knife with a blade about five and one half inches long."

The statute ^ under which this prosecution is brought provides that
the offender

"shall, for the first offense, forfeit and pay a fine or penalty of not
less than fifty dollars nor more than five hundred dollars, of which
one half shall be paid to any one giving information leading to such
conviction, or be imprisoned in the jail * * not exceeding six
months, or both such fine and imprisonment, in the discretion of the
courts."

Since the accused has already been convicted and sentenced in
cause No. 500 to imprisonment for an assault involving the same
weapon to the possession of which he here pleads guilty we are
disposed in this case to impose no more than a fine; especially as
in that way alone will the victim of the assault be able to obtain
any indemnity for his injuries.

The accused is accordingly sentenced to pay a fine of fifty dollars,
United States currency, with subsidiary imprisonment in Bilibid
Prison, territory of the Philippines, at the rate of one day for every
two dollars unpaid and the costs of this prosecution. One half of
the amount of said fine is adjudged payable to Yang Ah Fok, the
victim of the assault, and the one giving information which led to
this conviction.

IN THE UNITED STATES COURT FOR CHINA.
Shanghai Tannery Co., Ltd., v. American Trading Co.

[Cause No. 466; filed June 24, 1916.]

SYLLABUS.
(By the Court.)

1. CONTRACTS: Aggregatio Mentium. There can be no contract with-

out a meeting of minds.

2. Id. : Id. : Agency. Where an agent, misled by the mistake of a

•Act of Congress of July 12, 1892, sess. I, 27 U. S. Stats, at
Large, Ch. 159, sec. 2, p. 116.

S'HAI TANNERY CO. V. TRADING CO., JUNE 24, 1916. 577

cable company, erroneously reported that his principal had ac-
cepted a certain offer it cannot be said that the latter's mind
ever met the proposer's.

3. Id. : Id. : In such case the cable company is the principal's agent

to deliver only the actual message given it.

4. Id. : Evidence found insufficient to show a change of position by

plaintiff after announcement of acceptance and before notice
that it was erroneous.

Francis Ellis, Esq., with whom were Messrs. Jernigan &
Fessenden, represented by Mr. Fessenden, for plaintiff.
Messrs. Flerning & Davies by Mr. Fleming, for defendant.

LOBINGIER, J.:

This is an action to recover damages for the non-delivery
of a quantity of tanning extract known as ''quebracho"
and alleged to have been sold by defendant to plaintiff.
The answer is a general denial.

It appears from the undisputed evidence that defendant
had previously sold plaintiff a shipment of the same article
at G. $135 per ton and that in February, 1915, according
to defendant's principal witness, plaintiff

"inquired if we could supply more Quebracho. We told them that
judging from past quotations we had just received, made from our
New York office to our Japan office, we could supply them on the
basis of our last sale. * * * We cabled to New York that same
night, which was the 12th, offering the tei'ms."

Plaintiff's manager, Mr, Reiss, testifies:

"They told me they can possibly take it at about the same price
as last. Then they are wiring on behalf of other firms. I said in
that case you could include fifteen tons of Quebracho on behalf of
the Shanghai Tannery Co."

The cable sent by the Shanghai office of defendant read,
when translated from code, as follows:

"you may buy wire at once if not in order Quebracho (same quality
as before) shipment (to) 5 tons Vladivostok 15 tons Shanghai $122
(per ton of 2,240 lbs. cif.)."

To this a reply was received on Feb. 14 reading :

"Can you extend time to work offer until Monday."

On the day following the Shanghai office of defendant
received from the New York office another cable covering

14008 O. W. 37

578 ^ EXTRATERRITORIAL CASES.

several subjects and the last portion of which was at
first translated to read as follows:

"selling it (them) 2nd subject cannot accept offer nothing available
at present try London office."

Defendant's importing manager, who handled these ca-
bles, testifies that he understood this "2nd subject" to refer
to Chesnut Oak Extract, which had been mentioned in a
previous portion of the cable, that under the company's
cable rules a sale was treated as approved if no reply was
received within thirty-six hours, and that he thus consi-
dered the "quebracho" sale as confirmed. Accordingly on
February 19 (the Chinese New Year holidays having mean-
while intervened) he wrote as follows:

"The Shanghai Tannery Co., Ltd.,

Hugo Reiss & Co., Managers,
Present.
Dear Sirs,

We beg to inform you that our New York Office has accepted
your offer of G$ 134.00 per ton Cif & c for Quebracho extract for
shipment during March. War risk extra.
Yours faithfully.

The American Trading Co.,

(Sgd.) P. L. Byrne,

Sub-Agent."

This appears to have been the only writing between the
parties before the alleged sale.

The code word translated "selling it (them)" was subse-
quently found to have been mutilated, that discovery being
made upon the return of defendant's local manager, who
had meanwhile been absent. The word was then repeated,
whereupon it was found to mean "refer to your cable 84"
(the number of the original offer) so that its correct
reading was : "refer to your cable 2nd subject (Quebracho)
cannot accept offer. Nothing available at present. Try
London office." In other words what was first assumed to
be an acceptance proved to be a flat rejection.

Defendant's witness further testifies:

"We called up the Shanghai Tannery's office and advised them
that the acceptance sent around w^as an error as we had detected
from the repetition of the mutilated word in our cable that they did
not accept Quebracho.

S'HAI TANNERY CO. V. TRADING CO., JUNE 24, 1916. 579

Then they asked me to come around. I asked for Mr. Reiss and
1 went over and interviewed Mr. Komor and explained the matter
to him, and he stated that as that was not in his department I had
better see Mr. Reiss. * * * This was either the 20 or the 21
of February. I eventually did meet Mr. Reiss in his office, explained
to him how our acceptance had been based on a cable mutilation and
that we could not supply him."

On this point plaintiff's manager says:

"I think Mr. Boulon came to the office and said there was a mistake
in the telegram, and that their offer read something quite different
to what they had believed and therefore they could not accept the
order. I told him that was a very serious matter because they knew
the circumstances as to how the contract was made and how we
needed it, and we told him he had to confirm that in writing."

The principal difference between these two versions re-
lates to the time of the conversation. Mr. Boulon, as we
have seen, places it at one or two days after the letter of
Feb. 19. Mr. Reiss (p. 4) thinks it was "about 10 to 14
days afterwards." But he is referring, of course, to the
time when the message reached him, while Boulon, it will
be remembered, says, and it is not disputed, that he first
interviewed Komor, another of plaintiff's employees.

Moreover in its letter to plaintiff of March 11 (Ex. B),
after referring to the mutilated cable and the consequent
error, defendant says: "We immediately advised you of
this fact."

This statement is not questioned in plaintiff's reply
(Ex. C). Finally it seems to us only natural that de-
fendant should have given notice of the error, as it claims
to have done, at the earliest practicable moment. Any
other course would have been most unbusiness-like and
clearly prejudicial to its own best interests.

The question then arises whether, from such negotiations,
any contract resulted. We need spend little time on de-
fendant's claim that its letter of February 19, 1915, was
insufficient to satisfy the Statute of Frauds. That claim
has been decided adversely by this court ^ in an opinion
which restates a well settled rule. Nor can we agree with
counsel's contention that the contract, if made, lacked

*Bell V. Sauer, ante, p. 240.

580 I EXTRATERRITORIAL CASES.

mutuality. The case - invoked on this point differs totally
from that at bar, being an action on an offer not alleged
to have been accepted.

But the question here presented goes deeper than either
of these objections. It is a fundamental doctrine of the
world's chief legal systems that in every contract the minds
of the parties must come together on all its terms. This
was the aggregatio mentiimi of the Roman law — the basis
of its consensual contracts ■■ as well as of their successors in
the modern civil law.' The common law form of the doc-
trine has thus been expressed by an elementary writer:^

"The actual contract consists in the meeting of the minds of the
parties upon the same thing, and in the same sense. In other words,
the thing, intended to be proposed and actually proposed on one side,
must be, in all material respects, the very thing intended to be
accepted and actually accepted on the other. In the absence of this
meeting of minds there can be no contract."

The principle has often been applied to situations like
that presented here. In a leading English case," defendant
sent a written offer to sell real estate for £1,100 which
was a mistaken footing of several items, added hurriedly
and aggregating £2,100. After acceptance he discovered
the mistake and gave notice of it but the acceptor sought
to hold him to his offer and brought suit for specific per-
formance. The bill was dismissed.

Where appellee dictated a letter offering a consignment
of potatoes at fifty-five cents per bushel and the stenog-
rapher, by mistake, transcribed the amount as "thirty-five"

= McDonald v. Bewick, 51 Mich. 79, 16 N. W. 240.

^ Mackenzie, Roman Law, 254 note 1.

'France. Civ. Code, art. 1108.

Germany. Civ. Code, art. 154.

Italy. Civ. Code, art. 1104.

Spain. Civ. Code, art. 1261.

° Robinson, Elementary Law (1st ed.) sec. 172. "This above all
others, perhaps, is an essential element of every contract." John D.
Lawson, in 9 Cyc. 245, citing many authorities.

* Webster v. Cecil, 30 Beavan, 62 (1861). Cf. Burkhalter v. Jones,
32 Kan. 5, 3 Pac. 559 (not expressly overruled in Griffin v. O'Neil,
48 Kan. 117, 29 Pac. 143) ; Chute v. Quincy, 156 Mass. 189, 30 N.
E. 550; Everson v. Granite Co. 65 Vt. 658, 27 Atl. 320.

S^HAI TANNERY CO. V. TRADING CO., JUNE 24, 1916. 581

an acceptance was held ineffectual to bind appellee to deliver
at the lower price.

"Under the allegations," observed the court,' "the minds of the
contracting parties never met upon a proposition to sell potatoes at
35 cents per bushel, because it is alleged that the price was a mis-
take, and that it was so understood by appellants, to whom it was
made. 'As mutual assent is necessary to the formation of a con-
tract (i. e., of sale), it follows that an error or mistake of facts
in that which goes to the essence of the agreement, and therefore
excludes such assent, prevents the formation of the contract, since
each party is really agreeing to something different, notwithstanding
the apparent mutual assent.' ^ We think it is plain that there was
no contract by appellee to sell the potatoes at 35 cents per bushel."

It is true that the court found that appellants knew that
a mistake had been made; but the telegram notifying them
thereof was not sent until four days after acceptance while
in the case at bar, as has been shown, notice of the mistake
was given to at least one of plaintiff's representatives one
or two days after the letter announcing acceptance.

Acceptance of an offer to sell bolting cloth, whose market
price was from two to six dollars per yard, "at 5 cents a
yard that Gale (another dealer) would charge" was held
not to entitle the acceptor to retain cloth received there-
under by paying only five cents a yard ; since, in the court's
opinion, there was an obvious mistake in omitting the word
"less."

"But," it continued, "if Moses' claim be true, that he did not accept
the offer to sell for five cents a yard less than Gale would charge
him, the minds of Butler and Moses never 'assented to the same
thing in the same sense,' and no contract was made by them for
the sale of this cloth." '

Where the owner of cattle, who had refused $163 for
them, offered soon thereafter to take $161.50, meaning, as
it afterward appeared, $261.50 it was held that the acceptor
could not demand the cattle for the smaller price.

"It is evident," said the court," "that the minds of the parties never
met upon the question of the price to be paid for the cattle, and

Mummenhoff v. Randall, 19 Ind. App. 44, 49 N. E. 40.
Citing 21 Am. & Eng. Encyc. of Law, 459.
Butler V. Moses, 43 Ohio St., 166, 1 N. E. 316.
"Harran v. Foley, 62 Wis. 584, 22 N. W. 837.

582 I EXTRATERRITORIAL CASES.

therefore there was, in fact, no sale. The pretended purchase having
been repudiated by the defendant before the cattle were, in fact,
delivered to the plaintiff, and the earnest money tendered back to
him by the defendant, the plaintiff acquired no title to the cattle,
and judgment was properly rendered against him." "

For the question in all such cases is not whether or when
there was a formal acceptance but whether the acceptor has
meanwhile changed his position, relying in good faith upon
the contract. In the case at bar much was said by plain-
tiff's witness regarding a contract by which it had under-
taken to supply a large quantity of sole leather each month.
If such a contract had been entered into after Feb. 19, the
date of the supposed acceptance, and before plaintiff was
notified that such acceptance was erroneous, a different case
might be presented. But there is no such testimony. For
aught that appears this contract with a third party had
been made before Feb. 19.

In a case ^- decided by Lord Romilly that eminent equity
jurist held that where a conveyance had not been executed
mutual mistake was not necessary to justify reformation
of the contract but that

"as it is in the power of the Court to put the parties in the same
position as if the contract had not been executed, the Court will
interfere, provided the party aggrieved comes speedily for redress."

Where a vendee sued for the non-delivery of four carloads
of matches the source of the dispute was thus stated ^"^ by
Lamar, J., later of the Federal Supreme Court:

"The price of 144 boxes, each containing 100 matches, was 80
cents; and the defendant argued from this, in connection with the
other items in the price list, that in the sale of matches the unit
is a gross, or 144 boxes, each containing 100 matches. No. 200,
'220 matches in slide box, 12 boxes in package, 12 packages in case,
making 144 boxes in 2 gross case, 1.40 per case.' No. 500, '500
matches in slide box, 12 boxes in package, 12 packages or 144 boxes
in 5 gross case, 3.25 per case.' The defendant's brokers, on these
quotations, procured an order from the plaintiff for cases of No.

" Citing 1 Wharton, Contracts, 4.
*' Harris v. Pepperell, L. R. 5 Eq. Cas., 1 (1867).
" Singer v. Grand Rapids Match Co., 117 Ga., 86, 43 S. E., 755.
Cf. Shelton v. Ellis, 70 Ga., 297.

S'HAI TANNERY CO. V. TRADING CO., JUNE 2 4, 1916, 583

200 and cases of No. 500. If the plaintiff's construction of the
quotation is correct, it would have required about five cars to con-
tain the goods bought; and only one if the defendant is correct.
As to No. 200 an ambiguity may arise from the double use of the
word 'case.' It appears that 144 boxes were to be packed in a case,
and two of these cases were then to be packed in a still larger case,
and it is this large case which the plaintiff says was quoted at $1.40.
For the reasons hereafter to be given, we think that the real subject-
matter of the quotation was the small case, containing 144 boxes."

In upholding a judgment of non-suit the court said :

"If the plaintiff had actually received the five car loads of matches,
believing in good faith that the seller understood the contract in
the same way as the buyer, and if thereafter the latter had changed
his position^ — -had sold the goods at a price based on his understand-
ing of the quotations, and otherwise acted upon what he thought
was the mutual understanding of the parties — and if thereafter the
seller had brought suit for several times the amount for which the
buyer supposed he was liable, the seller would be held to his con-
tract. Even if the contract was ambiguous, the rule would be ap-
plied that an instrument is to be construed most strongly against
the one who prepares it. Civ. Code, sec. 3675 (4). But that is not
this case. The seller has not parted with the goods, and the buyer
has not paid the purchase money. It is true that he claims that
he had taken orders to deliver matches out of this lot, and that he
would have made a profit, had the matches been delivered, and thus
resold. But the loss of profits anticipated is not sufficient to prevent
the application of the rule by which this case is governed."

Passing to a discussion of the fundamental question be-
fore us the court employs language which appears very-
pertinent here:

"But the plaintiff insists that the broker wrote to the defendants,
inquiring as to whether they had not made a mistake in the quota-
tions, and received a reply that the quotations were correct. This
was true. The quotations were correct. The mistake arose from the
construction placed thereon by the defendant differing so radically
from that of the plaintiff. Under the limitations previously stated,
the defendant will not be visited vdth a penalty because of the mis-
construction thereof by the opposite party. A slip of the pen or a
slip of the tongue ought not to be treated as deliberate contract,
unless the other party has acted thereon to his injury. There is
nothing in the principle recognized by any of the authorities cited
which in any way tends to relieve parties from their contracts, or
to let them out of hard bargains. When such contracts have been
made, the courts are called on to enforce them. But the question in

584 I EXTRATERRITORIAL CASES.

this and similar cases is, has there been a contract made? Did the
minds of the parties meet? * * *

The requirement of Civ. Code, sec. 3526, that there must be an
identification of the thing sold, and an agreement as to the price,
is but an expression of the general rule of law, and another way
of saying that the minds of the parties must meet, both as to the
price and as to the thing bargained for, which may include an iden-
tification of the quantity sold. The evidence here clearly indicates
that the minds of the buyer and the seller did not meet. The dif-
ference in the quantity is so great, and the result, if- plaintiff's con-
tention is sustained, would work such a manifest hardship on the
seller, and such an undue advantage to the buyer, that damages
will not be allowed for the breach of such an alleged contract."

Thus far we have considered the decisions of English and
American State Courts. But the doctrine there announced
is equally well recognized in the Federal tribunals whose
jurisprudence more directly governs here. As early as
1846 the principle was applied '^ under that system to a
transaction in which a quantity of shingles was delivered
at a price which was undisputed. But the plaintiff claimed
to have sold them by the bunch and the defendant to have
purchased by the thousand. The Court charged that

"the parties in this case relied upon a special contract made at the
time of the delivery of the shingles; and if one was then actually
made in fact and in law, the amount recovered must conform to it.
But in order to constitute such a contract and make it binding on
the parties, the minds of both must have assented to the same terms.
If they did not, there was no aggregatio mentium, no agreement or
understanding of both to one sum or stipulation. If one agreed to
$3.25 per bunch, and the other to $3.25 per thousand, only half as
high a price, there was in truth no contract, as it takes two, we all
know, both in fact and in law, to make a contract."

Where a contractor sought by a literal interpretation
to hold the government for an unreasonable amount the
Supreme Court applied the rule that

"where parties intend to contract by parol, and there is a mis-
understanding as to the terms, neither is bound, because their minds
have not met." "^

In a hard fought case which proceeded all the way from
the Circuit Court, thru the Court of Appeals to the Supreme

" Greene v. Bateman, 2 Woodb. & M., 359, 10 Fed. Cas., 1126.
" Scott V. United States, 12 Wall., 443, 20 L, ed., 438. Cf. Hume
v. United States, 132 U. S., 406, 33 L. ed., 393.

S'HAI TANNERY CO. V. TRADING CO., JUNE 24, 1916. 585

Court,^'' a corporate contractor had submitted a bid for
certain municipal work, of considerable magnitude, speci-
fying the price of one portion as fifty cents per cubic yard
when, as it afterward claimed, tho this was disputed, it
meant to specify seventy cents. The municipal board voted
to accept the bid as presented and, after being advised of
the contractor's mistake, invoked a clause in the city charter
providing that no bid should be withdrawn or canceled
until the board should have let the contract. Thereupon
the contractor sought relief in the Federal Circuit Court,
the judge of which in granting "a decree rescinding its
proposals and enjoining the defendants as prayed for in
the bill" said (and its language was later expressly ap-
proved by the Supreme Court) :

"The bill proceeds upon the theory that the bid upon which the
defendants acted was not complainant's bid ; that the complainant was
no more responsible for it than if it had been the result of agraphia
01 the mistake of a copyist or printer. In other words, that the
proposal read at the meeting of the board was one which the com-
plainant never intended to make and that the minds of the parties
never met upon a contract based thereon. If the defendants are
correct in their contention there is absolutely no redress for a bidder
for public work, no matter how aggravated or palpable his blunder.
The moment his proposal is opened by the executive board he is
held as in a grasp of steel. There is no remedy, no escape. If,
thru an error of his clerk, he has agreed to do work worth
$1,000,000 for $10, he must be held to the strict letter of his con-
tract while equity stands by with folded hands and sees him driven
into bankruptcy. The defendants' position admits of no compromise,
no exception, no middle ground.

It is argued that the mistakes were not mutual and, therefore, that
there is no ground of equitable cognizance. It should be remembered,
however, that the complainant does not seek to reform a contract but
to be relieved from an unconscionable bid by its rescission or cancela-
tion. ^ Equity cannot reform an agreement unless both parties were
mistaken, but it can interfere to prevent the enforcement of an
unjust agreement induced by the mistake of one." "

"MofFett V. City of Rochester, 178 U. S. 373, 44 L. ed. 1108; 91
Fed. Rep. 28; 82 Fed. Rep. 255.

"Moffett V. City of Rochester, 82 Fed. 256, citing 15 Am. &
Eng. Enc. Law, p. 647; Crowe v. Lewin, 95 N. Y. 423; Smith v.
Mackin, 4 Lans. 41; Bradford v. Bank, 13 How (U. S.) 57, 68,
14 L. ed. 49; Hartford, etc., Co. v. Jackson, 24 Conn. 514; Snell v.
Insurance Co., 98 U. S. 85, 25 L. ed. 52.

586 I EXTRATERRITORIAL CASES.

The Court of Appeals'^ took a different view; but its
judgment was reversed and that of the Circuit Court af-
firmed in an unanimous opinion by '" the Supreme Court.

Some of these cases, indeed, suggest bad faith on the
acceptor's part; but the rule appears to be no different
where both parties act in equal good faith.

In a case ^'^ tried before the writer in another jurisdiction
a memorandum of sale designated defendant as purchaser
when in fact it intended to be the vendor as did also plain-
tiff. Both parties appeared to be acting in good faith;
but it was held that no contract resulted.

"As the trial court well says," observed the Supreme Court, 'the
minds of the parties never met upon a contract of sale by defendant
to plaintiff,' or, in other words, there was no mutual consent by the
parties to the alleged contract, and, therefore, there was no contract,
and the trial court properly declined to allow damages for an alleged
breach." '*

II.

But it is urged that the mistake in this case was that
of defendant's agent; that it was within the scope of his
authority to accept the offer ; and that he did so and there-
by bound the defendant. But the letter of February 19 was
not in form an acceptance by the agent; it was merely a
statement by him that defendant had accepted and this it
soon afterward appeared was incorrect. In this particular
the case is stronger than most of those just reviewed for
there the acceptance or offer, as the case might be, was
made as a rule by the principal and his ground of relief
was that he was mistaken.

In the case before us the mistake seems, primarily, to
have been that of the cable company and the rule in Eng-
land, as well as the better doctrine in America, is that the
sender cannot be held liable for the mistakes of such a
transmitter. In another leading English case -- defendant

" 91 Fed. Rep., 28.

" 178 U. S., 373, 44 L. ed., 1108.

"" Madrigal v. Stevenson, 15 Philippine, 38.

=' Citing Civil Code, art. 1261; 9 Cyc. 245.

=^Henkel v. Paper, L. R. 6 Exch. 7, 40 L. J. (Part 2) 15.

S'HAI TANNERY CO. V. TRADING CO., JUNE 24, 1916. 587

wrote plaintiffs inquiring upon what terms they could
furnish him fifty rifles and upon receiving their reply
ordered three rifles. The telegraph operator by mistake
substituted "the" for "three" and plaintiffs forwarded the
entire fifty. As defendant refused payment for more than
three, plaintiffs brought an action at the trial of which the
Judge directed a nonsuit. Chitty, for plaintiffs, moved for
a rule, contending:

"The defendant might have had the message repeated, which would
have obviated all possibility of error. The telegraph clerk was a
general agent, on the principle that if a person employs an agent
in the general course of the agent's business, he is bound by what
the agent does, though not according to his instructions, inasmuch
as third persons in such cases are naturally led to presume the
existence of authority." "^

But the court per Kelly, C. B., said:

"I think there should be no rule. The telegraph authorities were
only the defendant's agents to transmit the message actually given
for transmission."

This has now become the settled English doctrine -^ and
prevails in Scotland -■' as well.

The best considered American decisions apply the same
rule. In a Tennessee case -'' complainants wrote a message
to a customer quoting meat prices at $6.60 per cwt. By
mistake the message as delivered read "six thirty." Com-
plainants then brought suit against the telegraph company
for the aggregate difference in price, on the theory that a
contract had resulted with their customer which bound
them to deliver at the lower price. But the court said:

"In our opinion this contention cannot be maintained, either upon
principle or authority. The minds of the party who sends a mes-
sage in certain words and the party who receives the message in
entirely different words have never met. Neither can therefore be
bound the one to the other, unless the mere fact of employment of
the telegraph company, as the instrument of communication, makes

''Citing Chitty on Contracts (7th ed.), 197.

'" Playfor v. Telegraph Co., Allen, Tel. Cases, 437.

"'Verdin v. Robertson, 10 Ct. Sess., Cas. (3d Ser.), 35.

-' Pepper v. Western Union Tel. Co., 87 Tenn., 554, 11 S. W., 783.

588 I EXTRATERRITORIAL CASES.

the latter the agent of the sender. Upon what principle can it be
said such an agency arises?"

It then proceeds to show why the theory of such agency
is unsound.

This was followed in a well reasoned Mississippi case -'
where a message offering to sell cotton at 8i- cents per
pound was delivered reading 8-5/16, and no contract was
found tho the offer was accepted.

The same conclusion was reached in a California case -*
where a message quoting oranges at $2.60 per box was
changed in transmission so as to read $1.60 and an accept-
ance by the recipient was held not to create a contract.

We have, indeed, found two American decisions -° dif-
fering from those just reviewed. But they are not only
in the minority; their reasoning seems to us inconsistent
with the fundamental requirement of a meeting of minds.
Besides they are chiefly concerned with the liability of tel-
egraph companies which is not involved here. But in this
country, where so much business is transacted by coded
cablegrams, it would seem especially dangerous to adopt
a rule which would bind the sender for any mistakes which
the cable company might make.

It may be urged that defendant's agents recognized the
existence of a contract even after the mistake was reported,
but we think the most tha,t can be claimed from the cor-
respondence is a display of anxiety to placate plaintiff and
save it from loss. They express a willingness to procure
quebracho at the lowest available price but we are unable
to find where they undertook, or considered themselves

" Shingleur v. Western Union Tel. Co., 72 Miss. 1030, 18 So. 425.

=' Germain Fruit Co. v. Western Union Tel. Co., 137 Cal. 598, 70
Pac, 658.

-"Western Union Telegraph Co. v. Shotter, 71 Ga. 760; Ayer v.
Western Union Telegraph Co., 79 Me., 493, 10 Atl. 495. The former
is not only criticised in Pepper v. Western Union Telegraph Co.,
Tenn. 554, 11 S. W. 783, Shingleur v. Western Union Telegraph
Co. 72 Miss. 1030, 18 So. 425 and by Gray in his "Communication
by Telegraph;" it must be read in the light of Singer v. Grand
Rapids Match Co., 117 Ga. 86, 43 S. E. 755, which appears incon-
sistent with its doctrine.

RAIGORODETZKAIA V. ARNOLD, JULY 2, 1916. 589

bound to undertake, to supply it at $135 per ton. In its
first letter on the subject (March 11, Ex. B) they quoted
"an unfirm offer" of $160 per ton but nothing lower.

It being obvious that the minds of the parties never met
on the alleged sale, and there being no evidence that plain-
tiff's position was changed to its prejudice after notice that
its offer had been accepted and before said notice was
corrected, we have no alternative, under the decided weight
of authority, but to find for defendant.

It is accordingly considered and adjudged that plaintiff
take nothing by its complaint and that defendant recover
its costs.

IN THE UNITED STATES COURT FOR CHINA.

Cecile RAIGORODETZKAIA, Plaintiff and Appellee, v. H. H.
Arnold, Defendant and Appellant.

[Cause No. 512; filed July 2, 1916.]

SYLLABUS.
(By the Court.)

1. HIGHWAYS: AUTOMOBILES: PEDESTRIANS. The rights of motorists

and pedestrians on public streets are equal and each must keep
a lookout for the other.

2. Id. : Id. : Id. But the pedestrian is not required to observe the rule

of "look and listen" as if he were on a railroad right of way.

3. Id. : Id.: Signals. And he has a right to expect that a motorist

will obey a policeman's signal to stop.

4. Id.: Id.: Id.: Care. The motorist must employ special care at cross-

ings and corners.

5. Id. : Id. : Id. : Damages. In the absence of malice or gi*oss negli-

gence only actual or compensatory damages will be allowed.

APPEAL from the Consular Court for the district of
Shanghai.

Messrs. Fleming & Da vies, by Mr. Da vies, for appellant.
Joseph W. Rice, Esq., for appellee.

LOBINGIER, J.:

Appellant, who was defendant in the court below, brings
this appeal from a judgment there rendered against him

590 I EXTRATERRITORIAL CASES.

for damages resulting from injuries to appellee, a Russian
subject, in consequence of a collision with defendant's auto-
mobile at the junction of Minghong Road and Broadway
in Hongkew (Shanghai). Appellee was in the act of cross-
ing, and the automobile was emerging from, the former
street into the latter along which appellee was passing.
The first assignment in the petition filed in this court is

"Error in finding that the Chinese constable on duty at the corner
of Minghong Road and Broadway, Shanghai, at the time of the ac-
cident, signalled the motor car driven by defendant to stop as it
approached said corner".

The finding here assailed is based upon the testimony
of the constable himself which cannot be impeached by
appellant because the constable was his witness.^ The
latter says (p. 23) "I used my arm to stop the car."

It is true that another portion of his testimony (which,
of course, was given in Chinese) was translated by the
interpreter (who was not an official one) :

"I held my arm up according to police regulations. I signalled to
the car so that the car must go slowly." (p. 20.)

But the trial judge, who also understands Chinese, adds
with his initials "man-man should be to stop." And later
where the witness is made to say "I held up my arm simply
to signal to the car so that the car must go sloiuly"
(p. 21) the trial judge again adds in parenthesis before
his initials ("Stop").

From this we conclude that the word actually used by
the witness was "man-man" which is the expression gen-
erally used in Shanghai when ordering chauffeurs and
mafus to stop.

Moreover the constable further testifies (p. 20) that he
did not "signal the car to come thru" and no one claims
that he did. But this testimony is inconsistent with the
idea that he merely signalled appellant to reduce his speed
and allowed him to continue.

It is also true that the police report of the accident
(Ex. 2) fails to mention the signal. But in the first place
that document is incompetent,- being the statement of a

' Cyc, XL, 2559. ' Wigmore, Ev., Vol. II, 43.

RAIGORODETZKAIA V. ARNOLD, JULY 2, 1916. 591

third person (other than the constable) not sworn nor sub-
ject to cross-examination; and, in the second place, it does
not purport to be a complete statement of all that occurred.
Besides, other witnesses, including appellant himself (pp.
14-18), say that the policeman did signal in the manner
described by him and the only question is what he meant
by the signal. We think his testimony shows that he
meant "stop" and the first assignment of error must, there-
fore, be overruled.

The second assignment is "error in finding that Ming-
hong Road is unfrequented." It may be that the record
contains no testimony to that effect but the doctrine of
judicial notice might supply the lack of it. In any event
the finding is merely incidental and not essential to the
conclusion reached.

The assignment most urged in argument was the third:

"Error in finding that defendant was guilty of negligence in fail-
ing to obey the signal of the Chinese constable to stop."

This must be considered in connection with the first as-
signment just reviewed. No one — -not even appellant —
claims that the car did stop at any time before the collision.
And this, we think, is the crux of the case. For the mo-
torist must keep a proper lookout and be ready to stop his
car to avoid an accident.'

Moreover in Shanghai policemen are stationed at the
principal street intersections for the primary purpose of
warning vehicle drivers of possible danger. To hold that
one may disregard such warning and still be free from
negligence would be flying in the face of precedent.

The fourth assignment is

"Error in finding that defendant was guilty of negligence in fail-
ing to blow his horn immediately prior to turning the corner at
Minghong Road and Broadway."

No one claims that the horn was so sounded. Appellant
himself says only that he sounded it "until I was within
fifty feet of Broadway and until the signal of the police-

'Kessler v. Washburn, 157 111. App., 532; Liebrecht v. Crandall,
110 Minn., 454, 126 N. W., 69; Grier v. Samuel, 27 Del. 106, 86 Atl.,
209.

592 I EXTRATERRITORIAL CASES.

man was given" (p. 14. Cf. pp. 15, 17). A motorist is
required to be especially careful in turning corners * and
we cannot say that the trial court's finding on this point
is contrary to law. But if it were otherwise this would
not necessarily vitiate the judgment which would have to
be sustained if there were no other negligence than that
of disregarding the signal.
The fifth assignment is

"Error in finding that plaintiff was not guilty of contributory-
negligence so as to preclude her from recovering damages."

This contention is based mainly upon appellee's testi-
mony (pp. 8, 9) that when she came to the corner she
"looked around and did not hear any sound" nor "see a
motor car" (the Chinese tailor also testified (p. 12) that
he heard no horn) ; and upon the policeman's testimony
(pp. 21, 22) that when he first saw appellee "she was
walking down from the foot path to the street * * *
several steps from him," and "was looking up in the air"
and that he "told her to cross the street quickly but that
she did not pay any attention".

We are cited to some nisi prius decisions '' to the eff'ect
that a pedestrian who looks but fails to see an automobile
which collides with him immediately afterward is guilty
of contributory negligence. The reports of these cases are
not all accessible but it is evident that their facts do not
parallel the situation here. For the plaintiff had a right
to rely upon the policeman (who told her, as we have
seen, to go ahead) and to expect that defendant's and all
other approaching vehicles would obey the signal to stop."

Nor is it the duty of a pedestrian along a public street

* Buscher v. N. Y. Transp. Co., 106 App. Div. 493, 94 N. Y. Suppl.
798. Cf. 28 Cyc. 28, 29.

= Larner v. N. Y. Transp. Co., 133 N. Y. Suppl. 743; O'Reilly v.
Davis, 136 App. Div. 386, 120 N. Y. Suppl. 883. Hannigan v.
Wright, 5 Pennewell (Del.) 537, 63 Atl. 234, was merely a charge
to the jury which on the whole is quite consistent with the conclu-
sions reached here.

"Hayward v. N. J. St. Ry. Co., N. J., 65 Atl. 737, 8 L. R. A. (N.
S.) 1062; Kathmeyer v. Mehl, N. J., 60 Atl. 40; Benoit v. Miller, (R.
I.), 67 Atl. 87; Marsh v. Boyden, 33 R. I. 519, 82 Atl. 393.

RAIGORODETZKAIA V. ARNOLD, JULY 2, 1916. 593

to observe the rule of "look and listen" as if he were on a
railroad's right of wayJ

"There is no imperative rule of law," says the Massachusetts
court,' "requiring a pedestrian, when lawfully using the public ways,
to be continuously looking or listening to ascertain if auto cars are
approaching, under the penalty that, upon failing to do so, if he is
injured, his negligence must be conclusively presumed."

The rights of pedestrians on public streets are equal
to those of motorists ^ and the latter must be on
the lookout for the former. In this case while defend-
ant says that he did not see plaintiff till just before the
collision the policeman and the Chinese tailor (p. 12) had
seen her while she was crossing the street. Plaintiff's
credibility was questioned in argument but the main facta
above reviewed do not depend on her testimony; they are
established by other witnesses, and chiefly those called by
defendant.

In the Federal Courts the burden rests upon a defendant
to prove contributory negligence on the part of plaintiff ^°
and we do not think that burden has been met ^^ in the
case at bar.

'Alabama. Barbour v. Shebor, 107 Ala. 304, 58 So., 276.

Kansas. Williams v. Benson, 87 Kan., 421, 124 Pac, 531.

Louisiana. Burvant v. Wolfe, 126 La., 787, 52 So., 1025, 29 L. R.
A. (N. S.), 677.

Massachusetts. Lynch v. Fisk Rubber Co., 209 Mass. 16, 95 N. E.,
400.

Michigan. Gerhard v. Ford Motor Co., 155 Mich. 618, 119 N. W.,
904, 20 L. R. A. (N. S.), 233.

Missouri. Bongner v. Ziegenheim, 165 Mo. App., 328, 147 S. W.
182.

Washington. Lampe v. Jacobsen, 46 Wash. 533, 90 Pac, 654.

Minor v. Stevens, 65 Wash., 423, 118 Pac, 313, 42 L. R. A. (N. S.),
1178, cited by appellant went off on a question of practice and there
is besides a strong dissenting opinion by Dunbar, C. J.

West Virginia. Deputy v. Kimmell, W. Va., 89 S. E., 919, 51 L.
R. A. (N. S.), 989.

'Hennessey v. Taylor, 189 Mass. 583, 3 L. R. A. (N. S.), 345, 76
N. E. 224.

° Apperson v. Lazro, Ind. App., 88 N. E., 99; Hannigan v. Wright.
5 Pennewell (Del.), 537, 63 Atl., 234.

'° Star Garage Co., Ltd., v. Honigsberg & Co., ante, p. 556.

"Smith v. Coon, 89 Neb. 1911, 776, 132 N. W., 555.

14008 O. W. 38

594 I EXTRATERRITORIAL CASES.

The sixth assignment is

"Error in finding that defendant's negligence in driving the motor
car in question was the proximate cause of plaintiff's injury and dam-
ages sustained."

The term "proximate cause" opens up an extensive sub-
ject in which there is much conflict and uncertainty but
the doctrine has been declared inapplicable where the neg-
ligence complained of "was operating at the instant of the
accident." " Here it is certain that appellant's disregard
of the signal was so operating. It is obvious that if ap-
pellant had stopped his car when said signal was given
no collision would have occurred, and we have been cited
to no authority holding that in such case the negligence
is not the proximate cause. ^'

The seventh and last assignment reads

"Error in not entering judgment in favor of defendant and dis-
missing the petition of plaintiff."

But this is merely a summary of the preceding assign-
ments. Unless they are well taken a judgment had to be
rendered for appellee.

After a search of the record on that point, however, we
are forced to the conclusion that the amount awarded ap-
pellee ($250) is more than the evidence will justify. There
is no proof of permanent injury. Appellee's physician
(Dr. Street) states (p. 3) that she was in the hospital
three or four days but not that she was disabled from
work for any considerable time thereafter. Her hospital
bill was $2 per day and her physician's bill Tls. 15.

She testifies (p. 6) that the damage to her clothing and
glasses would be about $100; but this is evidently a mere
guess as no cost prices are given. Her claim of earning
as a dressmaker $200 and $300 per week cannot be ac-
cepted in view of her Consul General's certificate, prepared
about three weeks after the accident, with a view to obtain-
ing a remission of court fees, that she was without prop-
erty and that an execution against her had been returned
unsatisfied.

" Huber v. Jackson & Sharp Co., 1 Marv. (Del.) 374, 41 Atl. 92.
"See Cyc. XXIX, 489 et seq.

IN RE BASSITY'S ESTATE, JULY 3, 1916. 595

Nor is this a case for punitive or exemplary damages
which are allowed only in case of gross negligence or
malice.^^ There is no suggestion of malice on defendant's
part and his negligence may after all have been due to
a misunderstanding of the signal. The most that can be
awarded here are actual or compensatory damages, i. e.,
those which will repair the injury. "The measure of
damages is governed, not by a fanciful price, but by the
actual loss sustained." ^^

Under this rule we feel that the judgment of the Con-
sular Court should be reduced by $100 and as so modified
it is affirmed. Because of such necessary modification the
costs in this court must be adjudged against appellee.

IN THE UNITED STATES COURT FOR CHINA.
In re Matthew A. Bassity's Estate.

[Cause No. 420; filed July 3, 1916.]

SYLLABUS.
(By the Court.)

1. ADMINISTRATION OF ESTATES: CLAIMS: VERIFICATION. Under the

law in force in this extraterritorial jurisdiction claims against
a decedent's estate should be verified by the claimant's oath.

2. Id. : Id. : Proof. A claim rejected by the personal representative

cannot be allowed by the court without other proof than claim-
ant's testimony.

3. Id. : Id. : Id. In fact such testimony is generally inadmissible.

4. Id. : Distribution. Where deceased left only a widow and three

minor children each of the latter is entitled to two ninths of the
personalty but it must be held for them in trust by a duly
appointed guardian.

F. E. Hinckley, Esq., for the administrators.
Messrs. Hanson, McNeill, Jones & Wright, by Mr. Wright,
for claimant Harvie.

" Cyc. Xlll, 112.

"Id. 136. Cf.

Iowa. Lord v. Wood, 120 la. 303, 94 N. W. 842; Wimer v. All-
baugh, 78 la. 79, 42 N. W. 587, 16 Am. St. Rep. 422.

New York. Reid v. Terwilliger, 116 N. Y. 530 22 N. E. 1091.

Texas. International etc. R. Co., v. Nicholson, 61 Tex. 550; Field
v. Munster, 11 Tex. Civ. App. 341 32 S. W. 417.

596 I EXTRATERRITORIAL CASES.

LOBINGIER, J.:

This cause comes on for hearing upon the final account
of the co-administrators, the approval of which is contested
by William Harvie, Esq., because of their failure to allow
a claim of his. Regarding this the administrators in a
previous report dated Jan. 14, 1916, state that

"they have duly requested William Harvie thru his counsel to
produce evidence in support of his claim against the Estate, and
they have been advised by their Counsel that what has been produced
as evidence is not of a nature, unsupported by other evidence, to re-
quire them to recognize the claim as valid in any part thereof."

The first question is whether the court should overrule
the action of the administrators in this regard. The Act
of Congress of June 6, 1900, provides:

"Every claim presented to the executor or administrator shall be
verified by the affidavit of the claimant or some one on his behalf
who has personal knowledge of the facts, to the effect that the amount
claimed is justly due, that no payments have been made thereon, ex-
cept as stated, and that there is no just counterclaim to the same,
to the knowledge of the affiant."^

This provision, like many others in the same chapter,
appears to have been taken from the statutes of Oregon
and the Supreme Court of that state has treated it as
mandatory even to the extent of rejecting a claim which
was verified not by the claimant but by his agent. -

The parent statute appears to have been that of New
York which was construed in an early case '■' as follows :

"The object of requiring the affidavit of the creditor in such cases
is not to prove the existence of the debt, as it is not evidence for that
purpose. But it is to prevent the exhibition of fictitious claims against
the estate of the decedent, which have been discharged by him
in his lifetime, and also to prevent the allowance of claims against
which there existed a legal offset, knovni only to the party present-
ing such claim, and which those who are interested in the estate of
the decedent may be unable to establish by legal proof."

The claim before us was not only never verified by the
claimant but it was not even signed by him. In fact its

' 31 U. S. Stats, at Large, Sess. I, Ch. 786, Tit. II, sec. 822.

- Zachary v. Chambeers, 1 Or. .321.

'Williams v. Purdy, 6 Paige Ch. (N. Y.) 166.

IN RE BASSITY'S ESTATE, JULY 3, 1916. 597

presentation has been most informal being entirely by let-
ters to the administrators or their attorney, signed only
by the claimant's lawyers, and describing the claim only
in the most general terms. Surely this was not a com-
pliance with the statute.

It is true that claims without such verification have
been allowed by this court. But that was when they were
uncontested. Where, as here, the question is raised there
is nothing to do but apply the statute, especially since
the result affects vitally the patrimony, none too large at
best, of a widow and orphans.

II.

If, however, the claim had been presented in proper form
the question would still remain whether this court should
set aside the administrators' finding that the claim had
not been sufficiently proved. The evidence offered by the
claimant consists of his own testimony, four checks pay-
able to the deceased, the "stub" or counterfoil of a check
book with an entry in the claimant's handwriting, a car-
bon copy of a letter (Ex. M) purporting to have been
written by him, and a small memorandum (Ex. L) contain-
ing some figures. There is also some slight corroborating
testimony by Messrs. Pickering, MacGregor and Parker.
Some letters from other parties giving their impressions
on the subject were offered but of course are not evidence,
the writer not being under oath nor subject to cross^
examination.

The checks indicate payments to the deceased aggregating
Tls. 4,943.67 altho it was unfortunately not shown that the
indorsements were in the handwriting of the deceased.
But as to the purpose of the payments and whether they
were repaid or not we are practically restricted to claim-
ant's testimony which is that they were to enable the
deceased to purchase certain shares the profits of which
were to be divided between them. The carbon copy of
the letter (Ex. M), addressed to the Shanghai Life In-
surance Company, mentions two blocks of shares (the
ones chiefly in dispute) "which you hold for me under

598 I EXTRATERRITORIAL CASES.

mortgage" and requests that his wife's instructions be
followed "with regard to disposal of same."

There is, indeed, a postscript, addressed, apparently, to
his wife and reading "Please take any instructions given
you by Mr. Harvie in connection with above Shares and
Debentures". Mrs. Bassity's explanation of this is as
follows :

"My husband said that I was not in good enough health to attend
to them, and that Mr. Harvie would watch the share market for the
family * * * and simply told me to pay the money into the bank
to my account."

This is certainly not consistent with the claim that the
shares belonged to some one else than the deceased. Mr.
Pickering says that he heard the deceased and claimant
talk about shares, that the latter financed a coal deal for
the former and that Mrs. Bassity stated in effect that
she would recognize the claim. The latter states that
what she told him was that she would prefer to adjust
the matter without litigation.

Mr. Parker mentioned a letter which he received from
the deceased regarding a mortgage of certain shares to
the Shanghai Life Insurance Company in which he thought
claimant's name was mentioned as having a profit sharing
arrangement with deceased. But on submitting to him
this same Exhibit "M" he recognized it as the only letter
received by him and it says nothing about such an ar-
rangement.

It is clear, therefore, that if the administrators are to
be overruled and the claim allowed, it must be upon the
testimony of the claimant. Without that testimony the
checks mean little and the memorandum (Ex. L) is in no
way connected with deceased. For here is no contract, —
no memorandum, even, signed by the deceased or show-
ing that he owed claimant anything.

But in 1900 Congress declared that

"No claim which shall have been rejected by the executor or ad-
ministrator, as aforesaid, shall be allowed by any court, judge, referee,
or jury, except upon some competent or satisfactory evidence other
than the testimony of the claimant." *

' 31 U. S. Stats, at Large. Sess. I, Ch. 786, Tit. II, sec. 823.

IN RE BASSITY'S ESTATE, JULY 3, 1916. 599

Again in 1901 it was provided that, with certain excep-
tions not found in this case,

"If one of the original parties to a transaction or contract has,
since the date thereof, died or become insane or otherwise inca-
pable of testifying in relation thereto, the other partly thereto shall
not be allowed to testify as to any transaction with or declaration
or admission of the said deceased or otherwise incapable party in
any action between said other party or any person claiming under
him and the executors, administrators, trustees, heirs, devisees, as-
sig-nees, committee, or other person legally representing the deceased
or otherwise incapable party unless," etc."

In view of these positive enactments we have no alter-
native but to exclude claimant's testimony and, as it is
not, and in our judgment could not successfully be, argued
that the remaining evidence is sufficient, we find no ground
for disturbing the action of the administrators in refusing
to allow the claim.

III.

It appears from the petition for Letters of Administra-
tion that deceased died intestate and left, besides his
widow, as his only relatives, three children, the eldest born
in 1909.

In such a case each of the children is entitled to two-
ninths of the estate besides the widow's one-third.*^ But
as the children are minors their shares cannot be paid
to them directly but must be held in trust for them by a
guardian.

The final account shows that the administrators have
already advanced the widow, without authority from the

' 31 U. S. Stats, at Large, Sess. II, Ch. 854, sec. 1064. Cf. U. S.
Rev. Stats., sec. 858.

"In almost every jurisdiction in the United States, by statutes
enacted in connection with or shortly after the statute removing the
general disqualification by interest, an exception was carved out of
the old disqualification. * * * fhe scope of this modern rule
excludes the testimony of the survivor of a transaction with a de-
cedent, when offered against the latter 's estate." I Wigmore on Ev.,
sec. 578.

*Act of Congress of March 3, 1901, 31 U. S. Stats, at Large, Ch.
854, sec. 375. See In re Thacher's Will, ante, p. 524; In re Noyes'
Estate, ante, p. 538.

600 I EXTRATERRITORIAL CASES.

Court, the sum of Tls. 806.84. This was irregular but
will be approved on condition that the same amount be de-
ducted from the widow's portion of one-third now about
to be assigned to her.

It is therefore considered and adjudged:

1. That all claims against the said estate, not already paid, be
and the same are hereby barred.

2. That the final account of the administrators be approved, sub-
ject to the condition named above.

3. That the said administrators now proceed to distribute the
money and personal property belonging to said estate by delivering
one-third thereof to the widow, less the sum of Tls. 806.84, as above
provided, and the balance to the guardian of said minor children, to
be appointed by this Court upon a proper showing and application
for that purpose; said guardian to hold the same in trust for s^id
minor children in equal shares.

4. That upon depositing with the clerk of this court proper re-
ceipts evidencing such distribution the administrators shall stand
discharged.

Leonard Everett, Plaintiff, v. Swayne & Hoyt, Incor-
porated, Defendant.
[Cause No. 507.]
I. ON DEMURRER TO THE JURISDICTION.
[Filed July 17, 1916.]

SYLLABUS.

(By the Court.)

COURTS: Jurisdiction of American Courts in China over the subject
matter is not dependent upon the residence of the parties.

Messrs. Jernigan & Fessenden, by Mr. Fessenden, for
the demurrer.

Messrs. Fleming & Davies, by Mr. Fleming, contra.

LOBINGIER, J.:

The defendant demurs to a petition alleging that it is
a corporation organized under the laws of California with
its principal place of business at San Francisco; that Jar-
dine, Matheson & Co., Ltd., a British corporation, were
and are its agents at Shanghai ; and that in May, last, the
defendant, thru said agents, wrongfully refused to permit
plaintiff to send freight on one of its vessels unless

EVERETT V. SWAYNE & HOYT, JULY 17, 1916. 601

such freight "should be passed by the British Consul at
Shanghai."

The demurrer is based

"on the ground that it appears upon the face of the petition that
the Court has not jurisdiction of the person of the defendant in that
it appears from said petition that defendant is a corporation or-
ganized and existing under the laws of the State of California,
United States of America, and having its principal offices and place
of business at San Francisco, in said State of California, and it
does not appear from said petition that said defendant has any
office, branch, place of business or property in China, or any official,
agent or representative residing or being in China over whom this
Court has jurisdiction."

On first reading the above it appeared that the defendant
sought to raise a question of service; but defendant's
counsel states that "the objection to the jurisdiction is
not based upon the ground of deficient or irregular service
of process."

Moreover, according to most of the authorities,^ at least,
the demurrer itself would constitute a general appearance,
waiving any question of service.

Counsel for defendant, however, states the real point
sought to be reached by the demurrer as follows :

"A contract of agency was made between Swayne & Hoyt of San
Francisco and Jardine, Matheson & Co. of Shanghai whereby the
latter acted as agent for the former in loading and despatching the
steamship 'Yucatan.' The contract was made, and to be performed,
at Shanghai. It was therefore a contract made by an American
company domiciled in California with a British company which to
all intents and purposes of this action, are located in British ter-
ritory and who performed the contract in what, in so far as they
are concerned, is British territory. Both the place of making and
the place of performance of the contract are for the purposes of
this action British territory. It is therefore submitted that the
rights of the parties growing out of this agency contract should
be construed and governed by English law. For many years an
exception to the general rules of law governing the relation of
principal and agent has always been recognized in English law in
the case of an agent acting for a foreign principal.

"It has long been established in England that an agent cannot
pledge his foreign constituent's credit in the absence of express author-
ity to that effect."

'Encyc. PI. & Pr., II, 635.

^02 I EXTRATERRITORIAL CASES.

The case - cited in support of this contention does not
seem to us to go to the extent claimed even where the
action is founded upon a contract; for it merely holds that
a vendor who gives credit to an agent believing him to be
the principal, and to whom the real principal has paid,
cannot, after discovering the latter, hold him liable. It
appears to be very far removed from anything here and
while some language used in the opinion might have a bear-
ing on the present situation it could hardly be accepted
as controlling.

For the question here is not the interpretation or enforce-
ment of a contract but the determination of an American
corporation's liability for an alleged tort and we have been
cited to no authority, American or English, to the effect
that even tho, as between the parties, a contract of agency
might be construed according to foreign law, the tortious lia-
bility of the principal to third parties would likewise need
to be so construed. If defendant were doing business here
thru American agents there could be no question of its
liability for torts committed by them within the scope of
their agency. Can it be that they may evade such liability
merely by selecting British agents? Under the act of Con-
gress "the laws of the United States" are "extended over
all citizens of the United States" in China "and over all
others to the extent that the terms of the treaties respec-
tively justify or require." ^ Would it be consistent with
this language to hold that a citizen (natural or juridical)
of the United States could place himself under different
laws by employing a foreign agent?

The case ■* cited by plaintiff's counsel seems much more
analogous to that at bar than the one cited by defendant,
the sole difference being that this action is brought in an
extraterritorial jurisdiction. In view of the statutory
language just quoted we are unable to see that this fact
should require the application of a different doctrine.

Nor can we accept and apply to this court the doctrine
advanced on the unsupported opinion of a text writer

= Armstrong v. Stokes, L. R. 7 Q. B., 598; 41 L. J. Q. B., 253, 2
English Ruling Cases, 471.

" U. S. Revised Statutes, sec. 4086. See ante p. 6U.

'Barrow Steamship Co. v. Kane, 170 U. S. 100, 42 L. ed. 964.

EVERETT V. SWAYNE & HOYT, DEC. 28, 1916. gQg

with reference to the British consular courts that all parties
to litigation before them must be habitually within their
territorial jurisdiction."' Regardless of whether such a
doctrine is authorized under British legislation (and no
authorities are cited) we find no American legislation which
justifies it. On the contrary the courts of which this is
the successor were expressly

"invested with all the judicial authority necessary to execute the
provisions of such treaties, respectively, in regard to civil rights,
whether of property, or person; and they shall entertain jurisdic-
tion in matters of contract, at the port where, or nearest to which,
the contract was made, or at the port at which, or nearest to which,
it was to be executed, and in all other matters, at the port where,
or nearest to which, the cause of controversy arose, or at the port
where, or nearest to which, the damage complained of was sustained,
provided such port be one of the ports at which the United States
are represented by consuls. Such jurisdiction shall embrace all
controversies between citizens of the United States, or others, pro-
vided for by such treaties, respectively." '^

We see nothing in this, or in any legislation of Congress,
which limits the jurisdiction of the Court to parties resident
in China. On the contrary the American courts here are
expressly given jurisdiction of ''all controversies between
citizens of the United States" without reservation as to
residence. Nor does the attempt to apply a doctrine, which
confessedly is no part of the jurisprudence of the United
States, merely because an American corporation has selected
agents of another nationality, seem to us consistent with
the provisions just quoted.

The demurrer is accordingly

OVERRULED.

II. ON THE MERITS.
[Filed December 28, 1916.]

SYLLABUS.

(By the Court.)

1. COMMON CARRIERS: DUTIES: Under the Anglo- American law, it
is the duty of a common carrier to serve all applicants alike,
unconditionally and without discrimination.

Piggott, Exterritoriality, 199, 200.
U. S. Rev. Stats., sec. 4085.

604 I EXTRATERRITORIAL CASES.

2. Id. : Conditional Acceptance. Such a carrier is not justified

in refusing to accept fi-eight except on condition that the
shipper obtains a third party's consent.

3. Id. : Excuses : Sufficiency. The carrier is relieved from such

duty by the Act of God or the public enemy but not by causes
which he can remove, nor, according to the weight of author-
ity, by the acts of his own. servants.

4. Id. : Id. Nor is it a sufficient excuse for such refusal that the

carrier's agents are subjects of a foreign power which pro-
hibits trade with the applicant or his customers.

5. Id.: Measure of Damages for Refusing Freight. The applicant's

measure of damages for such refusal is reimbursement for
actual loss incurred and this includes assured profits from a
pending contract.

6. Id. : Id. : Knowledge. It is not necessary for the applicant to

prove that the carrier knew of such contract.

7. Id. : Id. : Reduction of Damages. But against such profits must

be charged any reduction which would result from shipping
the goods by another available carrier.

LOBINGIER, J.:

This is an action to recover damages from a common
carrier for its alleged wrongful refusal to accept and
transport goods. The petition avers and the answer ad-
mits that the defendant is an American corporation, and
the steamship Yucatan an American freighter which

"arrived at the port of Shanghai, China, on the 13th day of May,
1916, under charter from said owners to the said defendants for
a voyage from the port of San Francisco, California, to ports and
places in China and Japan and I'eturn to San Francisco, and for other
Pacific Coast ports of the United States. (Par. 4.)

"That the said defendants thru their said agents on the 3rd day
of May, 1916, and again on May 5, 1916, refused the plaintiff's said
application for space and offer to ship as aforesaid by the said vessel
on said voyage upon the ground that they did not have space avail-
able on said vessel, but that thereafter, to wit, on the 8th day of
May, 1916, after plaintiff had called to the attention of said agents
that they had allotted space to others applying at a date subsequent
to the time of plaintiff's said application, the said agents of the
defendants offered the plaintiff space on said vessel for said voyage
provided the freight offered by the plaintiff should be passed by the
British Consul at Shanghai and provided plaintiff did not offer more
freight (or cargo) than the space at the disposal of said agents for
the defendants. (Par. 10.)

EVERETT V. SWAYNE & HOYT, DEC. 28, 1916. 605

"That plaintiff declined to agree to the aforesaid conditional ac-
ceptance of said offer by said defendants thru their said agents in
so far as it related to the approval of the British Consul at said
Shanghai, and demanded that the defendants thru their said agents
accept said freight without said last mentioned condition. That de-
fendants thru their said agents refused to comply with said demand."
(Par. 11.)

By way of justification for this admitted refusal the
answer alleges :

"That defendant's agents Jardine, Matheson & Co. are British
subjects and as such were prohibited and prevented by British law
and Orders in Council, rules, regulations and decrees of the British
Government from dealing in any way directly or indirectly with
German subjects, or their agents, or German enemy goods. (Par. 10.)

"That plaintiff at the times mentioned in said petition was acting
as an agent for German subjects and the cargo offered to Jardine,
Matheson & Co., defendant's agents, by said plaintiff for shipment by
the said steamship Yucatan was cargo owned by and belonging to
German enemy subjects of Great Britain. (Par. 11.)

"That defendant's agents, Jardine, Matheson & Co., were prohib-
ited and prevented by the authorities of the British Government
from accepting and shipping the cargo offered by plaintiff." (Par.
12.)

Plaintiff in his replication,

"admits that defendant's agents, Jardine, Matheson & Company, were
prohibited and prevented by the authorities of the British Govern-
ment from accepting and shipping the cargo offered by plaintiff but
alleges that this was because the said authorities of the British Gov-
ernment had placed the plaintiff on what was known as the British
blacklist (the same being a list of neutrals with whom British sub-
jects were prohibited from having business dealings) or because the
said British authorities suspected that said cargo was owned by
German subjects." (Par. 3.)

Defendant having elsewhere admitted that "it was acting
as a common carrier" and its refusal to accept plaintiff's
freight being thus likewise admitted the naked legal ques-
tion is presented whether the justification offered for such
refusal is sufficient; for no testimony is produced except
that of plaintiff and some depositions in support of the
petition. The question of liability must, therefore, be deter-
mined largely upon the pleadings.

It is an ancient doctrine that

606 i EXTRATERRITORIAL CASES.

"Common carriers owe to the public the duty of carrying indif-
ferently for all who may employ them, and in the order in which the
application is made, and without discrimination as to terms." '

The doctrine comes to us directly from the common law,^
but is probably older for there was a similar one in the
civil law " which the common law may have borrowed ^° and,
each applies equally to carriers by land or, such as defend-
ant, by w^ater.^^

Subject to the exceptions presently to be noted this duty
is imperative. It cannot be evaded nor, on the whole,
limited by contract.^- Even where the commodity offered
for shipment is under a general legal ban (as intoxicating
liquor) the carrier cannot refuse to transport it if the par-
ticular consignee is not barred from receiving it.^^

The grounds which will justify a refusal to perform the
duty are few. Those usually enumerated in the books are,
in the quaint language of the early common law, the "Act
of God" (a catastrophe not due to human agency) '* or of the

•6 Cyc. 372. Cf. 10 C. J., 66, and Covington Stock Yards Co. v.
Keith, 139 U. S. 128, 35 L. ed. 73; Toledo etc. R. Co. v. Wren, 78
Ohio 137, 84 N. E. 785.

* "The early law as to common carriers is thus given in a case of
the date of 1683: 'Action on the case, for that whereas defendant is
a common carrier from London to Lymington et abinde retrauum,
and setting it forth as the custom of England, that he is bound to
carry goods, and that the plaintiff brought him such a pack, he re-
fused to carry them tho offered his hire. And held by Jefferies, C.
J., that the action is maintainable, as well as it is against an inn-
keeper for refusing a guest, or a smith on the road who refuses to
shoe a horse, being tendered satisfaction for the same. Note, that
it was alleged and proved that he had convenience to carry the same;
and the plaintiff had a verdict. Jackson v. Rogers, 2 Show, 327, 89
Eng. Reprint, 965." Jones' Blackstone's Commentaries, 1329.

'Hunter, Roman Law, 512; French Civil Code, Arts. 1782, 1952,
Spanish Civil Code, Arts. 1601, 1783, 1784; 5 Corpus Juris, 378.

" But see contra, Cockburn, C. J., in Nugent v. Smith, 1 C. P. D.
428.

" 6 Cyc. 368. Cf. note 8, S7ipra.

"6 Cyc. 392; 10 C. J., 40.

"Royal Brewing Co. v. Missouri etc. R. Co., 217 Fed. 146.

"6 Cyc. 377.

EVERETT V. SWAYNE & HOYT, DEC. 28, 1916. 607

public enemy.^^ The latter does not include mob violence.^®
Whether it includes a strike is a question on which the
courts have divided. The existence of a strike by other
than the carrier's employees, and which blocks all traffic,
has been held to relieve the carrier of its duty to receive
and transport freight.^' But the decision ^^ cited by de-
fendant's counsel is the only one which we have been able
to find to the effect that a strike of the carrier's own
employees will afford such excuse. There is older and
ampler authority ^^ (ignored in that opinion) for the con-
trary doctrine. The question came before the New York
Court of Appeals as early as 1859 in a case -° where a rail-
road company sought to escape its common carrier's liability
on the ground that its engineers had refused to work. In
an opinion by an eminent Judge (Denio) the court said, in
language quite apposite here:

"The position that the defendants are not responsible, because
the misconduct of their servants was wilful and not negligent, can-
not be sustained. The action is not brought on account of any injury
done to the property by the engineers, but for an alleged nonperform-
ance of a duty which the defendants owed to the owner of the
property. If their inability to perform was occasioned by the de-
fault of persons for whose conduct they are responsible, they must
answer for the consequences, without regard to the motives of those
persons. * * * '

"Those who intrust their goods to carriers have no means of as-
certaining the character or disposition of their subordinate agents
or servants; they have no agency in their selection, and no control
over their actions. * * *

"Id., 379.

"Id.

"Louisville etc. R. Co. v. Queen City Coal Co., 99 Ky. 217, 35 S.
W. 626.

"* Murphy Hardware Co. v. Southern Ry. Co., 150 N. C. 703, 64 S.
E. 873.

"Blackstock v. N. Y. etc. R. Co., 20 N. Y. 48, 75 Am. Dec, 372.
Cf. Weed v. Panama R. Co., 17 N. Y. 362, 72 Am. Dec. 474; People
v. N. Y. etc. R. Co., 28 Hun (N. Y.) 543; 9 Am. & Eng. R. Cas. I.

Such was also the Roman Law doctrine. Bowyer, Modern Civil
Law, 276.

''" Blackstock v. N. Y. etc. R. Co., 20 N. Y. 48, 75 Am. Dec. 372.

608 I EXTRATERRITORIAL CASES.

"Being a corporation, all their business must necessarily be con-
ducted by agents, and if they are not liable for their acts and omis-
sions, parties dealing with them have no remedy at all."

In a similar case -' arising in Illinois the supreme court
of that state said:

"It is, doubtless, the law, that railway companies cannot claim
immunity from damages for injuries resulting in such cases from
the misconduct of their employees, whether such misconduct be wil-
ful or merely negligent. If employees of a common carrier suddenly
refuse to work, and the carrier cannot promptly supply their places
with other employees, and injury results from the delay, the carrier
is responsible; such delay results from the fault of the employees."

"It is a well settled principle of law," observed Mr. Justice Bid-
die," "that a delay caused by a 'strike' or mob composed solely of
the employees of a railroad company * * * ^iu not excuse the
company from receiving and carrying freight according to its con-
tract or public duty."

The two latter quotations are obiter dicta but they serve
to disclose an attitude of the courts elsewhere quite incon-
sistent with that expressed in the North Carolina case relied
upon by defendant's counsel and appear to us to state the
sounder and better doctrine. And while the facts above
reviewed are not strictly parallel to those in the case at bar,
still if a carrier is not relieved of liability by conduct of its
employees which is contrary to its orders it would seem a
fortiori that exemption could not be claimed where, as here,
the agent's acts are not disavowed by the carrier.

Under all the authorities, moreover, the obstacle which
will excuse the carrier must be one which he cannot remove
with proper care. Not even an "Act of God" will relieve
him if his own negligence contributed effectively to the
result.--' So, altho a hoiia fide lack of shipping facilities
will excuse the carrier,-^ it must appear that he has used
ordinary care to supply them not only from the locality in

" Pittsburgh etc. R. Co. v. Hazen, 84 111., 36, 25 Am. Rep., 422.
'"- Pittsburgh etc. R. Co. v. HoUowell, 65 Ind., 188, 32 Am. Rep., 63.
^Georgia etc. R. Co. v. Barfield (Ga., 1907), 58 S. E., 236; Fer-
guson v. Southern R. Co., 91 S. C, 61, 74 S. E., 129.
"^Hutchinson, Carriers (3d. ed.), II, sec. 495.

EVERETT V. SWAYNE & HOYT, DEC. 28, 1916. 609

question but from others -^ and it is no defense that he has
failed to provide them or has depended unsuccessfully upon
another.2^ In a recent Pennsylvania case ^^ it was ob-
served :

"That the refusal to allow plaintiffs a siding connection was an
undue and unreasonable discrimination against them was too clearly
established to admit of question. The congested condition of traffic
on defendant's road, which was offered in explanation, afforded
neither excuse nor extenuation. The means of 'protection against
such condition was in defendant's own hands. It was under no duty
to haul more coal than could safely and conveniently be transported
over its line; but a bounden duty did rest upon it, in limiting the
amount to be accepted by it, because of extraordinary conditions,
to show no preference as between shippers, and to treat all alike on
some equitable basis."

Applying to the case at bar these principles (for no
precedent on all fours with this case has been cited or
found) we must inquire whether defendant used sufficient
care to avoid the situation which led it to refuse plain-
tiff's cargo. As we have seen, the averment is that
the agents were prohibited by their (not defendant's)

25 "poj. aught the evidence shows to the contrary, the appellant,
by the use of ordinary care, could have sent in cars from other divi-
sion points, without discommoding shippers at those points, in order
to supply the temporary needs of shippers at the station of Pryatt.

"Altho the demand for stock cars was great and unusual on the
division on which Pryatt is situated during the time appellees were
seeking to ship their cattle, it was the duty of the appellant to en-
deavor to meet this unusual demand and to satisfy the requirements
of shippers from that station by exercising ordinary care to have
the need supplied." St. Louis etc. R. Co. v. Keefe, 113 Ark., 215, 168
S. W., 131.

^^ "It was the duty of the defendant as a common carrier to fur-
nish reasonable facilities for the transportation of commodities along
its line. The fact that it had no cars at the time of its purchase of
the road, or the fact that another company had failed to supply its
cars, is not a sufficient answer to this requirement, unless it be shown
that reasonable facilities had been provided for the procurement of
cars from another company, which had proved inefficient on account
of the unprecedented and unexpected emergency." Missouri etc. R.
Co. V. Sneed, 85 Ark., 293, 107 S. W., 1182.

*'Cox v. Pennsylvania R. Co. (Pa.), 85 Atl., 863.
14008 o. w. — S9

610 I EXTRATERRITORIAL CASES.

national authorities from accepting it. But there is no
claim that this prohibition was legally effective against
defendant or that it could not easily have employed other
agents who were exempt therefrom. In the language of
the opinion last cited, therefore, "the means of protection
against such condition was in defendant's own hands."
And wherever such is the case the common carrier's liabil-
ity continues.

We have seen, too, that the carrier cannot shift the
responsibility to his employees, even where they defy his
orders and assume an attitude adverse to him. There is
no averment here that the acts of defendant's agents
V7ere such. For aught that appears the agents' policy was
also that of the principal.

The briefs contain considerable discussion as to how
far the agent's knowledge may be imputed to the princi-
pal. It may be conceded that defendant was not presumed
TO know the British Enemy Trading Acts but it is hard
to conceive of knowledge more important for its agents
to communicate than their own restrictions as to those
from whom they were permitted to accept freight. Clearly
this is a matter which they should have reported to de-
fendant and, as a rule, what they should have done they
are, as regards plaintiff, conclusively presumed to have
done.-^

But aside from this presumption we do not see that it
v/ould aid defendant if it were proven positively that its
agents did not so inform it and that it remained ignorant
of the fact that its agents would not accept freight from
all who might apply. That would merely show that the
agents were acting adversely to their principal, which,
as we have seen, will not, according to the weight of
authority, relieve the latter from liability.

Defendant emphasizes in its brief the fact that its
"agents offered to accept the cargo provided plaintiff could
procure the consent of the British Consul." But that
was a condition; and, as we have seen, a common carrier
must serve all unconditionally and equally, and while the

31 Cyc, 1451, 1640, 1587.

EVERETT V. SWAYNE & HOYT, DEC. 28, 1916. gH

common law may have been modified for the British Em-
pire by the recent Enemy Trading Acts these have no
appHcation to Americans. Moreover the testimony
(Walker's Deposition) shows that others were given space
without conditions. Indeed, the petition (par. 8) alleges
and the answer (par. 4) admits that defendant was
"accepting offers for allotting space to the public generally."
Besides it seems clear that the agents knew plaintiff could
not meet the condition.

We must find, therefore, that defendant has not shown
exemption from its common carrier's obligation ; that its
duty was to receive plaintiff's freight; and that, by its
refusal, it incurred liability.

II.

The measure of damages for such refusal varies accord-
ing to the status of the applicant. If he is the owner
of the goods offered for shipment and the object is a
sale at destination, he is entitled to the difference between
the market price at the latter and that prevailing at the
point of application, less freight charges.^^ To this is
sometimes added the element of depreciation while the
goods are awaiting shipment,^" and always the award
must be such as will reimburse the applicant for actual
loss.^^ Thus he is entitled to recover any profits he would
have realized from the refused shipment.^^ In a case ^^

''6 Cyc, 375, note 72; Hutchinson, Carriers (3d ed.), Ill, sec. 166;
St. Louis etc. R. Co. v. Leder Bros., 87 Ark., 298, 112 S. W., 744;
Toledo etc. R. Co. v. Wren, 78 Ohio St., 137, 84 N. E., 785.

" Shoptaugh V. St. Louis etc. R. Co. 147 Mo. Appl. 8, 126 S. W., 752.

"^ Delaivure. Williams v. Armour Car Lines, 7 Pen. (Del. 275),
79 Atl., 919.

Kentucky. Louisville etc. R. Co. v. Ohio Valley Co., 161 Ky., 212,
170 S. W., 633.

Mississippi. Parish v. Yazoo etc. R. Co. (Miss., 1913) , 60 So., 322.

Pennsylvania. Hillsdale Coal & Coke Co. v. Pennsylvania R. Co.,
229 Pa., 61, 78 Atl., 28.

Texas. Missouri etc. R. Co. v. Empire Express Co. (Tex. Civ.
App.), 173 S. W., 222.

" Houston etc. R. Co. v. Campbell, 91 Tex., 551, 45 S. W., 2; Houston
etc. R. Co. V. Hill, 70 Tex., 51, 7 S. W., 659.

"^Hillsdale Coal & Coke Co. v. Pennsylvania R. Co., 229 Pa., 61,
78 Atl., 28.

512 I EXTRATERRITORIAL CASES.

where a coal company had been refused proper facilities
by a common carrier the supreme court of Pennsylvania
approved the following instruction to the jury:

"As we look at it, the only known method to get data from which
to estimate what a man is damaged by reason of discrimination in
not furnishing cars or other facilities of transportation is to give
the shipper discriminated against what would have. been a reasonably
fair profit on whatever is shown to be the fairly probable output
of the mine discriminated against, less what was actually shipped
from such mine."

The same authority quotes with approval this statement
of the doctrine by the supreme court of Michigan:

"The profits lost constitute the legitimate measure of damages.
The law is not so blind to justice as not to require the defendant to
respond in damages if there is any reasonable basis for their as-
certainment." °*

In the case at bar plaintiff was not the owner of the
goods offered for shipment and hence could not claim the
measure of damages applicable to transportation for sale.
But we think it clear from the authorities just reviewed
that he is entitled to reimbursement for the loss incurred
by the refusal of shipment, including profits therefrom.
Another case ^' quite analogous in principle was one where
plaintiff had contracted to sell railway excursion tickets
in reliance upon the defendant company's promise to issue
an unlimited number. It was held that the measure of
plaintiff's damage for defendant's nonperformance was
the profit the former would have received from the tickets
he had sold.

It is admitted (p. 8) that defendant's freight rates on
the Yucatan were G. $16.50 per ton. But it is undisputed
that plaintiff had made contracts with his customers by
which he was to receive G. $30 per ton for what he should
ship for them. It appears (pp. 8, 12) that these con-
tracts were entered into when freight rates were high in
Shanghai and that by the time application for space was
made to defendant there had been a fall of almost one-
half — a situation so much a part of local history that this
court might almost take judicial notice thereof.

" Hitchcock V. Supreme Tent, 100 Mich., 40, 58 N. W., 640.
"» Houston etc. R. Co. v. Hill, 70 Tex., 51, 7 S. W., 659.

EVERETT V. S WAYNE & HOYT, DEC. 28, 1916. 613

There is nothing to indicate that defendant or its agents
knew of plaintiff's contracts with his customers. But that
was not necessary.^*' Nor was there any speculative
element in plaintiff's profits. In some of the cases above
cited prospective profits were allowed on estimated sales
and probable contracts. But here the contracts were
actually made and the proceeds susceptible of exact calcu-
lation and it seems to us that the carrier's refusal was
an even more direct and proximate cause of the loss of
these profits than in the authorities heretofore cited.

But we also think that something must be charged
against these profits. Defendant's counsel contends that
the true measure of damages here "could only be the
difference between the rate at which defendant's agents
accepted cargo from other shippers and the rate actually
paid by plaintiff to ship his cargo by other steamers."
He cites no case in which this rule is applied, but it
seems reasonable to require that an applicant who is re-
fused service by one common carrier should not charge
the whole damage upon the latter if another is ready to
provide service which will prevent, or at least reduce,
the damage. Such a principle obtains in the law of Master
and Servant ; ^^ it seems equitable and sound and we see
no reason why it should not also be applied here.

Plaintiff testifies in response to his counsel's questions:

"Q. You had this cargo for shipment at $30 a ton?

A. Yes.

Q. What ultimately became of it, did you ship it?

A. No, Arnold Karberg shipped -it by some people in Kobe.

They shipped the carge to Kobe and afterwards shipped it to
America and I had the cargo from the Tientsin firm shipped to
Kobe for transfer to America, but I made no profit on it and the
services were absolutely without remuneration. I lost the business
and the profit, besides it took up a lot of time and trouble."

'" Houston etc. R. Co. v. Campbell, 91 Tex., 551, 45 S. W., 2.

" 26 Cyc, 1006, 1014. "When the defendant knew that the trans-
portation would not be furnished, he was not bound, in order to
recover for the wrong done him, to prepare and offer the wood. As
argued by his counsel, it was his duty to pursue that course best
calculated to lessen the damage resulting from the wrong." Houston
etc. R. Co. V. Campbell, 91 Tex., 551, 45 S. W., 2.

614 I EXTRATERRITORIAL CASES.

On cross-examination he states further:

"Q. You assisted in shipping the Arnold Karberg cargo thru to
Japan?

A. Yes, it was done in my name and sent to the godown and
insured in my name, and I can vouch that it was not in the name
of Arnold Karberg who made the arrangement.

Q. In name you were the shipper.

A. As forwarding agent."
*******

Q. Altho you could not ship it yourself still the German firm
could ship it.

A. Yes, they did it thru a Japanese firm and it was not shipped
in their own name.

Q. You made no effort to ship it yourself?

A. Well, I did, but they were satisfied to take it over and did it
themselves."

On being asked "the rate across the Pacific" for this
shipment he replied :

"I estimate between $25 and $26 including all things such as
lighterage, commissions."

Elsewhere he says:

"If I could get the cargo away by the Yucatan at $16 « should I
go to the Japanese lines for $25 or $26 a ton?"

It seems clear from this that plaintiff's customer was
given a rate by the Japanese company about G. $4.50 per
ton less than that fixed in the contract with plaintifl^,
tho the shipment was made in his name at least as "for-
warding agent." He admits in effect (pp. 10, 13), that
he did not ask, and hence was not refused, space from
said company for this particular cargo, and without a
positive showing to that effect, we think it would be in-
equitable to charge upon the defendant more than the
difference between its rate and that of the Japanese com-
pany which would be about G. $9 per ton.

On the other hand, we do not think defendant has shown
that other shipping facilities were available to plaintiff
at the time. After stating that "the British firms and
their allies would not do business with me," plaintiff
testifies :

"Q. When the Yucatan shut out that cargo you took no efforts to
ship by other lines and dropped the matter?

EVERETT V. SWAYNE & HOYT, JAN. 6, 1919. 615

A. No, I beg to differ there. I tried to make negotiations or
arrangements with Andersen, Meyer and other steamship people.

Q. You restricted your efforts to American steamers?

A. Yes, I might say that I tried to get a Vladivostok steamer,
but the Yucatan was the only vessel I could take advantage of."

We might almost take judicial notice that the lines
mentioned in plaintiff's testimony included all of those
then operating and the burden was on defendant to show
that the Japanese company was not the only one open to
plaintiff.^* We must therefore find that he is entitled to
recover as damages for defendant's refusal the difference
between its rate and that of the Japanese company which
was, as we have seen, G. $9 per ton. As it is admitted
that three hundred tons were offered the whole would
amount to G. $2,700.

It is accordingly considered and adjudged that plaintiff
have and recover from defendant the sum of two thou-
sand seven hundred dollars United States currency together
with his costs.

III. ON WRIT OF ERROR IN THE COURT OF APPEALS.
BEFORE CIRCUIT JUDGES GILBERT, ROSS AND HUNT.

Ira A. Campbell, Esq., and McCutchen, Olney & Willard,
for plaintiff in error.

Garret W. McEnnerney , Esq., for defendant in error.

[Filed January 6, 1919.]

Ross, C. J.:

This case comes here from the United States Court for
China. It is a writ of error sued out by the defendant
to an action there brought by the present defendant in
error to recover damages for the refusal of the plaintiff
in error, a common carrier, to receive, without lawful
excuse, certain cargo offered it by the plaintiff to the action
for shipment from Shanghai by the steamer Yucatan,
which had been advertised to be on the berth at Shanghai
for freight to San Francisco.

The facts are practically undisputed, and are, briefly,
these: Swayne & Hoyt was a California corporation
having its principal place of business at San Francisco,

''26 Cyc, 1006.

616 I EXTRATERRITORIAL CASES.

and was therefore an American citizen, and was a common
carrier of freight between the Orient and that among
other places. It had as its agent at Shanghai a British
corporation styled Jardine, Matheson & Company, Limited,
and had under charter the said steamship for a voyage
from San Francisco to China and Japan and return to San
Francisco and other Paciftc coast ports of the United
States.

Prior to the arrival of the Yucatan at Shanghai the
plaintiff in the case applied to the agent of the defendant
there for space to ship certain goods, in response to
which application, after one denial of it, the agent agreed
to provide the requested space upon condition that the
application be approved by the British Consul at Shanghai.
That conditional acceptance was refused. The cargo
offered for shipment by the plaintiff was being handled
by him for German subjects, by reason of which fact he
was blacklisted by the British government, and all British
subjects, including the agent of the defendant corpora-
tion, were inhibited from dealing with the plaintiff respect-
ing this particular shipment as well as all other such ship-
ments. The defendant through its British agent having
refused to accept the cargo offered by Everett, the action
was brought, resulting in the judgment of the court below
in his favor for $2,700.00, with costs.

But two questions of law are involved, first, whether
the court below had jurisdiction of the subject-matter
of the action, and, if so, then secondly, its merits.

By Section 1 of the Act ''' of June 30, 1906, creating the
court below, it is given

The qualification specified in Section 2 of the Act has
no bearing upon the present case, and, therefore, no fur-
ther mention of it need be made.

34 U. S. Stats, at Large, 814.

SWAYNE & HOYT V. EVERETT, JAN. 6, 1919. 617

At the time of the passage of the Act of June 30, 1906,
there were in force the provisions of Sections 4083, 4084
and 4085 of the Revised Statutes, by which certain judi-
cial authority was conferred upon United States ministers
and consuls in certain countries, including China, which
jurisdiction embraced all controversies between citizens
of the United States or others, provided for by its treaties.

The treaty with China bearing upon the present ques-
tion was that of June 18, 1858,*° and conferred upon the
United States the right to appoint consuls in various parts
of China. Its XXVIIth article is as follows:

"All questions in regard to rights, whether of property or person,
arising between citizens of the United States in China, shall be
subject to the jurisdiction and regulated by the authorities of their
own government; and all controversies occurring in China between
citizens of the United States and the subjects of any other govern-
ment shall be regulated by the treaties existing between the United
States and such governments, respectively, without interference on
the part of China."

It is the contention of the plaintiff in error that the
words "in China" in the foregoing Article qualify the word
"citizens" and not the word "arising;" in other words,
that a residence of the parties in China is essential to the
existence of any jurisdiction in the court. We think it
obvious that such a construction of the provision is wholly
inadmissible, for the subject matter thereby dealt with
is controversies arising in China. The first clause of the
provision relates to controversies in regard to rights,
whether of property or person, there arising between
citizens of the United States, and declares that they shall
be subject to the jurisdiction and be regulated by the
authorities of their own government; and by its second
clause it is declared that all such controversies there
arising between citizens of the United States and the
subjects of any other government shall be regulated by
the treaties existing between the United States and such
governments, respectively — in each instance without in-
terference on the part of China. We regard it as clear
that this is the very plain meaning of the article in ques-

12 U. S. Stats, at Large, p. 1029, Malloy, Treaties, I, 220.

618 I EXTRATERRITORIAL CASES.

lion. As said by counsel for the defendant in error, the
bare reading of its second clause is all that is necessary
to show that the words "in China," there used, fix, as
the basis of the jurisdiction of the court, the place of the
origin of the controversy, and not the residence of the
parties thereto. No sound reason is suggested why a
like construction should not be placed upon the first clause.
To adopt the view urged by the plaintiff in error would
be, in effect, to hold a consular court in China vested with
jurisdiction of a controversy between American citizens
arising in the United States if they happened to be resi-
dents of China.

Upon the merits we think the case equally clear.

It does not admit of doubt that a common carrier, with
certain well-established exceptions, is under legal obliga-
tion to carry the goods of any member of the public who
may tender them for carriage. That such a carrier sub-
ject to such legal obligation may show that it was pre-
vented from performing it by Act of God or a public
enemy, or by some other cause over which it had no con-
trol, is readily conceded ; but in all such cases the defense
is an affirmative one, and the burden is upon the carrier
to both plead and prove it.*^

At the time of the occurrences in question, England and
Germany were at war, but the United States was not;
on the contrary, this country was then observing strict
neutrality between those belligerents. How, then, can it
be properly held that the performance of the clear legal
duty of an American carrier to receive and transport goods
tendered for carriage, by an American citizen, is excused
on the ground that the British government had forbidden
its citizens and corporations, one of which happened to
be the agent of the American carrier, from receiving the
tendered freight and providing for its transportation?
Such is not the law as we understand it.*^

^'1 Michie on Carriers, sec. 381; Chicago etc. R. R. Co. v. Wolcott,
141 Ind., 267, 39 N. E. Rep., 451.

'' See Richards & Co., Inc. v. Wreschner, 156 N. Y. Supp., 1054,
and the numerous cases there cited.

UNITED STATES V. RINCON, JULY 2 4, 1916. 619

It is contended on behalf of the carrier that there was
no evidence to show that it knew that its agent at Shanghai
was inhibited by the British government from shipping
the goods of the plaintiff in time to have employed an
agent not under such disability. Whether or not the
carrier knew of the inhibition at all, or was apprised of
it in time to have employed another agent, the fact re-
mains that the agent it did appoint, acting within the
scope of his employment, deprived the plaintiff of his legal
right. For that wrong we think the carrier was properly
adjudged liable, even assuming that it was ignorant of
its agent's disability." The judgment is

AFFIRMED.

IN THE UNITED STATES COURT FOR CHINA.
United States v. Manuel Rincon.

[Cause No. 518; filed July 24, 1916.]

SYLLABUS.

(By the Court.)

1. CRIMINAL PROCEDURE: A Plea OF GuiLTY admits only the specific

averments of the information.

2. Even facts judicially noticed, if essential and not alleged, are not

admitted by such a plea.

Chauncey P. Holcomb, Esq., U. S. Dist. Atty., for the
prosecution.

Joseph W. Rice, Esq., for the defense.

Lobingier, J.:

The accused pleads guilty to an information charging
him with

"the crime of false pretense: in that the said Manuel Rincon, within
the jurisdiction of the said Court, at Shanghai, China, did, on or
about the 4th of July, 1916, falsely pretend to one Sing Fat & Co.
that a certain paper purporting to be a certificate of indebtedness
for One Hundred Fifty-Seven Dollars (Mexican) and by him offered
and given to the said Sing Fat & Co. in payment of two Diamond

'' See Chesapeake & Ohio R. Co. v. Francisco, 149 Ky., 307, 148 S.
W., 46.

620 I EXTRATERRITORIAL CASES.

Rings sold and delivered to the said Manuel Rincon by the said
Sing Fat & Co., was a good and valid certificate of indebtedness for
the said payment for the said two Diamond Rings, by means of
which the said Manuel Rincon did then and there obtain from the
said Sing Fat & Co. the said two Diamond Rings, with the intent then
and there to cheat and defraud them, the said Sing Fat & Co., of the
same; Whereas in fact the said certificate of indebtedness was signed
by the said Manuel Rincon with a fictitious name, namely, *M. R.
Alvarez,' for the payment of the aforesaid sum of One hundred
Fifty-Seven Dollars (Mexican)."

The sole question to be determined is the penalty. The
Act of Congress under which the prosecution is brought
provides :

"Whoever, by any false pretense, with intent to defraud, obtains
from any person anything of value, or procures the execution and
delivery of any instrument of writing or conveyance of real or per-
sonal property, or the signature of any person, as maker, indorser,
or guarantor, to or upon any bond, bill, receipt, promissory note,
draft, or check, or any other evidence of indebtedness, and whoever
fraudulently sells, barters, or disposes of any bond, bill, receipt,
promissory note, draft, or check, or other evidence of indebtedness,
for value, knowing the same to be worthless, or knowing the signa-
ture of the maker, indorser, or guarantor thereof to have been
obtained by any false pretenses, shall, if the value of the property
or the sum or value of the money or property mentioned or de-
scribed in the instrument so obtained, procured, sold, bartered, or
disposed of is thirty-five dollars or upward, be imprisoned not less
than one year nor more than three years; or, if less than that
sum, shall be fined not more than two hundred dollars or imprisoned
for not more than one year, or both." ^

It will be seen that the information fails to allege the
value of the diamond rings thus admitted to ' have been
received nor is it alleged that the sum mentioned in the
certificate of indebtedness is more than thirty-five dollars
United States currency. It may be, as the District At-
torney suggests, that we may take judicial notice of the
value of Mexican currency altho we have found no authority
other than that the value of United States currency may
be judicially noticed.- "But," says the same authority,

*Act of Congress of March 3, 1901, Sess. II, 31 U. S. Stats, at
Large, Ch. 854, sec. 842, p. 1326; amended 32 U. S. Stats, at Large,
Sess. I, Ch. 1329, p. 535.

' Cyc, XXII, 303.

I- UNITED STATES V. ALLEN, SEPT. 29, 1916. 621

"the fact that the court will take judicial notice of certain matters
essential to the proof of the offense will not render it unnecesary
to aver such matter, if necessary to its description, in order to
advise the accused of the charge which he must be prepared to meet." '
For "by a plea of guilty the accused simply confesses that he is
guilty in manner and form as charged in the indictment, and if the
indictment charges no criminal offense, or is otherwise fatally de-
fective, it may be subsequently attacked on that ground." *

In view of these authorities we have reached the con-
clusion, contrary to our first impression, that the accused
by his plea of guilty did not admit the amount of the cer-
tificate of indebtedness to be more than thirty-five dollars
gold and that the testimony subsequently ofi'ered as to the
value of Mexican currency should not be considered so long
as the accused was not permitted to withdraw his plea.

He is therefore sentenced to six months of imprisonment,
to be served in the Prison for American convicts at Shang-
hai, China, unless and until directions are given for his trans-
fer to Bilibid Prison, Manila, territory of the Philippines;
and to pay a fine of two hundred dollars, United States cur-
rency, with subsidiary imprisonment according to law in
case of non-payment, and the costs of this prosecution.

IN THE UNITED STATES COURT FOR CHINA.
United States v. John T. Allen.

[Causes No. 537 and 538; filed September 29, 1916.]

SYLLABUS.

(By the Court.)

1. ASSAULT: DISPLAY OF WEAPON. By the weight of authority the

display of a firearm "in a menacing manner" is sufficient to
constitute an assault tho it is neither held horizontally nor
actually pointed at another.

2. Id. : Id. : If the person affected has a well-founded belief that the

firearm is loaded, proof that it is so is not essential.

3. Id. : Id. : Similarly the weapon may be defective, provided the other

party has no knowledge of the defect and believes that it is
dangerous.

4. Id. : Id. : Evidence examined and found sufficient to show that the

weapon in the principal case was displayed in a threatening

'Cyc, XXII, 303. * Id. XII, 353.

622 I EXTRATERRITORIAL CASES.

manner at one who believed that it was both loaded and dan-
gerous.

Chauncey P. Holcomb, Esq., U. S. Dist. Atty., for the
prosecution.

M. L. Heen, Esq., for defendant.

LOBINGIER, /.;

The accused is charged in both of these causes with

"the crime of 'assault and threatening in a menacing manner;' in
that the said John T. Allen, on the fourteenth day of September,
1916, did assault and threaten by the display of a firearm, namely
a pistol, and in words did threaten"

a different person named in each information.

It is admitted by the accused that he did have a pistol on
his person at the time and occasion as charged and that he
did display it to the one named in the information in cause
No. 537, to wit : Anton Katsomitis. The principal difference
among the witnesses in said cause arises in regard to the
manner of such display. The complaining witness (Katso-
mitis), who is the proprietor of the saloon called the "Naval
Club" at which the accused admits having been on said date,
declares that the latter drew the pistol and pointed it at the
complaining witness, holding it horizontally. This testimony
is corroborated by that of the witness Stanley, a pianist at
the saloon, who says also that the pistol was cocked. Foley,
another witness for the prosecution, describes the display
of the weapon as follows:

"He holds the gun out of his hip pocket and then puts it in front
with the point of it protruding towards Mr. Katsomitis."

(Cross Examination.)

Q. "How long did he hold the gun?
A. Long enough to scare me.

Q. How did he hold the gun, like that? (indicating) close to the
waist?

A. Yes, close to the waist."

On the other hand the accused and the witness Brauer
who testified in his behalf, claim that the former merely
"showed" the pistol and did not threaten the complaining
witness. Brauer admits, however, that there was a heated
argument between the complaining witness and the accused

UNITED STATES V. ALLEN, SEPT. 2 9, 1916. 623

about a dog. Moreover neither of them denies the unani-
mous testimony of the prosecution's witnesses that the
complaining witness made a hurried escape, which is unex-
plained on any other theory than that he felt himself in
danger. The testimony of these last named witnesses, that
the display of the weapon was merely the menacing cul-
mination of a wordy attack in which the accused was the
aggressor, seems to us much more credible than the latter's
claim that there was no dispute or quarrel, and that he
produced the weapon merely to demonstrate that he had
one. Foley differs, indeed, from the other government
witnesses in describing the position in which the pistol was
held; but all of them agree that it was displayed in a
threatening manner.

If, however, we were to accept only defendant's version
of the manner in which he held the weapon and should con-
sider, as we must, in connection therewith the admission
that there was a heated argument and the undisputed flight
of the complaining witness, this would be sufficient, ac-
cording to the clear preponderance of authority,^ to es-

^ California. "When the party draws the weapon, altho he does
not directly point it at the other, but holds it in such a position as
enables him to use it before the other party could defend himself,
at the same time declaring his determination to use it against the
other, the jury are fully warranted in finding that such was his
intention." People v. McMakin, 8 Cal., 547, 549.

Missouri. The gun need not be raised to the shoulder nor pointed
at the other party. State v. Epperson, 27 Mo., 255.

North Carolina. State v. Rawles, 65 N. C, 334; State v. Church,
63 N. C, 15.

South Carolina. "The drawing of the pistol may itself constitute
the assault." State v. Sullivan, 43 S. C, 205, 21 S. C, 4, citing
State V. Jackson, 32 S. C, 27, 10 S. C, 769.

Texas. Higginbotham v. State, 23 Tex. 575; Bodeman v. State
(Cr. App.), 40 S. W., 981, where the accused merely reached for the
pistol and the complainant fled.

Washington. State v. McFadden, 42 Wash., 1, 84 Pac, 401, where
the accused was only "proceeding to draw the revolver."

The principal authority to the contrary is Lawson v. State, 30
Ala., 14, where the opinion consists of four sentences and gives no
reasons.

In State v. Barry, 45 Mont., 598, 124 Pac, 775, cited by defend-
ant's counsel, the accused was not even put in fear.

624 I EXTRATERRITORIAL CASES.

tablish the crime of assault. There are, indeed, decisions
to the contrary, but they are not only much fewer in num-
ber; they are, in our judgment, less reliable and sound in
doctrine. In establishing a new rule for this jurisdiction
we should consider it very unsafe to hold that a party may
display a pistol in such a manner as to threaten another
into escape and yet be guilty of no offence.

The accused also states that the pistol was unloaded.
There is no corroboration of this and while there is no ex-
press contradiction because none of the other witnesses
had examined the pistol on the day in question, and while
we cannot consider the testimony of Smith, the complaining
witness in cause No. 538, who says that he had seen the
weapon frequently at defendant's house and found it loaded
and "ready for action ;" still the prevailing rule appears
to be that this is a matter of defense which the accused
must prove - and the Court is, of course, not obliged to
accept the statement of a single and interested witness.

But assuming that the pistol was not loaded, this would
not excuse the defendant. For while there is also a conflict
among the authorities as to the effect of displaying an un-
loaded pistol, and while defendant's counsel, with com-
mendable industry, has produced a number on his side of
the question, not only is the great preponderance in favor
of the view that such display is criminal ^ but the point has
been so settled for us by the Court of Appeals * which
adopts as its doctrine the statement of a well-known text-
writer ^ that

"if within shooting distance one menacingly points at another with
a gun, apparently loaded, not loaded in fact, he commits an assault
the same as if it were loaded."

^Montana. State v. Herron, 12 Mont., 230, 33 Am. St. Rep., 576.

North Carolina. State v. Cherry, 33 N. C, 475.

Texas. Crow v. State, 41 Tex., 468; Caldwell v. State, 5 Tex., 18.

In California (People v. Jacobs, 29 Cal., 579) and Nevada (State
V. Nappers, 6 Nev. 113) it has been decided otherwise.

^ Corpus Juris, V, 725, note 85.

* Price V. U. S., ante, p. 129.

"Bishop, Criminal Law (3rd ed.), II, sec. 53. Cf. People v. Mitch-
ell, 139 Iowa, 455, 116 N. W., 808, one of the last opinions written
by the late Justice McLain, author of the most recent and com-
prehensive work on American criminal law.

UNITED STATES V. ALLEN, SEPT. 29, 1916. 025

The accused further states that the main spring of the
pistol was broken. The state of the testimony on this point
is similar to that regarding the one just discussed. But
again accepting the defendant's testimony, we are of the
opinion that a similar legal doctrine applies; for the com-
plaining witness evidently did not believe that the weapon
was defective, otherwise he would not have fled, and the
test of the criminal character of the act is the well-founded
belief of the one affected. The author followed as above
shown by the Court of Appeals adds in the same connection :

"There is no need for the party assailed to be put in actual peril,
if only a well-founded apprehension is created. For his suffering is
the same in the one case as in the other, and the breach of the
public peace is the same." '

So even in jurisdictions where the doctrine prevails that
the mere display of a weapon is not sufficient, convictions
of assault have been upheld, tho the pistol was without
a cap. '

The charge in cause No. 538 rests on the testimony of
a single witness who states that the accused did display,
tho he did not point, the pistol at him. This is denied not
only by the accused but by the other two witnesses who were
present and claim not to have seen such display. There
are some circumstances which corroborate the com-
plaining witness, and it may even be that his testimony
is the more probable ; but in view of the previous relations
between him and the accused, which did not appear to have
been at all times friendly, we cannot say that this charge
is established beyond a reasonable doubt and we therefore
apply the doctrine elaborated in a recent case.*

Accordingly we find the accused guilty of threatening
"in a menacing manner" the complaining witness in cause
No. 537 but find the evidence insufficient to convict in
cause No. 538.

In fixing the penalty we cannot overlook the fact that this
is not the accused's first offense. In Criminal cause No.

'Bishop, Criminal Law (8th ed.), II, sec. 32; followed in Clark v.
State (Okla. Cr. App.), 106 Pac, 804.

' Flournoy v. State, 16 Tex., 31 ; Mullen v. State, 45 Ala., 43, 6
Am. Rep., 691.

' U. S. V. Martin, ante, p. 549.

14008 O. W. 40

626 I EXTRATERRITORIAL CASES.

89 he was convicted of unlawfully selling intoxicating li-
quors without a license ; in Criminal cause No. 90 he was con-
victed of keeping a disorderly house ; in each of which he was
given only a moderate fine. Later he failed to comply with
an undertaking to appear in this court and instead dis-
appeared and was not found within the jurisdiction for a
considerable time. It is evident, therefore, that leniency
has not been eff"ective in his case and something more than
a fine is necessary. The statute under which he is here
convicted provides for a fine of not more than $500 or im-
prisonment of not more than twelve months, or both.*^

He is accordingly sentenced to six months of imprison-
ment to be served in Bilibid Prison, Manila, Territory ol
the Philippines, said term to date from incarceration therein
and to pay the cost of this prosecution. Pending his trans-
portation thereto he will be detained in the Prison for
American Convicts at Shanghai, China.

IN THE UNITED STATES COURT FOR CHINA.
In re LucY Lucker's Will.

[Cause No. 548; filed November 24, 1916.]

SYLLABUS.
(By the Court.)

I.WILLS: Holographic wills need not be subscribed nor attested.

2. Id. : Administration : Lack of Executor. A testamentary instru-

ment, otherwise valid, will not be denied probate because it
fails to name an executor; in such case an administrator cum
testamento annexo will be appointed.

3. Id. : Id.: The surviving spouse, especially if he is also the father

of the other beneficiary named in such instrument, has a special
claim to be .so appointed.

Harry A. Lucker, pro se.
Nemo contra.

LOBINGIER, J.:

This is an application for the probate of an instrument
purporting to be the last will and testament of Lucy Lucker
who, according to the testimony, died in Tientsin, July 2,

• 31 U. S. Stats, at Large, Sess. II, Ch. 854 (District of Columbia
Code), sec. 806.

IN RE LUCKER'S WILL, NOV. 24, 1916. 627

1916, leaving property within the jurisdiction of this Court.
Her relatives were given personal notice of the hearing,
no opposition was offered to the petition for probate and the
proof as to testamentary capacity and mental condition
seems sufficient.

The petitioner, who was also the husband of the deceased,
testifies that the instrument is entirely in her handwriting.
It is, however, neither subscribed nor attested and the first
question to determine is whether that fact prevents its ad-
mission to probate.

At common law it seems that an holographic will {i. e.,
one written by the testator) was valid without witnesses.^
Thus a mere letter of the deceased, giving directions as to
the disposition of his property in case of death was ad-
mitted to probate as his last will and testament.- There
are dicta which restrict this rule to personalty ^ but it has
also been applied to realty.*

The Acts of Congress relating to both Alaska ^ and the
District of Columbia *' require two witnesses to a will and
make no exception. But in the latter jurisdiction ' it has
been held, nevertheless, that an holographic will need not
be witnessed; and the Federal Supreme Court has upheld
the doctrine.® The principle of all these decisions is that

' England. Habberfield v. Browning, cited in Mathews v. Warner,
4 Ves. Jr., 186, 200, note 31, Eng. Reprint, 96.

Maine. Leathers v. Greenacre, 53 Me., 561.

-Boyd V. Boyd, 6 G. & J. (Md.), 25; Byers v. Hoppe, 61 Md., 207,
48 Am. Rep., 89.

^ Mclntire v. Mclntire, 19 D. C, 482. Cf. 40 Cyc, 1130, note 9.

* Federal. Eaton v. Brown, 193 U. S., 411, 48 L. ed., 730; 9 Prob.,
627.

California. In re Barton's Estate, 52 Cal., 538.

Kentucky. Baker v. Dobyns, 4 Dana, 220.

"No attesting witnesses were necessary to make the paper a valid
will in this state of both realty and personalty." Morris v. Morton's
Ex'rs (Ky. 1892), 20 S. W., 287.

" Act of June 6, 1900, 31 U. S. Stats, at Large, Ch. 786, Tit. II, sec.
138, p. 511; Alaska Compiled Laws, sec. 564.

' Act of March 3, 1901, 31 U. S. Stats, at Large, Ch. 854, p. 1433,
sec. 1626; District of Columbia Code, sec. 1626.

' Mclntire v. Mclntire, 19 D. C, 482.

'Mclntire v. Mclntire, 162 U. S., 383, 40 L. ed., 1009; Eaton v.
Brown, 193 U. S., 411, 48 L. ed., 730.

528 I EXTRATERRITORIAL CASES.

the fact of the testator having taken pains to write the
entire instrument himself obviates the necessity of other
attestation. The high standing of the courts above cited
fully justifies us, despite the statutes, in adhering to the
doctrine announced ■' early in the history of this court, that
an holographic will needs no witnesses. Indeed there is
even more reason for adopting it in a country like China
where so many of our citizens live in comparative isola-
tion and where even two comprehending witnesses are not
always available.

II.

Another peculiarity of this instrument is that it names
no executor. This is a defect but not a fatal one.

"The opinion that the naming of an executor was indispensable
to the validity of a will 'has long since been abandoned in England,
and never obtained in the United States.' " Many documents which
omitted to name an executor have been admitted to probate in the
Courts of this State, and we are satisfied that in this State the
naming of an executor is not essential to the validity of a will." "

Where the instrument is otherwise valid the proper
course in such cases is for the court to appoint an admin-
istrator cum testamento annexo.^'- Here the petitioner is
not only the surviving spouse who, in some jurisdictions
is entitled to preference,' ■ but he is also the father of the
other beneficiary, the infant son of the deceased.

It is therefore considered and decreed that the instru-
ment in question be admitted to probate as the last will
and testament of the deceased, and, it appearing that the
petitioner is the natural and proper person to administer

° In re Allen's Will, ante, p. 92.

" Citing, Redfield on Wills, I, 5.

" California. In re Barton's Estate, 52 Cal., 538.

See also:

Maryland. Byers v. Hoppe, 61 Md., 207, 48 Am. Rep., 89.

New York. Matter of Nies, 13 N. Y. St. Rep., 756; Brandy v. Mc-
Crosson, 5 Redf. Surr., 431. Cf. Matter of Davis, 45 Misc., 554, 92 N.
Y. Suppl., 968, affirmed, 105 App. Div., 221, 93 N. Y. Suppl., 1004, and
again in 182 N. Y., 468, 75 N. E., 530.

" Cyc. XVII, 98, note 55, and cases there cited.

"/n re Meyers' Estate, 113 N. C, 545, 18 S. E., 689; Brodie v.
Mitchell, 85 Md., 516, 37 Atl., 169.

UNITED STATES V. HUNTER, JAN. 3, 1917. 529

the said estate, it is further ordered that letters of adminis-
tration thereof, cum testamento annexo, issue to him upon
his taking the oath and executing the statutory undertaking
in a sum double the value of the personal estate.

IN THE UNITED STATES COURT FOR CHINA.
United States v. R. Hunter.

[Cause No. 560; filed January 3, 1917.1

SYLLABUS.
(By the Court.)

1. CRrMES: Information: Time. Where the information charges the

commission of the offense "on or about" a certain date, the
fact that it appears to have been committed one day after that
specified is immaterial,

2. Id. : Larceny: Restitution. Under the Act of Congress of June

30, 1902, the Court has discretion to order restitution of prop-
erty taken by one convicted of larceny and this provision may
be enforced by subsidiary imprisonment.

Earl B. Rose, Esq., Special U. S. Attorney, for the prose-
cution.

Lieut. W. B. Jupp, Naval Judge Advocate, for the defense.

LOBINGIER, J.:

The information in this cause charges the accused with

"the crime of Petit Larceny: In that the said R. Hunter at Shanghai,
China, within the jurisdiction of this Court, on or about the 28th.
day of October, 1916, in a place of business known as the "Mascot
Bar" at No. 410 North Szechuen Road, did feloniously take and
carry away from the said place of business certain wines and
liquors of a value of Gold $35.00 or less * * *."

The witnesses for the prosecution are the bar maid and
the bar man who testify independently that the accused
with another came to their place on a Sunday evening in
October, between six and seven o'clock, and, finding them
alone, proceeded to appropriate the articles mentioned, and
carried them away, and that the accused also struck each
of them when they protested.

The accused failed to testify and, tho represented by

630 I EXTRATERRITORIAL CASES.

counsel, no witnesses were called on his behalf, so that
the testimony of the prosecution stands uncontradicted.
In argument some stress was laid on the fact that the
first witness gave the date as October 28, which, it appears,
was a Saturday, and not a Sunday; but the same witness
testified that she did not read English and the mistake in
dates, while easily made, would not necessarily affect the
balance of her testimony. The information, it will be seen,
charges the commission of the offence "on or about the
28th day of October" which would include the 29th, if
such were the date. There being no contrary evidence we
must find the accused guilty of the offence as charged in the
information.

Under the Act of Congress of June 30, 1902 :

"Whoever shall feloniously take and carry away any property of
value of thirty-five dollars or less, including things savoring of realty,
shall be fined not more than two hundred dollars or be imprisoned
for not more than one year, or both. And in all convictions for
larceny either grand or petit, the trial justice may, in his sound
discretion, order restitution to be made of the value of the money
or property shown to have been stolen by the defendant and made
way with or otherwise disposed of and not recovered." *

No extenuating circumstances having been suggested and
it appearing to the contrary that there were several ag-
gravating circumstances including the physical force used
on the inmates of the place, and the apparent selection of
the time when it would be least frequented, we are of the
opinion that only a substantial term of imprisonment will
satisfy the provision of the statute.

The accused is accordingly sentenced to nine months of
imprisonment to be served in Bilibid Prison, at Manila,
Territory of the Philippines, and, pending transportation
thereto, is remanded to the custody of the United States
Marshal for China.

Both witnesses testify that the value of the property was
Mexican $80 and that the owners of the establishment were
a Spaniard named "Amalo" and the first witness for the
prosecution. Under the second provision of the statute
above quoted the accused is therefore adjudged to make

* 32 U. S. Stats, at Large, Sess. I, Part I, page 535, sec. 827.

IN RE turner's will, JAN. 20, 1917. Q^\

restitution to said owners in the said sum of Mexican $80,
with subsidiary imprisonment according to law, in case of
insolvency, and to pay the costs of this prosecution.

IN THE UNITED STATES COURT FOR CHINA.
In re James Turner's Will.

[Cause No. 503; filed January 20, 1917.]

SYLLABUS.
(By the Court.)

I.WILLS: The Presumption is against partial intestacy and that a
decedent's will covers his entire estate.

2. Id. : Punctuation. Courts are authorized to supply punctuation for

the purpose of clearing up ambiguity in an informal will.

3. Id. : Interpretation. The phrase "all my valuables" in such an

instrument construed to cover the testator's entire estate, both
real and personal.

Stvtiing Fessenden, Esq., Administrator cum testamento
annexo, pro se.

No appearance contra.

Lobingier, J.:

The instrument which has been admitted to probate as
the last will and testament of the deceased is an informal
one, apparently having not only been written by the tes-
tator but composed by him, and in phraseology differs
considerably from the ordinary instruments of the kind.
The dispositive part of the will is as follows :

"I desire that all my just debts and testamentary expenses be
paid by my Executrix here in after named as soon after my decease
as may be found practicable.

"I give and bequeath unto my wife Edna. Enow. Turner all my
Valuables Household Effects and all and every sum or sums of Money
that may be found in my possession or that may be due or owing
to me at time of decease likewise all and every sum. or sums that
may be deposited in any Banks or Companies in my name at time
of decease, that my wife Edna. Enow. Turner be the Executrix of
this my last Will and Testament hereby revoking all former and
other Wills made by me heretofore and declare this to be my Last
Will and Testament."

632 I EXTRATERRITORIAL CASES.

The cause comes before us at this time upon the petition
of the Administrator cum testamento annexo for distribu-
tion, the said petition alleging

"that the Will of the said James Turner filed of record herein makes
no reference to or disposition of certain real property and shares
in corporations as inventoried in the original petition filed herein,
and furthermore said Will contains no general clause or words
disposing of or intending to dispose of the residue or remainder of
the said estate after making certain specific bequests as in said
Will set forth."

Where, as here, it is proved that the deceased left a will,
the presumption is against partial intestacy ; in other words,
it is presumed, in the absence of a contrary showing, that
the instrument was intended to cover all of the testator's
property. As stated in a work of authority: ^

"The presumption is that a testator intended to dispose of his
entire estate and not to die intestate either as to the whole or as to
any part thereof, and the will should be so construed unless this
presumption is clearly rebutted by the provisions of the will or by
evidence to the contrary, and in some jurisdictions such a construc-
tion is required by statute; and the fact that there is no residuary
clause in the will strengthens this presumption."

As will be observed from the averments of the petition as
well as from reading the excerpts above quoted there is no
"residuary clause" in this instrument, and in the words
of the authority quoted, the presumption against partial
intestacy is strengthened. It will also be noticed that in
describing the property intended to pass by the will, the
testator uses the phrase "all my Valuables Household Effect's
and all * * * sum or sums of money" etc. There is no
comma after the word "Valuables" but evidently there should
be, for the word is used only as a noun and independently,
and could not be applied to the words which follow. In
such cases the Court must "supply punctuation for the
purpose of clearing up ambiguity in the will." - Thus
punctuated the testator seeks to dispose of "all my Valu-
ables, Household Effects," etc. The term "valuables" is
not a technical one but the testator was evidently not
familiar with technical phraseology and the question is
not whether he used the phrase which an experienced scriv-

* 40 Cyc, 1409-1410. ' Id., 1403.

IN RE TURNER'S WILL, JAN. 2 0, 1917. 633

ener or draftsman would employ in the preparation of such
an instrument, but what he, the testator, intended to pass
by using the term "valuables." This is not unlike the word
"efiects" which has often been used in instruments of this
kind and given a very comprehensive interpretation by the
Courts.

"The word 'effects' in its primary and ordinary meaning includes
only personal estate, goods, movables, and chattel property. It de-
notes property in a more extensive sense than goods, and includes
all kinds of personal property. But in its broadest sense of prop-
erty or worldly substance it may include land, and should be so
construed when it appears from other parts of the will that such
was the testator's intention." ^

It was alleged in the original petition for probate that
the deceased left surviving him five children, one of whom
has attained his majority. But there is no evidence or
suggestion of an intention or expression on the part of the
deceased that any of these should share in the estate. The
testator having mentioned only his wife, having included
no residuary clause, and having specified no other property
or beneficiary, must, we think, have intended by using the
phrase "all my valuables" to leave his entire estate, real
and personal, to his widow. In other words we consider
his direction by that phrase not less comprehensive than
if he had said "all my effects" which, it has been seen,
may include all property. That such was the intention
seems clear and, in the interpretation of wills, the testator's
intention is the pole star.*

It appearing from the affidavit of the publisher that
mo.e than the statutory six months have elapsed since the
publication of notice to creditors and it appearing also
from the petition now before us that "no claims or de-
mands whatsoever have been presented" it is ordered that
claims against the said estate be and the same are hereby
barred and the Administrator cum testamento annexo is
directed to distribute the assets of said deceased, after pay-
ing the expenses of administration, to the beneficiary named
in the will, viz., Edna Enow Turner, widow of the deceased.

' Id., 1527.

*Bispham, Principles of Equity (7th ed.), sec. 65.

634 I EXTRATERRITORIAL CASES.

IN THE UNITED STATES COURT FOR CHINA.
United States v. H. C. Sandage.

[Cause No. 559; filed January 25, 1917.]

SYLLABUS.
(By the Court.)

1. CRIMINAL PROCEDURE: NOLLE PROSEQUI: TiME. A motion for

Nolle Prosequi may be made at any stage of a criminal cause.

2. Id. : Id.: Grounds. Where such motion is based upon newly dis-

covered evidence convincing the prosecutor that there is a
reasonable doubt of the accused's guilt, and w^here reparation
has also been made to the offended party who expresses him-
self satisfied therewith, such motion will ordinarily be sustained
as of course.

Earl B. Rose, Esq., Special U. S. Attorney, for the prose-
cution.

Lieut. W. B. Jupp, Naval Judge Advocate, contra.

Lobingier, J.:

The accused, an enlisted man in the United States Navy,
is charged in this cause with

"the crime of Assault: in that the said H. C. Sandage, on or about
the 27th day of October, 1916, at Shanghai, in the Republic of
China, and within the jurisdiction of said Court, did, without just
cause or excuse assault one, Tsau Tsung Chun, a citizen of the
Republic of China, by striking said Tsau Tsung Chun with a glass
jar or bottle and thereby injuring him."

The injury suffered by the complaining witness was a
very serious one — no less than the loss of his right eye —
and the circumstances under which he lost it are prac-
tically undisputed except as to the identity of the assailant.
The affair occurred at an exchange shop and originated in
a dispute over the amount which the assailant was to
receive in exchange for what the prosecution's witnesses
call "a discount dollar." The complaining witness was an
assistant in the shop and his employer and a relative of
the latter who says he was visiting there, all testify that
the assailant seized a glass jar from the counter and struck
the complaining witness in the face, thus causing the loss
of the eye.

UNITED STATES V. SANDAGE, JAN. 25, 1917. 635

The accused pleaded not guilty and on the trial testified
that he was not present at the time of the assault. The
other witnesses were all agreed that the assailant was a blue
jacket but not all were agreed that defendant was the one.
Since the trial the Prosecuting Attorney has found another
party who claims to have been an eye witness of the affair
and who makes affidavit that

"I have on this day seen the accused, H. C. Sandage, in the
American jail, and am positive that he is not the man who took part
in the fight" * * *.

Based partly upon this affidavit the Prosecuting Attorney
now files a motion for nolle prosequi, reciting inter alia:

"from other testimony, and the testimony of some of the other
witnesses produced by the prosecution, it would appear that there
is a reasonable doubt as to the identity of the United States blue
jacket who assaulted the said Tsau Tsung Chun on the date afore-
said, and that there is a reasonable doubt as to the guilt of the
accused ;

"That on the 6th day of January, 1917, the sum of Mexican dollars
Six Hundred and Ninety-two ($692.00), United States gold dollars
Five (G$5.00), and Philippine Pesos Five (f*=5), which had been
subscribed by the officers and crew of the United States Ship
'Brooklyn,' was paid to the complaining witness as compensation
for the injury and damages which had been caused by the said
assault;

"That on the 15th day of Jainuary, 1917, the said Tsau Tsung Chun
filed herein a statement wherein he alleges that it is his belief that
the said payment of said sums is full and satisfactory compensa-
tion for the injury which he had received and that by the said pay-
ment and by the fact that the said H. C. Sandage had been in con-
finement since the 7th day of November, 1916, to the date hereof,
complete justice has been done herein;

"That the applicant believes that after due diligence and careful
investigation all the evidence which is available which would tend
to show that the accused is either innocent or guilty of the crime
ay charged has been produced and shown to this Honorable Court;

"Now therefore the applicant herein respectfully moves the Court
that inasmuch as complete reparation has been made to the com-
plaining witness for the injury and damage caused by the assault
herein alleged, and inasmuch as there is and appears to be a reason-
able doubt as to the guilt of the accused of the crime herein charged,
this cause be dismissed." * * *

A motion for nolle prosequi, after the trial, is somewhat
unusual but it is not, on that account, irregular. Indeed

636 I EXTRATERRITORIAL CASES.

it may be presented and granted even after verdict,' and
w^hile the Court's consent is generally required it is or-
dinarily granted as a matter of course.- For v^here the
prosecuting officer, who usually hears but one side of the
cause, and is certainly not biased in favor of the accused,
reaches the conclusion that there is a reasonable doubt
of the accused's guilt, it is hardly ever likely that the
Court will find otherwise.

In this cause there is the additional circumstance that
the complaining witness has been reimbursed far beyond
his expectations and expresses himself thoroly satisfied
with the result. We have, therefore, no hesitation, in
following the usual practice and granting the motion tho,
of course, this will not preclude further proceedings against
the real culprit should he subsequently be detected. Let a
Nolle Prosequi be entered : and the accused be discharged
from custody with costs de officio.

IN THE UNITED STATES COURT FOR CHINA.

Karl Schnabel & Carl Otto Gaumer, Co-partners under
the name and style of Schnabel, Gaumer & Co., Plain-
tiffs, v. Garland Steamship Company, Defendant.

[Cause No. 563; filed March 7, 1917.]

ON MOTION TO QUASH THE SERVICE.

SYLLABUS.
(By the Court.)

1. STATUTES: SUITABILITY. A statute which in effect exempts all

corporations from civil process except in the district of their
origin cannot be considered "suitable" to conditions in China.

2. PROCESS: Jurisdiction. Merely leaving M^ith one party a sum-

mons intended for another is not an exercise of jurisdiction
over the former.

^ Encyclopedia of Pleading & Practice, X, 563.
Maine. State v. Smith, 67 Me., 328.
Massachusetts. Com. v. Tuck, 20 Pick., 356.
Vermont. State v. Roe, 12 Vt., 93.
' Ency. PI. & Pr., X, 557.

SCHNABEL V. STEAMSHIP CO., MAR. 7, 1917. 637

3. Id. : Service. A corporation which selects an agent in this juris-
diction is bound by a proper summons left with the latter who,
by accepting the agency, undertakes to receive and transmit
such summons.

Joseph W. Rice, Esq., for the motion.

Messrs. Fleming & Davies, by Mr. Fleming, contra.

LOBINGIER, J.:

This is a motion to quash or vacate the service of sum-
mons in the cause before us on the follow^ing grounds:

"First: Because the return of the marshal on said writ purports
to show service on the defendant had by serving said writ on the
Agent only of the defendant.

"Second: Because it appears from the said return of the marshal
on said writ, and the petition attached thereto, that the said service
was attempted to be made, and purports to be made, thru and
on the British-American Tobacco Company, Limited, a British cor-
poration, as agent for the defendant, and this Court having no juris-
diction or authority over baid British- American Tobacco Company,
Limited, said service is null and void."

The Marshal's return reads as follow^s:

"I hereby certify that I received the within writ on the 25th day
of January, 1917, and that on the 26th day of January, 1917 at
11 o'clock forenoon, I personally served the writ upon the Garland
Steamship Company by showing the original and delivering a copy
of the writ and a copy of the petition filed in the within entitled
action to Samuel Tx'umper, attorney in fact and principal represent-
ative in Shanghai of the British-American Tobacco Company, Ltd.,
Agents for the Garland Steamship Company.'

Counsel presenting the motion relies in support of the
first ground mainly upon a statute ^ w^hich provides :

"no person shall be arrested in one district for trial in another
in any civil action before a circuit or district court; and no civil
suit shall be brought before either of said courts against any person
by any original process or proceeding in any other district than
that whereof he is an inhabitant; but where the jurisdiction is founded
only on the fact that the action is between citizens of different
States, suit shall be brought only in the district of the residence of
either the plaintiff or the defendant."

'Act of March 3, 1887, Sess. II, 24 U. S. Stats, at Large, Ch.
373, sec. 1.

538 I EXTRATERRITORIAL CASES.

But we have already held - that the jurisdiction of this
court is not dependent upon the residence of the parties,
and the above provision is wholly inconsistent with the
paragraphs of the Court Regulations of 1897, which prevail
here even over acts of Congress.^

Besides only such "laws of the United States" are ex-
tended here as are "suitable" and "necessary to execute
such treaties" * and we do not see that this is either. To
hold that no corporation can be sued here unless it is an
"inhabitant" — i. e., was organized here ■' — would in effect
exempt all corporations from the service of process, for
no American concern has yet been incorporated in China,
and a statute which would entail such consequences is not,
in our judgment, "suitable" to the situation here and much
less "necessary to execute the treaties." Far more adapted
to our conditions, we think, is that latest expression of
Congress" on the subject under which the service assailed
seems to have been made; and which may be applied here
provisionally at least:"

"In actions against foreign corporations doing business in the Dis-
trict all process may be served on the agent of such corporation
or person conducting its business, or, in case he is absent and can
not be found, by leaving a copy at the principal place of business
in the District, or, if there be no such place of business, by leaving
the same at the place of business or residence of such agent in said
District, and such service shall be effectual to bring the corporation
before the Court."

We are unable to attach much weight to the opinion, cited
by counsel, of a claim examiner of the Department of State,
and written about a half century ago with reference to a
case against a corporation in a consular court in Japan

"that the presence at Kanagawa of an agent of the steamship com-
pany did not make the corporation, which had its legal seat in New

^ Everett v. Swayne & Hoyt, ante, p. 600.

' U. S. V. Engelbracht, ante, p. 169.

* U. S. Rev. Stats., sec. 4086.

' Shaw V. Quincey Mining Company, 145 U. S., 444, 36 L. ed., 768.

"Act of Congress of March 3, 1901, Sess. II, 31 U. S. Stats, at
Large, Ch. 854 (District of Columbia Code), sec. 1537. Cf. Act of
Congress of June 6, 1900, Sess. I, 31 U. S. Stats, at Large, Ch. 786,
Tit. II, sec. 46.

' Biddle v. U. S., ante, p. 120.

SCHNABEL V. STEAMSHIP CO., MAR. 7, 1917. 639

York, an inhabitant or sojourner in the consular district so as to
give jurisdiction of an action in personam." '

This view does not appear to have been adopted even by the
State Department itself and it seems wholly inconsistent
with the doctrine subsequently announced by the Supreme
Court in an opinion ^ which contains the following language :

"The manifest injustice which would ensue, if a foreign cor-
poration, permitted by a State to do business therein, and to bring
suits in its Courts, could not be sued in those courts and thus, while
allowed the benefits, be exempt from the burdens, of the laws of the
State, has induced many States to provide by statute that a foreign
corporation making contracts within the State shall appoint an agent
residing therein, upon whom process may be served in actions upon such
contracts. This court has often held that wherever such a statute
exists service upon an agent so appointed is sufficient to support
jurisdiction of an action against the foreign corporation, either in the
courts of the State, or, when consistent with the acts of Congress,
in the courts of the United States held within the States; but it has
never held the existence of such a statute to be essential to the juris-
diction of the Circuit Courts of the United States."

II.

The objection that the service is "void" because this
Court has "no jurisdiction or authority over said British-
American Tobacco Company, a British corporation" upon
which "as agent for the defendant" the service was made,
involves, we think, a misconception of the nature of such
service as well as of jurisdiction. The latter "has often
been defined by the Supreme Court as the power to hear
and determine;"" but clearly this court did not exercise,
nor attempt to exercise, any such power over said agent
merely by authorizing. an officer to leave with said agent
a paper which at most notified its principal to appear. We
doubt if this was even an exercise of jurisdiction over the

* Moore, International Law Digest, II, p. 602.

° Barrow Steamship Company v. Kane, 170 U. S., 100, 42 L. ed.,
964. Cf. the opinion of Lowell, J., in Hayden v. Androscoggin Mills,
1 Fed., 93 that "a trading corporation may be said to be personally
present for the purposes of an action wherever it has an established
place of trade. This was so decided in England on principle, and
as a new question, as late as the year 1872. Newby v. Von Oppen,
L. R. 7 Q. B., 293." See also Everett v. Swayne & Hoyt, ante, p. 600.

"LeRoy v. Clayton, 2 Sawy., 493, 15 Fed. Cas., 358, 360, citing
Grignon's Lessees v. Astor, 2 How. (U. S.), 319, 11 L. ed., 283.

540 I EXTRATERRITORIAL CASES.

defendant, for such a service is merely one of the steps
by which jurisdiction is acquired ^' and it could hardly
be exercised before that. Besides the service of a summons
which merely notifies a party to appear is a very different
act from the service of criminal process, like a warrant of
arrest, or even of certain civil process like a subpoena or
an attachment of property. The execution of such writs
might constitute an exercise of jurisdiction without im-
puting that character to the mere leaving of a notice direct-
ing a party to appear.

The suggestion that the agent might not have forwarded
the summons to defendant is one for the latter to consider
for it alone must accept the consequences. In effect the
law says to it: When you select an agent in this jurisdic-
tion you thereby designate one with whom a summons for
you may be left and his failure to deliver it will not relieve
you. Of course this Court will not undertake to punish a
foreign agent for such dereliction, but it must, nevertheless,
hold the defendant responsible for its own selection.

On the other hand to the further suggestion that the
Marshal commits a trespass by entering the premises of an
agent of another nationality in order to leave the summons,
we think it sufficient to say that such entrance is invited
when the owner of i\\Q premises accepts agency which
includes the transmission of process. Much less than that
constitutes an implied license to enter. ^-

The whole arrangement here is analogous to that by
which lawyers of other nationalities are permitted to prac-
tice in this Court. They then become amenable to its rules.
If an American litigant employs them he is bound by their
acts and notice to the attorney is notice to him.

In disposing of this motion we have considered the pe-
tition as well as the return; both because the former was
served with the writ and may therefore be treated as a
part thereof and because only by including the petition
do the questions presented properly appear. For the re-

" Robertson v. State, 109 Ind., 79, 10 N. E., 582, citing Herman on
Estoppel, sec. 69.
" Cyc, XXV, 642.

WONG VUN RUNG V. MORSE, MAR. 10, 1917. 641

turn alone fails to show that the agent is a British corpora-
tion or even that the defendant is a corporation.

Finding both of its grounds insufficient the motion to
quash is

OVERRULED.

IN THE UNITED STATES COURT FOR CHINA.
Wong Vun Kung, Plaintiff, v. Gordon S. Morse, Defendant.

[Cause No. 541; filed March 10, 1917.]

SYLLABUS.

(By the Court.)

1. PUBLIC POLICY. An agreement having for its object an attack

on the peace or sovereignty of a friendly Power is unenforcible
as against any of the parties thereto.

2. Id. : Recovering Payments. But money entrusted by one of said

parties to an agent to be paid on such contract may be re-
covered back before payment.

3. PARTIES: JOINDER. In an action against the guarantor of a

promissory note it is not necessary to join the principal espe-
cially if he is in another jurisdiction.

Messrs. Jernigan & Fessenden, by Mr. Fessenden, for
plaintiff.

Messrs. Fleming & Davies, by Mr. Flemirig, for defendant.

LOBINGIER, J.:

This is an action to recover on two promissory notes,
for amounts aggregating $15,000 Mexican, executed by one
A. M. Baldwin but guaranteed by defendant. The cause is
submitted on the pleadings, the petition containing a copy
of the notes and the usual averments of nonpayment, all
of which are admitted by the answer which alleges :

"that prior to the date, execution and delivery of the promissory
notes mentioned in the petition herein the said plaintiff entered into
an agreement vi^ith certain persons whose names are to this defendant
unknown for the purchase of firearms to be used in armed rebellion
against the Government of the Republic of China and that as a part
of the same transaction one A. M. Baldwin, the maker of said notes,
was induced by the said plaintiff and others to act as depositary

14008 O. W. 41

642 I EXTRATERRITORIAL CASES.

of the funds to be used as the consideration for said sale of firearms
for the purposes aforesaid; and as an agent in paying the same over
to the vendors of such firearms; and that the said A. M. Baldwin
was then fully informed of the purpose of such deposit and pay-
ment and the uses to which said firearms were to be put; that the
promissory notes mentioned in the petition herein were given by the
said Baldwin to the plaintiff in an accounting between the said plain-
tiff and the said Baldwin in connection with the transaction afore-
said."

The replication avers that the guarantor

"was not a party to any contract for the purchase of firearms set
forth in said answer and that notwithstanding any of the matters
set forth in defendant's answer the said promissory notes are not
illegal," etc.

It is a well-settled principle of American law that an
agreement having for its object an attack on the peace
or sovereignty of a friendly power is contrary to public
policy and unenforcible.^ If, therefore, plaintiff were seek-
ing to recover from the other party thereto instalments
advanced on the contract set forth in the answer the ques-
tion could easily be resolved. But the replication's aver-
ment that defendant's principal "was not a party to any
(such) contract" is undenied and if either is to be absolved
from his written obligation it must be upon the averments
that the principal was "induced to act as depositary of the
funds, to be used as the consideration for said sale of
firearms * * * and as an agent in paying the same
over to the vendors;" that he "was then fully informed
of the purpose of such deposit" and that the notes in suit
were given by him "in an accounting between the said
plaintiff and the said Baldwin in connection with the trans-
action aforesaid."

A line of English decisions, originating in the eighteenth
century and generally followed in America, permits recovery
by the principal from his agent, of money in the latter's
hands for payment on an illegal agreement to which he
was not a party. In the first - of these cases where the

'Kennett v. Chambers, 14 How. (U. S.), 38, 14 L. ed., 316, relative
to purchase of arms for use against Mexico. Cf. Toeg & Read v.
Suffert, ante, p. 112.

= Tenant v. Elliot, 1 Bos. & Pul., 3 (1797).

WONG VUN KUNG V. MORSE, MAR. 10, 1917. 643

insured and another had entered into an illegal agreement
regarding insurance, the insurer, after loss, had paid the
proceeds to a third party for the insured's benefit. The
illegality of the agreement was held not to justify the de-
positary in retaining the money as against the claims of the
insured.

In the year following a similar case " came before the
same court and the Lord Chief Justice (Eyre) said:

"The case therefore is brought to this, that the money is got into
the hands of a person who was not a party to the contract, who has
no pretence to retain it, and to whom the law could not give it by
rescinding the contract. Tho the court will not suffer a party to
demand a sum of money in order to fulfil an illegal contract, yet
there is no reason why the money in this case should not be recovered
notwithstanding the original contract was void."

Both of these cases have been cited with approval by
the Federal Supreme Court "* and that eminent tribunal has
commented on the first case as follows:

"In such case clearly the defendant had nothing whatever to do
with the illegality of the original contract. He received the money
to be paid to another, and when he received it for that purpose he
promised, either expressly or by implication arising from the facts,
that he would deliver the money to the plaintiff, and when he refused
to do it the plaintiff could recover upon this express or implied con-
tract, without resorting in any manner to the original contract be-
tween himself and another, which in its nature was illegal, but which
the defendant was in nowise concerned with." "

The Supreme Court of Pennsylvania at an early day
applied the principle to the familiar case of illegal wagers
and authorized recovery from the stakeholder altho

"To the act of wagering on an election, the act of assembly not
only annexes a penalty, but in terms declares the contract to be
void." "

'Farmer v. Russell, 1 Bos. & Pul., 295 (1798).

'McBlair v. Gibbes, 17 How., 232, 15 L. ed., 132 (1854); Brooks.
V. Martin, 2 Wall., 70, 17 L. ed., 732; Armstrong v. American Ex-
change Nat. Bank, 133 U. S., 433, 33 L. ed., 747, 10 Sup. Ct. Rep., 450.

' McMullen v. Hoffman, 174 U. S., 639, 658, 43 L. ed., 1117, 19 Sup.
Ct. Rep., 839, affirming 83 Fed., 372.

•McAllister v. Hoffman, 16 S. & R., 147 (1827). Cf. Hastelow v.
Jackson, 8 B & C, 221.

644 I EXTRATERRITORIAL CASES.

Shortly afterwards the highest court of Massachusetts
allowed the beneficiaries of a fraudulent conveyance, void as
against creditors, to recover the sequestered property from
one who had agreed to hold it for them on the ground

"that whatever fraud there was in the original transaction, it was
between other parties, and in which the plaintiffs did not partici-
pate." '•

On upholding a bill in equity to recover money paid a
broker for a lottery' ticket the Connecticut court '^ said :

"if the cause of action be unconnected with the illegal act, and is
founded upon a distinct and collateral consideration, it will not be
affected by their former unlawful conduct.^ * * m=

We do not admit the claim of the defendants, that this bill can-
not be sustained, without proving and relying upon what is claimed
to be the original illegality."

Profits under a partnership contract, confessedly against
public policy, were declared by the Federal Supreme Court
recoverable from one who held them.

"Does it lie in the mouth of the partner who has, by fraudulent
means obtained possession and control of all these funds," asks Mr.
Justice Miller,^" "to refuse to do equity to his other partners, because
of the wrong originally done or intended to the soldier? It is dif-
ficult to perceive how the statute, enacted for the benefit of the soldier,
is to be rendered any more effective by leaving all this in the hands
of Brooks, instead or requiring him to execute justice as between
himself and his partner; or what rule of public morals will be
weakened by compelling him to do so."

In a case ^^ much like this where plaintiff was a party
to an illegal agreement and had given defendant a sum to

'Fairbanks v. Blackington, 9 Pick., 93 (1829).

'Phalen v. Clark, 19 Conn., 421, 50 Am. Dec, 253 (1849).

'Citing Booth v. Hodgson, 6 T. R., 405; Ex Parte Bell, 1 Mau. &
Sel., 752; Simpson v. Bloss, 7 Taunt., 246, S. C, 2 Eng. Com. L., 346;
Fivaz v. Nicholls, 2 Man. G. & S., 501, 513; 52 Eng. Com. L., 500;
Bartle v. Coleman, 4 Pet., 184, and other cases cited above.

" Brooks V. Martin, 2 Wall., 70, 17 L. ed., 732, following Sharp v.
Taylor, 2 Phillips (22 Eng. Ch.) , 801.

" Kiewert v. Rindskopf, 46 Wis., 481, 32 Am. Rep., 731, 1 N. W.,
163 (1839). Cf. Douville v. Merrick, 25 Wis., 688; Lemon v. Gross-
kopf, 22 Wis., 447, 99 Am. Dec, 58, and note.

WONG VUN KUNG V. MORSE, MAR. 10, 1917. 645

be paid thereon to the other party the Supreme Court of
Wisconsin held that any amount not so paid could be re-
covered from the agent. The following language from the
opinion is pertinent here :

"The maxim, in pari delicto, potior est conditio possidentis, has
application only, as between the immediate parties to an illegal con-
tract, and does not govern where the action is brought by one of
such parties to recover money received by a third party, in respect
of his illegal contract. * * *

"While the money remains in the hands of the agent, notwith-
standing such agent may have received it for the purpose of using
it or paying it out, in pursuance of an illegal contract between his
principal and a third party, and has been directed to so use or pay
it, there appears to be no reason for making an exception to the law
governing the relation between principal and agent, for such case,
which would prevent the principal from countermanding such direc-
tions, and revoking the authority of the agent and recovering the
money."

A similar doctrine has been applied in other jurisdic-
tions ^^ and one '^ of the two cases cited by defendant on
this point recognizes it in the following language :

"The general rule is well settled that where an agent receives
money for the use of his principal he cannot be heard to say, when
called to account, that the transaction between the principals out
of which the money grew was illegal."

The doctrine was held inapplicable both in that and the
other case " cited by defendant because both parties were
also considered parties to the illegal transaction itself and
were therefore not within the scope of the doctrine. Some

^ MissouH. Roselle v. Beckemeir, 134 Mo., 380, 35 S. W., 1132.

Montana. Owens v. Davenport, 39 Mont., 555, 104 Pac, 682, 28
L. R. A. (N. S.), 996, and note.

Tennessee. Bendet v. Ellis, 120 Tenn., 277, 111 S. W., 795, 18 L.
R. A. (N. S.), 114, 127 Am. St. Rep., 1000.

Texas. Jageman v. Necco (Civ. App.), 59 S. W., 822.

See 9 Cyc, 558, note 91, and Ginsburg & Co. v. Zimmerman, ante,
p. 133.

"Nave V. Wilson (12 Ind. App. 38), 38 N. E., 876. The doctrine
had been previously recognized in that jurisdiction. See Daniels v.
Barney, 22 Ind., 207.

" Samuels v. Oliver. 130 111., 73, 229 N. E., 499.

()46 I EXTRATERRITORIAL CASES.

cases ^^ indeed are not easy to reconcile with it but in view
of its general acceptance and especially of its adoption by
the Federal Supreme Couit we have no doubt of our duty
to apply the doctrine here.

It being admitted, as we have seen, that defendant's prin-
cipal was not a party to the illegal transaction, but received
and held as a mere agent the money to account for which
the notes in suit were executed we cannot regard the aver-
ment that these were given "in connection with such trans-
action" as meaning any more direct connection than such
agency would involve. As the Supreme Court says:

"An obligation will be enforced, tho indirectly connected with an
illegal transaction, if it is supported by an independent consideration,
so that the plaintiff does not require the aid of the illegal transaction
to make out his case." "

Here the plaintiff was "able to make out his case" with-
out showing the transaction for his petition contains no
mention of it and there must have been an "independent
consideration" for the notes. The case appears, therefore,
to be clearly within the doctrine of the authorities above
reviewed and we must find that plaintiff is entitled to re-
cover thereon against the defendant as guarantor. It was
not necessary to join the principal '' especially since it is
admitted that he is not within the jurisdiction.^^

It is therefore considered and adjudged that plaintiff have
and recover from the defendant the sum of fifteen thousand

" E. g., Woodson v. Hopkins, 85 Miss., 171, 70 L. R. A., 645, over-
ruling Gilliam v. Brown, 43 Miss., 641. Cf. Sykes v. Beadon, 11 Ch.
Div., 170, 48 L. M. J. Ch. 522, 40 L. T. Rep. (N. S.), 243, 27 Wkly.
Rep., 464, criticising Sharp v. Taylor, 2 Phillips (22 Eng. Ch.), 801.

'" Armstrong v. American Exchange Nat. Bank, 133 U. S., 433, 33
L. ed., 747, 10 Sup. Ct. Rep., 450, citing Armstrong v. Toler, 11 Wheat.
(U. S.), 258, 6 L. ed., 468; Faikney v. Reynous, 4 Burrow, 2069; Petrie
V. Hannay, 3 T. R., 418; Farmer v. Russell, 1 B. & P., 296; Planters'
Bank v. Union Bank, 16 Wall., 483, 21 L. ed., 473; McBlair v. Gibbes,
17 How., 232, 236, 15 L. ed., 132; Brooks v. Martin, 2 Wall., 70, 17 L.
ed., 732; Bly v. Bank, 79 Pa. St., 453.

"Cyc, XX, 1450.

'^Id., 1455.

IN RE BONNELL'S WILL, MAR. 10, 1917. 647

dollars (15,000) Mexican currency, together with his costs.
There will be no allowance of interest since the notes ex-
pressly except it.

IN THE UNITED STATES COURT FOR CHINA.
In re Cornelia L. Bonnell's Will.

[Cause No. 572; filed March 10, 1917.]
SYLLABUS.

(By the Court.)

I.WILLS: Place of Subscription. Where the signature erf the tes-
tator appears in the last clause of the will instead of at the
end the instrument is not invalidated thereby.

2. Id. : Witnesses. Nor is it fatal to such instrument that one of

the subscribing witnesses, in no way benefiting therefrom, is
named executrix.

3. Id.: Preparation. The importance of care, and of securing expert

assistance in the preparation of wills, emphasized.

Lobingier, J.:

There is presented for probate in this proceeding an
instrument purporting to be the last will and testament
of the above named deceased. The instrument is a printed
form with blanks filled in and seems to be regular except
that the signature of the testator does not appear at the end.
Instead, however, the last clause reads as follows :

"In witness whereof, I, the said Cornelia Leavenworth Bonnell,
have to this my Last Will and Testament set my hand the Fourth
day of February in the year of our Lord One Thousand Nine Hun-
dred and One."

According to the testimony the name was inserted in said
clause by the testator herself. It further appears that
the blank was procured at her request by one of the wit-
nesses, that she asked them to attest it, and showed her in-
tention to make it her will. The question arises whether
its validity is affected by the position of the signature. On

648 I EXTRATERRITORIAL CASES.

this point the law is stated in a work of recognized authority
as follows:

"Where the statute relating to signing requires no more than
the statute of frauds — merely when the will shall be in writing
and be signed, it is immaterial where the testator's signature was
placed, if it was placed there with the intention of authenticating
the instrument." ^

Accordingly it has been held that a will is not invalid even
tho the signature of the testator appears only at the begin-
ning 2 or in 3 or after * the attestation clause.

Acts of Parliament ■' and of certain American state leg-
islatures ^ require the signature of the testator to appear
at the end of the will ; but no such legislation is in force
here, the Acts of Congress merely providing that the in-
strument be "signed by the testator" or under his direction.^
In the absence of a more stringent requirement we hold
sufficient the signature to the instrument before us.

II.

Another question arises from the fact that the one named
in the will as executrix is also a subscribing witness. She
is not, however, a beneficiary under the instrument nor
does it appear that she is to receive any compensation as

^Cyc, XL, 1104, 1105.

'England. Le Mayne v. Stanley, 3 Lev., 1, 83 Eng. Reprint, 545-

AlabanM. Armstrong v. Armstrong, 29 Ala., 538.

New York. Watts v. Public Administrator, 4 Wend., 168.

Vermont. Adams v. Field, 21 Vt., 256.

Texas. Lawson v. Dawson, 21 Tex. Civ. App., 361, 53 S. W., 64.

'Matter of Acker, 5 Dem. Surr. (N. Y.), 19.

* Hallowell v. Hallowell, 88 Ind. 251.

° Lord St. Leonard's Act, 15 & 16 Vict. c. 24.

"California. Civil Code, sec. 1276 (from N. Y.) ; In re Seaman's
Estate 146 Cal., 455, 10 Prob. Rep. Ann., 255, 80 Pac, 700.

Kentucky. Statutes (1903), sees. 468, 4288; Ward v. Putnam, 119
Ky., 889, 85 S. W., 179, 7 Ky. L. Rep., 367.

New York. 2 Rev. Stats., p. 63, sec. 40 (from Eng.) ; In re Con-
way, 124, N. Y., 455, 11 L. R. A., 796, 26 N. E., 1028.

' Act of Congress of March 3, 1901, Sess. II, 31 U. S. Stats, at
Large, Ch. 854 (District of Columbia Code), sec. 1626; Act of June
6, 1900, Sess. I, 31 U. S. Stats, at Large, Ch. 726, Tit. Ill, sec.
138 (Alaska Compiled Laws, sec. 564).

IN RE BONNELL'S WILL, MAR. 10, 1917, 649

executrix. In such cases the almost uniform current of
authority is to the effect that the same person may be both
subscribing witness and executor.* In Massachusetts ^ it is
held that the executor is not a competent witness after ac-
cepting the trust; but the will is not invalidated by his
previous attestation.

But while the informalities above mentioned are not fatal
we are far from commending them as examples to be fol-
lowed and, in view of many such defects in similar instru-
ments presented to this Court for probate, we feel con-
strained to call the attention of our nationals generally to the
importance of greater care in such matters. From a legal
standpoint the execution of a will is one of the most im-
portant acts in the course of one's life. For not only does
it dispose of the accumulations of a lifetime but its con-
sequences may reach far beyond and affect the title to prop-
erty and the interests of individuals for an indefinite
period. Necessarily too, the technical requirements are
matters of expert knowledge and only those possessing it
should be entrusted with the task of drafting such in-
struments.

We find from the evidence:

1. That Cornelia Leavenworth Bonnell died on October 12, 1916,
at Shanghai, China, where she had long resided but that she was
a citizen of the United States.

2. That she left property appearing to be of greater value than
$500 U. S, currency.

' England. Lowe v. Joliffe, 1 W. Blackstone, 365 ; Phipps v. Pitcher,
6 Taunt., 220; Bettison v. Brompey, 12 East, 250; Goodtitle v. Welfred,
Douglass, 139.

California. Panaud v. Jones, 1 Cal., 488, 506.

Connecticut. Hawley v. Brown, 1 Root, 494.

New Jersey. Snedekers v. Allen, 2 N. J. L., 32, 41.

Such is also the Spanish Law. Febrero, Mejicano, II, p. 6, sec. 8.

In Williams v. Wells, 1 Hayw. & H. (D. C), 116, 29 Fed. Cas.,
1417, the Circuit court admitted to probate a will which named the
subscribing witnesses as guardians of testator's children. This ac-
tion was reversed on appeal but no authorities were cited and it
would seem that the guardians were to be compensated.

° Sears v. Dillingham, 12 Mass., 358. Cf. Durant v. Starr, 11 Mass.,
527.

(350 I EXTRATERRITORIAL CASES.

3. That the instrument attached to the petition is her last will
and testament and entitled to probate as much.

It is accordingly admitted to probate and Letters Testamentary
are directed to issue to the party named therein as executrix, upon
her taking the oath and executing a proper bond in double the value
of the assets as required by law; but with the condition that, hav-
ing been a witness to the will, she shall receive no compensation for
her services as executrix.

IN THE UNITED STATES COURT FOR CHINA.
In re John H. Dadisman's Will.

[Cause No. 570; filed March 12, 1917.]
SYLLABUS.

(By the Court.)

1. EVIDENCE: DIRECT PROOF OF DEATH is not required; circumstantial

evidence is sufficient and in a civil case only a preponderance
is necessary.

2. Id. : Presumptions. There is a presumption of the continuance of

life for seven years after one's disappearance; but this may
be overcome by the presumption of good faith and innocent
conduct.

3. Id. : Weight. Evidence reviewed and found sufficient to justify a

finding that the testator is dead.

Stirling Fessenden, Esq., for the proponent.

LOBINGIER, J.:

The petition in this proceeding contains the usual aver-
ments for the probate of a will and inter alia that the
testator "died in China on or about the 9th day of February,
1917." There is no direct proof of death, i. e., no one has
been found who saw the testator die or dead but that is
not necessary; circumstantial evidence will suffice to prove
that as any other fact,^ and in a civil case like ti-.is a
preponderance of evidence is sufficient. Nor is it claimed
that the testator has been absent for a period approaching
that required in order to raise the presumption of death,
which is seven years." But again such absence is not nec-

*Cyc., XIII, 305; Boyd v. N. E. Mut. L. Ins. Co., 34 La. Ann., 845.
= Cyc., XIII, 298.

IN RE DADISMAN'S WILL, MAR. 12, 1917. 651

essaiy ; for the circumstances may be such as to warrant a
finding that death occurred within a much briefer period.
As was said by an eminent judge in a well reasoned opinion :

"The established presumption of fact from the disappearance of
an individual under ordinary circumstances, from whom his relatives
and acquaintances have never afterwards heard, is that he continues
to live for seven years after his disappearance. If this presumption
was unaffected by countervailing facts, it would continue in the
case at bar until August 22, 1899; but this presumption of fact is
not conclusive. It may be overcome, not only when the testimony of
those who saw the insured die or saw his body after his death is
produced, or when he was last seen in a peril that might probably
cause his death, but also when all the facts and circumstances of
the case — the possible motives, if any, of the lost one to absent and
conceal himself in view of approaching failure, disgrace, or punish-
ment, his possible motives, if any, for returning to his family and
occupation, his attachments to the members of his family and his
friends, his interest and prospects in his business or occupation, and
the extent of the unavailing search that has been made for him —
are such that they would take the case out of the category of an
ordinary disappearance, and would lead the unprejudiced minds of
reasonable men, exercising their best judgment, guided by the estab-
lished rule that life is presumed to continue seven years after an
unexplained disappearance, to the conviction that death had inter-
vened at an earlier date".'

In the case at bar the testator, who was a Secretary of the
Young Men's Christian Association, had, according to the
testimony, been suffering from ill health, including insomnia,
for a considerable time and had been compelled to suspend
his work. Sickness in his family and other troubles appear
to have preyed upon his mind and he was subject to spells
of intense depression, so that, as he stated to one of his
physicians (Dr. Peter), ''Sometimes I had to reach up to
touch bottom."

As a result of these, he confessed to no less than three
persons, the idea of self-destruction had come to him and

' Federal. Sanborn, J., in Northwestern Mutl. L. Ins. Co. v. Stevens,
71 Fed., 258. See also Davie v. Briggs, 97 U. S., 628, 24 L. ed., 1084.

Iowa. Tisdale v. Conn. Mut. Ins. Co., 26 la., 170, 96 Am. Dec, 136.

Louisiana. Boyd v. N. E. Mut. L. Ins. Co., 34 La. Ann., 848.

Minnesota. State v. Plym, 43 Minn., 385, Thayer's Cas., 60, 45 N.
W., 848; Waite v. Coaracy, 45 Minn., 159, 47 N. W., 537.

Nebraska. Cox v. Ellsworth, 18 Neb., 664, 26 N. W., 460.

652 I EXTRATERRITORIAL CASES.

SO late as January 28, less than two weeks before his disap-
pearance, he stated to his wife, referring to a prospective
journey, that he had thought of stepping off the boat. There
is also testimony of insanity in his family.

Early in February, he left with two companions for a trip
to Ningpo during which his demeanor is described as quiet.
An incident of the journey was a quarrel between two
Chinese, one of whom tried to drown. On the return trip
he dined with his companions but failed to join in their
conversation. He retired to his cabin (which he occupied
alone) about 9 p. m. and has not been seen since. The
ship reached port about 4 a. m. and, of the five foreign
passengers, the testator's companions went ashore about 5
a. m. and the other two about 6, but no one saw the tes-
tator leave tho some of the Chinese crew were on watch
most of the time. Before leaving the ship one of his com-
panions went to testator's cabin and found it unoccupied
but his clothes there and assumed that he had gone to the
toilet room. When he failed to appear his effects were re-
moved and all clothes which he had taken with him were
found in his cabin with the exception of night wear and a
sweater.

It is, of course, possible that after the ship docked, the
testator might have left it thru one of the lower exits;
but in that case even if he had escaped the notice of the crew,
who were then stirring, and had gone ashore in night at-
tire he would naturally soon have been observed and re-
ported; or even if he had obtained Chinese clothes (and
that would have been difficult without disclosure) the dis-
guise could hardly have been continued long. In this land
of curiosity and rumor such an incident would hardly pass
unnoticed and considerably more than a month has now
elapsed without the semblance of tidings. Moreover such
a course would imply a voluntary and premeditated flight
and for that no motive has been suggested. Indeed such
an explanation seems the most unnatural of all. As was
said in a leading case * already cited :

"No greater wrong could be done to the character of the man than
to account for his absence, even after the lapse of a few short months,

* Tisdale v. Conn. Mut. L. Ins, Co., 26 la., 170, 96 Am. Dec, 136.

IN RE DADISMAN'S WILL, MAR. 12, 1917. 653

upon the ground of a wanton abandonment of his family and friends.
He could have lived a good and useful life to but little purpose
if those vi^ho knew him could even entertain such a suspicion. The
reasons that the evidence above mentioned raises a presumption of
death are obvious; absence from any other cause, being without
motive and inconsistent with the very nature of the person, is im-
probable. It is suggested in argument that such absence may be
on account of insanity. That may be possible but as death under
such circumstances is more probable than insanity in the absence of
evidence thereof, the law raises a presumption of death."

For while there is a presumption of life there is also a
presumption of good faith and innocent conduct "' and under
circumstances like those here proved it would seem that

"the presumption of the continuance of life mujit yield to the stronger
presumption of innocence." °

The finding of the trial Judge in another leading case '
whose facts were closely parallel to these was :

"I do not pretend to assert that the death of Clotworthy Boyd
has been demonstrated. Indeed, it is possible that he still lives and
is secreting himself. But, after listening attentively to the witnesses
and observing closely their demeanor, I have come to the conclusion,
I am convinced, that Clotworthy Boyd met an untimely end on the
night of 31st July, 1875, and that he is dead."

Paraphrasing this language we are unable to say that the
death of the testator has been demonstrated nor is that nec-
essary. But we are convinced that all signs point to his
having leapt overboard and drowned at sea before his ship
reached port. We consider the evidence, therefore, suffi-
cient to justify us in finding:

1. That John Hunter Dadisman was an American citizen with
property in China sufficient to give this Court jurisdiction in probate
proceedings.

2. That the instrument attached to the petition and presented for
probate is his last will and testament.

3. That he died on or about February 9, 1917.

It is accordingly considered and decreed that said instrument be
admitted to probate and that Letters Testamentary issue to the
petitioner, the one named therein as executrix, upon her taking the
oath and executing a bond as required by law.

" Gaines v. New Orleans, 6 Wall. (U. S.) , 642, 707-8, 18 L. ed., 962.
' State V. Plym, 43 Minn., 385, Thayer's Cas., 60, 45 N. W., 848.
'Boyd V. N. E. Mut. L. Ins. Co., 34 La. Ann., 848.

654 1 EXTRATERRITORIAL CASES.

IN THE UNITED STATES COURT FOR CHINA.
In re Esther Robins' Will.

[Cause No. 577; filed April 26, 1917.]

SYLLABUS.
(By the Court.)

WILLS. The Signature of a testator whose hand is guided by
another constitutes a sufficient execution of a will.

Stirling Fessenden, Esq., for the proponent.

Lobingier, J.:

A petition is hereby presented for the admission to
probate of an instrument purporting to be the last will
and testament of the above named decedent. Two of the
three subscribing witnesses are called and their testimony
suffices to establish the genuineness of the instrument. The
only legal question which appears to arise at this time
occurs by virtue of testimony that the deceased was un-
able to write and that the attorney who drafted the
instrument guided her hand in executing the same. On
this point, however, the law is well settled:

"The signature is not rendered invalid by the fact that another
guided the hand of the testator when he signed the will. Such act
is the testator's own, performed with the assistance of another,
and not the act of another done under the authority of the testator;
and in order to uphold the validity of such signature it is not
necessary that an express request for the assistance be given. It
may be inferred from the circumstances of the case." '

Here the testimony is that the instrument was read over
to the decedent before execution and that she requested
the subscription.

We find from the evidence:

1. That the instrument offered for probate was duly executed by
the said Esther Robins and was intended by her to be her last will
and testament.

2. That at the time of said execution she was of sound mind and
disposing memory and capable of executing such an instrument.

3. That the said Esther Robins died in Shanghai on April 20, 1917,
within the jurisdiction of this Court.

' Cyc, XL, 1104, citing many cases.

U. S. EX REL. RAVEN V. MCRAE, JUNE 9, 1917. 655

It is therefore considered and decreed that the said instrument
be, and it hereby is, admitted to probate as the last will and testament
of Esther Robins, deceased and that Letters Testamentary issue
to the petitioner who is the one named thei'ein as Executrix, upon
her submission to the jurisdiction of this Court, taking the oath and
executing a proper bond as required by law.

IN THE UNITED STATES COURT FOR CHINA.

United States Ex Rel. Raven et al. v. Paul McRae,
Acting Clerk of the United States Court for
China, Respondent.

[Cause No. 586; filed June 9, 1917.]

SYLLABUS,
(By the Court.)

1. LEGISLATION: EXTENSION: WITHDRAWAL. Laws of the United

States extended to China by the Acts of Congress of 1848 and
1860 can be withdrawn only by a similar Act.

2. Id. : Delegation of Power. Congress cannot constitutionally del-

egate to a Territorial Legislature power to withdraw acts thus
extended.

3. Id. : The Corporation Act of Congress of March 2, 1903, appears

to be suitable to conditions in China and necessary to execute
the treaties, and consequently extended here by the above named
Acts.

4. CORPORATIONS: ARTICLES: Filing: Secretary of the District.

The requirements in said Act of 1903 that proposed articles of
incorporation be filed "in the office of the Secretary of the
District" are sufficiently complied with here by filing them
with the Legation.

5. Id. : Court Clerk. The further requirement therein that said

Articles be filed in the office of the Clerk of the District Court
is met by filing them with the Clerk of this Court.

6. Id. : Recording. The said Clerk is required to record only such

articles as ai'e properly filed and only articles which comply
with the law are entitled to be filed.

7. Id. : Sufficiency. Proposed articles of incorporation examined

and found insufficient to meet the requirements of the said act
of 1903.

8. Id. : Mandamus. The Clerk cannot be compelled by mavdamus to

file or record insufficient articles.

Messrs. Fleming & Davies, by Mr. Fleming, for relators.
Earl B. Rose, Esq., for respondent.

656 I EXTRATERRITORIAL CASES.

LOBINGIER, J.:

This is an application for a writ of mandamus to com-
pel the Acting Clerk of this Court to file and record cer-
tain articles of a proposed corporation "to carry on the
business of banking in all its branches" and for various
other objects therein declared. The articles are tendered
under the Act of Congress ' of March 2, 1903, and the
respondent alleges that this "is not now in force and effect
within the jurisdiction of the United States Court for
China." It is conceded that said Act was once in force
here but it is contended that because Congress, about a
decade later, in organizing the territory of Alaska, provided
that

"all laws in force in Alaska shall continue in full force and effect
until altered, amended, or repealed by Congress or by the legislature," '

and because said legislature did enact a new corporation
law effective January 2, 1914, the Act of March 2, 1903,
thereby ceased to be operative in China.

We have not at hand an official copy of the territorial
statute just mentioned and the copy furnished^ fails to
disclose a repealing clause. For aught that appears the
said statute may be merely cumulative to the Act of Con-
gress of 1903, just as the latter was itself cumulative to
the corporation laws of Oregon which had previously been
extended to Alaska and which, it was held,* continued in
force despite the corporate legislation of Congress above
referred to.

But, assuming that the legislature of Alaska did at-
tempt to repeal the Act of Congress of March 2, 1903, we
are of the opinion that such attempt was ineffectual so far
as this jurisdiction is concerned. For in the first place the
Federal Constitution ^ provides that "all legislative powers
herein granted shall be vested in a Congress," and the courts

' 32 U. S. Stats, at Large, Sess. II, Ch. 978, pp. 947-952.
'Act of Aug. 24, 1912, Sess. II, 37 U. S. Stats, at Large, Pt. I,
Ch. 387, sec. 3.

'Synopsis of Laws (1916), 20-22.

* Alaska Gold Mining Co. v. Ebner, 2 Alaska, 611.

* Art. I, sec. 1.

U. S. EX REL. RAVEN V. McRAE, JUNE 9, 1917. 657

hold that power so vested cannot be delegated to another
body.*^ This attempt to confer on a territorial legislature
the poM^er to repeal Acts of Congress is a recent departure,
never having been made, so far as we are able to ascertain,
except in this organic act of Alaska and in the more recent
statute extending local self government to the Philippines/
It is a departure which has not yet been sanctioned by
any judicial decision, which we have found, while it is
contrary to the doctrine noted above and supported by
numerous authorities.

But even were it permissible to delegate to a territo-
rial legislature the power to repeal acts of Congress for
the former's own territory, this would afford no prece-
dent for the contention here made. For if respondent's
position as to this point were correct we would have the
strange anomaly of Congress delegating to a territorial
legislature the power not only to repeal congressional
enactments operative in its own territory but also to legis-
late for residents of a distant region like China. This
would amount to a legal and political monstrosity.

Nor is this a case where a law was passed with a pro-
vision that it should remain in force for a limited period
only. The Act of Congress of March 2, 1903, contains
no such provision; its duration was as unlimited as any
other law. It is true that another act, passed nearly a
decade later, provided that all such laws were to "con-
tinue in full force and effect until altered, amended, or
repealed by Congress or by the Legislature." But this
was not a repeal nor a grant of authority to repeal and
it would not become effective, even as a limitation, with-
out a delegation * of legislative power, which, as we have
seen, is contrary to elementary principles.

•Am. & Eng. Encyc. of Law (2nd ed.), VI, 1028; Cyc, VIII, 830,

and cases there cited.

'Act of August 29, 1916, Sess. I, 39 U. S. Stats, at Large, Ch.
416, sees. 6, 7, p. 547.

' As in the Act last cited which provides :

"That the legislative authority herein provided shall have power,
when not inconsistent with this Act, by due enactment to amend,
alter, modify, or repeal any law, civil or criminal, continued in force
by this Act as it may from time to time see fit." (Sec. 7.)

14008 O. W. 42

658 I EXTRATERRITORIAL CASES.

II.

The practice of extending over one jurisdiction laws
originally passed for another, is not new in American
jurisprudence. As early as 1790 the laws of Maryland
and Virginia were continued in force over the respective
portions of the District of Columbia which had been ceded
by those states.^ This was renewed ^" in 1801 and much
of the old Maryland statute law remains in force in said
District to this day as a result of such extension. In 1804
numerous Federal laws were extended ^^ over Louisiana ter-
ritory, eight years before it became a state. In 1825
Congress extended the criminal laws of each state over
all Federal territory and property located within its
boundaries,^- thus making a violation of such state law
"an offense against the United States." ^^ The same method
was not infrequently employed during the formative
period of western America when new territories were
created. Thus the laws of Iowa were extended over the
newly formed territory of Nebraska in 1855, while in
1884, the laws of Oregon were, as we have seen, extended
over Alaska. In 1890 the Nebraska laws were extended
over Oklahoma ^* organized in 1889, while the same act
extended over the Indian Territory "certain general laws
of * * * Arkansas * * * not locally inapplicable
or in conflict with this act or with any law of Con-
gress." ^^ etc. The Federal constitution and "all the laws
of the United States which are not locally inapplicable"
were extended over Hawaii by the Act " of Congress of

• 1 U. S. stats, at Large, 130.

'" 2 U. S. Stats, at Large, Ch. 15, p. 103.

" Id., Ch. 38, sec. 7, p. 285.

"4 U. S. Stats, at Large, Ch. 65, sec. 3, p. 115.

" Biddle v. U. S., ante, p. 120.

" Act of Congress of May 2, 1890, Sess. I, 26 U. S. Stats, at Large,
Ch. 182, sec. 11.

" Act of Congress of May 2, 1890, Sess. I, 26 U. S. Stats, at Large,
Ch. 182, sec. 31. These laws were treated as Acts of Congress equally
as if they had been enacted by it in haec verba. In re Grayson, 3
Indian Ter., 497 (1901).

"31 U. S. Stats, at Large, Ch. 339, sec. 5, p. 141. It was not
in force there without such extension. Elliott, The Philippines, I,
492.

U. S. EX REL. RAVEN V. MCRAE, JUNE 9, 1917. 659

April 30, 1900, and the Federal Extradition law over the
Philippines by the Act ^' of February 9, 1903. These are
but "few of many similar instances. Congress was both
following and making precedent, therefore, in enacting, as
it did in 1848, that

*'the line.:; of .'lie United Siafes * * * are hereby, so far as is
necessary to execute said treaty, extended over all citizens of the
United States in China (and over all others to the extent that the
terms of the treaty justify or require), so far as such laws are suit-
able to carry said treaty into effect." ''"

In 1860 a more elaborate act ^^ was passed in which
the foregoing section was, almost literally, repeated, so
that it affords the basis of American jurisprudence in
China.

III.

Nor was the phrase *'laws of the United States" a new
one in our jurisprudence. It appears in the Federal
Constitution (Art. VI) and as there used was construed
by Chief Justice Marshall, as early as 1821, to include an
act relating to the District of Columbia alone. In re-
jecting the contrary contention, that great jurist said:

"Those who contend that acts of Congress, made in pursuance of
this power, do not, like acts made in pursuance of other powers,
bind the nation, ought to show some safe and clear rule which shall
support this construction, and prove that an act of Congress, * -ff *
as the legislature of the Union, is not a law of the United States, and
does not bind them." ^''

In construing the statute ^^ regulating appeals from the
Philippines, the Supreme Court declared the Philippine
Tariff Act, which applied to the archipelago alone, "a
statute of the United States." ^^

'• 32 U. S. Stats, at Large, Sess. II, Ch. 529, p. 806.

"Act of Congress of August 11, 1848, 9 U. S. Stats, at Large, Ch.
150, sec. 4, p. 276. "The law was passed in reference to this treaty
and to that with the Ottoman Porte." Dainese v. Hale, ante, p. 35.

''■' 12 U. S. Stats, at Large, Ch. 179, sec. 4, p. 73.

'"Cohens v. Virginia, 6 V^heat. (U. S.), 264, 424, 425, 5 L. ed., 257.

" 32 U. S. Stats, at Large, Ch. 1369, sec. 10, p. 695.

'' Gsell V. Insular Collector, 239 U. S., 93, 60 L. ed., 16:3, affirming
24 Philippine, 369, which in turn affirmed the decision of Lobingier,
J., reported in Philippine Law Review, I, 229-233.

660 I EXTRATERRITORIAL CASES.

It is true that the phrase "law of the United States,"
as used in one paragraph --^ of the Judicial Code relating
to appeals, has been construed as not including an act of
Congress for the extension of New York Avenue in
Washington.-* But the ratio decidendi was the declared
purpose of the paragraph to limit appeals -■' and it was
conceded that the same phrase in another paragraph might
be construed differently.-"

In reviewing a prosecution originally brought in this
Court, and in upholding its jurisdiction of such a crime,
the Court of Appeals announced:

"It is true, there is no general statute applicable to every state
in the Union, making this an offense against the United States;
nor could there be, in view of the fact that under our system of gov-
ernment the right to punish for such acts committed w^ithin the
political jurisdiction of the state is reserved to the several states.
But in legislating for territory over which the United States exer-
cises exclusive legislative jurisdiction, Congress has made the act of
obtaining money under false pretenses a ci-ime * * * in view of
the legislation of Congress to which we have referred (the acts re-
lating to Alaska and the District of Columbia, and the statute of July
7, 1898), our conclusion is that obtaining money or goods under false
pretenses is an offense against the laws of the United States, within
the meaning of the statute conferring jurisdiction upon the United
States Court for China.""

This is the doctrine now regularly applied by this Court
which has declared that the

^Sec. 250.

"" American Security etc. Co. v. District of Columbia Comrs., 224
U. S., 491, 56 L. ed., 856, 32 Sup. Ct., 553; Washington etc. R. Co.
V. Downey, 236 U. S., 190, 59 L. ed., 533, 36 Sup. Ct., 406; United
Surety Company v. American Fruit Product Company, 238 U. S.,
140, 59 L. ed., 1238, 35 Sup. Ct. 828; American Security etc. Co. v.
Rudolph, 38 App. Cas. (D. C), 32.

-' American Security etc. Co. v. District of Columbia Comrs., 224
U. S., 491, 56 L. ed., 856, 32 Sup. Ct., 553.

■" "Of course there is no doubt that the special Act of Congress
was in one sense a law of the United States. It well may be that
it would fall within the meaning of the same words in the third
clause of the same section; 'Cases involving the constitutionality of
any law of the United States.' " Id. Cf. United Surety Company
v. American Fruit Product Company, 238 U. S., 140, 59 L. ed., 1238,
35 Sup. Ct., 828.

" Biddle v. United States, ante, p. 120.

U. S. EX REL. RAVEN V. McRAE, JUNE 9, 1917. 661

"extension results quite independently of the original purpose of
the acts themselves. Thus Congress may enact a law for a limited
area .under its exclusive jurisdiction, such as Alaska or the District
of Columbia; by its terms it may have no force whatever outside of
such area; but if it is 'necessary to execute such treaties' (with
China) and 'suitable to carry the same into effect,' it becomes oper-
ative here by virtue of the act of 1860 above quoted. Such we
understand to be the doctrine announced by the Court of Appeals." ^

In making such extensions Congress has expressly
adopted the principle that an extension by it precludes
abrogation by any other body. Thus in extending over
Federal territory the laws of a particular state it was
provided, as early as 1866, that

"no subsequent repeal of any such State law shall affect any prosecu-
tion for such offense in any court of the United States." ^

A similar provision was embodied in an Act of 1898.^"
Nor would such express provisions appear necessary. On
principle it would seem that since Congress alone may extend
laws to China, it alone may withdraw them when so ex-
tended and that the act of a territorial legislature could have
no effect on such laws.

IV.

It is conceded, as we have seen, that the corporation act
of Congress of March 2, 1903, was extended to China.
But the questions involved are too important to rest upon
a mere admission and we shall therefore inquire whether
said act meets the requirements of the extending law
above quoted — whether, in other words, it is one of the
laws "necessary to execute the treaties" and "suitable to
carry them into effect."

Now one of the primary objects of the treaties was the
prom.otion of commerce. That can hardly be accomplished
in these days without corporations and a law authorizing
their formation would seem to be one of the laws "neces-
sary to execute the treaties." Indeed the very desire of
our citizens to incorporate in China affords the best evi-
dence of such necessity.

" U. S. V. Allen, ante, p. 311.

''14 U. S. Stats. St Large, Ch. 24, sec. 2, p. 13; U. S. Rev. Stats.,
sec. 5391.

'"30 U. S. Stats, at Large, Ch. 576, p. 717.

6(52 I EXTRATERRITORIAL CASES.

Moreover this Act of March 2, 1903, is not only the latest
expression of Congress on the subject of incorporation ;
it seems to us the most suitable. The legislation on that
subject enacted for the District of Columbia is not only
much older but seems to be confined mainly to special
classes of corporations. The Act in question, however,
appears to be an up-to-date general incorporation law.
Neither the argument of this case nor a careful scrutiny
of the Act itself has brought to light any feature of it
which is unsuitable to conditions in China. It requires,
it is true, a copy of the articles of incorporation to be filed
*'in the office of the Secretary of the District ;" ^^ but in
the case of extended legislation such provisions are to be
construed not literally but as meaning the corresponding
office, which, in China, would seem to be the Legation, since
it is the only local American institution, besides this court,
whose functions extend to the whole of China. In applying
the Oregon statute, which required filing with the county
clerk, the United States District Court for Alaska held
that it would be sufficient to file with a similar official.

"Here, then, was the officer corresponding to the county clerk,
with whom the other certificate might be filed. We are of the
opinion, however, that a filing of the second certificate with the clerk
of the court would have met the requirement, for it is well settled
that the intention of the Legislature should not be defeated by a
strict construction of the statute. * * * -pj^g intention of Con-
gress is gathered, and by following out this obvious intention the
persons desiring to incorporate, while not filing with an actual
Secretary of State and an actual county clerk, are substantially
complying with the law when they file with the surveyor general and
the clerk of the court for the division in which they intend to carry
on business." ^"

Another copy, however, is required to be "filed in the
office of the clerk of the District Court" " and to that
designation the clerk of this Court well corresponds. The
incorporation is thus effected by an officer of the Court

" Act of March 2, 1903, 32 U. S. Stats, at Large, Ch. 978, p. 947,
sec. 2.

"Alaska Gold Mining Co. v. Ebner, 2 Alaska, 611, 614, 616.

*• Act of March 2, 1903, sec. 2. '

U. S. EX REL. RAVEN V. McRAE, JUNE 9, 1917. QQ^

and the concern placed under its observation from the
start. Each year the corporation must file with the said
Clerk a list of its officers and notice of any changes there-
in must likewise be filed. ^* The opportunities for official
supervision are, therefore, much greater than in the case
of corporations formed, as many have been, under the laws
of some distant state, to do business in China where no
official inspection on the ground is possible.

Moreover the conditions both preliminary to, and after,
incorporation are strict. The articles are required to state
full particulars,^^ all stock must be paid for "at its true
money value" "" and "every stockholder shall be personally
liable to the creditors of the company for the amount that
remains unpaid upon the par value of his stock." ^^ The
capital stock must not be increased nor diminished except
as prescribed by law.^® The corporation must "keep cor-
rect and complete books" which must, "at all reasonable
times, be open to the inspection of stockholders," ^^ and
every year the principal officers must prepare and publish
for three successive weeks in a newspaper of general cir-
culation in the jurisdiction a sworn statement showing

"(1) the number of shares of capital stock outstanding; (2) the
amount paid in on each share of stock; (3) the actual paid-up
capital of the corporation; (4) the actual cash value of the property
of the corporation and the character, location, and nature of the
same; (5) the debts and liabilities of the corporation, and for what
the same were incurred and whether the same are secured or un-
secured and the amount of each kind, and, if secured, the character
and kind of security; (6) the salaries severally paid each and every
officer, manager and superintendent of the corporation during tlie
preceding year; and, (7) the increase or decrease, if any, of the
stock, the capital, and the liabilities of the corporation during the
preceding year." ""

With the court officers ready to see that these require-
ments are observed the interests of both the public and
the stockholders appear to be amply safeguarded. No
defect or shortcoming has been pointed out in this statut'^

"Id., sec. 20. "Id., sec. 13.

^•Id., sec. 2. "Id., sec. 16.

"Id., sec. 14. ^'Id., sec. 23.

='Id., sec. 14.

664 I EXTRATERRITORIAL CASES.

as compared with the most advanced corporation laws *^
and if Congress could, after long effort, be persuaded to
enact another law, especially for this jurisdiction, it is not
apparent wherein it would excel the present one. We are,
therefore, of the opinion that the Act of March 2, 1903,
is quite as "necessary" and ''suitable" as the other "laws
of the United States" which have been held by this and
other courts to have been extended here by the general act
above quoted. For there can be no half-way adoption of
that doctrine; it includes all such laws or none. It can-
not logically be restricted to any particular class of acts.
It is just as applicable to civil laws as to criminal; just
as "necessary" in respect to corporations as to procedure.

But the "suitability" of this Act of March 2, 1903,
depends upon its requirements and applicants for incor-
poration thereunder must show compliance therewith so
far as compliance is possible before incorporation. Inter
alia the act requires the articles to state "the amount of
capital stock of said corporation, and how the same shall
be paid in." *- The importance of this requirement be-
comes apparent when read in connection with that already
noticed :

"No corporation shall issue any of its stock, except in considera-
tion of money, labor, or property estimated at its true money value." **

The object of this is evidently to insure a bona fide
capital at the start and to prevent incorporation with
merely "watered" stock. Clearly this is a wise precau-
tion whose observance must be strictly enforced.

Examining, in the light of this requirement, the articles
here tendered we find that the applicants have stated "the
amount of capital stock" but not "how the same shall be
paid in." It does not appear whether the stock has been
issued (and hence the capital created) "in consideration
of money, labor or property" or of something else, nor

■" Cf. the new Public Utilities Act of Illinois, discussed in Illinois
Law Rev., XII, 12.
" Id., sec. 2.
"Id., sec. 14.

U. S. EX REL. RAVEN V. McRAE, JUNE 9, 1917. 665

whether, if the consideration is other than money, it is
"estimated at its true money value."

IVIoreover the articles fail to show^ whether the capital
stock is to be paid in before incorporation or after. For
aught that appears the concern might be incorporated
without any tangible capital by merely issuing certificates
of stock. In this case the applicants are worthy and re-
putable citizens and we may assume that no such result
was intended. But as this is the first case where the
question has arisen here we must adopt a rule which would
apply to all situations and prevent incorporation by im-
pecunious adventurers.

Again the act provides that corporations organized
thereunder

"shall have the right to acquire and hold only such real estate as
may be necessary to carry on their corporate business.""

We are disposed to agree with respondent's counsel that
this provision is infringed by the recital, in the articles,
of the proposed corporation of an intention

"to take, own, hold, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose
of, real property wherever situated."

Now the Clerk is required to record articles only after
they have been filed and the only articles which are en-
titled to be filed are those which contain the particulars
prescribed by the statute. Doubtless the act of filing
is a ministerial rather than a judicial one but the law
seems to be well settled that the recording oflficer cannot
be compelled by mandamus to accept, for filing, papers
which, on their face, fail to comply with the statute.*^ And
since the recording of the articles perfects the corporate
existence which can then be questioned only in a direct
proceeding *^ it seems to be not only the right, but the
duty, of the officer to see that such existence does not

" Id., sec. 5.

* State V. McGrath, 92 Mo., 355, 5 S. W., 29; Woodburg v. Mc-
Clurg, 98 Miss., 831, 29 S. W., 514; People v. Nelson, 3 Lans. (N.
Y.), 394.

'*Lord V. Bldg. Ass'n., 37 Md., 320, 327; Cochran v. Arnold, 58
Pa. St., 399.

QQQ I EXTRATERRITORIAL CASES.

commence until the conditions prescribed by the law have
been fulfilled. In providing for incorporation thru the
machinery of the Court, and imposing the responsibility
upon its officers, the act which we are now applying
seems to have been intended to prevent the evils ^f
loose and reckless incorporation by making possible in
advance a careful scrutiny and strict exaction of all pre-
scribed conditions. This offers opportunities of super-
vision which would be lost if the recording officer were
treated as a mere automaton, obliged to accept any cor-
porate papers which might be presented.

Having reached a conclusion which disposes of the case
before us we find it unnecessary to prolong this opinion
by entering upon a consideration of the other question
discussed in argument, viz., whether, under the law which
we have found to be in force here, banking corporations
may be organized. Since a determination of that ques-
tion is not necessary in order to decide the pending cause,
whatever we might say thereon would be obiter dicta and
we prefer to discuss it only when the necessity for ad-
judication arises.

For the reason that the proposed articles of incorpora-
tion do not, in our judgment, comply with the statute,
the writ of mandamus is

DENIED.

IN THE UNITED STATES COURT FOR CHINA.
United States v. Gilbert Reid.

[Causes Nos. 588, 589, 590; filed June 12, 1917.]

SYLLABUS.

(By the Court.)

CRIMINAL PROCEDURE: DISCONTINUANCE of a prosecution before
trial is within the District Attorney's discretion, subject to no
other approval than the court's.

LOBINGIER, J.:

These are prosecutions for seditious libel which have not
yet come on for trial. In each of them the District At-
torney now

UNITED STATES V. REID, JUNE 12, 1917. 667

"moves the Court to enter a nolle prosequi to the information for the
following reasons, to wit: that public interests will best be served
by not prosecuting the cause to a further determination at this
time."

It is stated in a work of authority:

"At common law the matter of entering a nolle prosequi rests
entirely within the discretion of the prosecuting officer, and leave
of the court is not necessary; and by the weight of authority this
is still the rule, in the absence of a statute, where the entry is be-
foi'e the trial begins." '

Under the Act of Congress of March 3, 1899,

"the court may either on its own motion or upon the application of
the District Attorney, and in furtherance of justice, order an action,
after indictment, to be dismissed; but in that case the reasons of the
dismissal must be set forth in the order, which must be entered in
the journal." '

"The entry of a nolle prosequi is abolished; and the district at-
torney cannot discontinue or abandon a prosecution for a crime,
except as provided in the last section." '

Whether this act is fully in force here we need not now
stop to determine. For, as we said in a similar case,

"the Court's consent * '" * is ordinarily granted as a mat-
ter of course * * * where the prosecuting officer, who usually
hears but one side of the cause, and is certainly not biased in favor
of the accused, reaches the conclusion" that it should be discon-
tinued.*

Whether this motion is treated as one for nolle prosequi,
discontinuance, or dismissal (and it must be one of these) ,
the result is the same.

The record contains extensive correspondence between
the Honorable Paul S. Reinsch, American Minister to China,
and the United States Marshal for China disclosing the
former's desire that the accused be prosecuted; and it has
been suggested in his behalf that the District Attorney be
required to obtain the Minister's approval before the con-
templated action be taken.

^ Cyc, XII, 375.

' 30 U. S. Stats, at Large, Sess. Ill, Pt. I, Tit. II, Ch. 429, sec. 261,
(p. 1315).

= Id., sec. 262.

* U. S. V. Sandage, ante, p. 636.

668 I EXTRATERRITORIAL CASES.

Such a course would be quite foreign to American judicial
procedure whose underlying theory is the complete separa-
tion of governmental powers and the entire independence
of the judiciary. The act. establishing this Court trans-
ferred to it the Minister's judicial ^ as well as legislative ®
functions and in China, as elsewhere, the Minister is now
a diplomatic and executive officer only.

Comity and cooperation between the different branches
of the government are, of course, highly desirable and the
District Attorney is doubtless ready at all times to receive
suggestions from other officials. But he is, nevertheless,
the sole American prosecuting officer in China and the
ultimate discretion to institute or seek the discontinuance
of criminal proceedings in this court rests with him.

The motion is sustained pro forma with costs de officio
and the defendant's bail released.

IN THE UNITED STATES COURT FOR CHINA.
In re Lucy G. Werlich's Will.

[Cause No. 595; filed June 26, 1917.]

SYLLABUS.
(By the Court.)

I.WILLS: Certification. A certified copy of a will purporting to
be executed by the British Registrar of the "Principal Probate
Registry" and authenticated by the seal of the Probate Divi-
sion of the High Court of Justice is sufficient without other
showing as to the status of the certifier.

2. Id. : Id.: Effect. Where a probated will is out of the jurisdiction
a certified copy made from an exemplified copy of the original
is admissible.

Messrs. Piatt, Macleod & Wilson by Mr. Wilson, for the
petitioner.

No appearance contra.

LOBINGIER, J.:

This cause comes on for hearing upon the petition of G.
L. Campbell for Letters of Administration, in support of
which the petitioner presents a certificate entitled, *Tn his

' 34 U. S. Stats, at Large, Sess. I, Ch. 3934, sec. 1.

•Id., sec. 5. Cf. Op. Solicitor State Dept. March 2, 1917.

IN RE WERLICH'S WILL, JUNE 26, 1917. 669

Majesty's High Court of Justice; the Principal Probate Reg-
istry," and reciting that Lucy Glover Werlich, died in New-
York on October 5, 1915, and that

"the last will and testament (a copy whereof is hereunto annexed)
of the said deceased was proved and registered in the Principal
Probate Registry of His Majesty's High Court of Justice and that
Administration of all the Estate which by law devolves to and vests
in the personal representative of the said deceased was granted by
the aforesaid Court to Verdie Fearon (wife of George Fearon) sister
of deceased and the said George Fearon, the surviving executors for
England and China named in the said will," etc.

The certificate is signed by a party purporting to be the
Registrar and the "Seal of the Probate Division of the High
Court of Justice, Principal Registry," is attached. There
being no further evidence offered or available the question
is presented whether the instrument in question is sufficient-
ly proved.

There is little difficulty in assuming that the Registrar
is the lawful custodian of whatever is registered in the
probate registry. But at common law "the custodian of
records had, as custodian, no implied authority to certify
copies." ' In this jurisdiction, however, we have the benefit
of a statute providing that

"A judicial, legislative, or executive record * * * of any State
or Territory of the United States, or of any foreign country, or of
any political subdivision of either, may be proved by the production
of the original, or by a copy thereof, certified by the clerk or other
person having the legal custody thereof, with the seal of the court
or the official seal of such person affixed thereto." '

It will be seen that this does not, as do many similar
statutes, require the certificate of another official to the
effect that the custodian is such. The seal supplies authen-
tication and the proof in that respect suffices,

II.

The copy of the will which the certificate recites is "here-
vmto annexed" is accompanied by what purports to be an
exemplified copy of a decree of the Surrogate of New York
County admitting the said will to probate in his court on

'Wigmore, Evidence, III, 2138.

^ Act of Congress of June 6, 1900, Sess. I, 31 U. S. Stats, at Large,
Ch. 786, Tit. II, sec. 1040.

670 I EXTRATERRITORIAL CASES.

December 4, 1916. Altho the date of probate in the British
High Court of Justice does not appear it would seem to
have been subsequent to the last named date and the state
of the record suggests that the second probate was based on
the first and that what we really have here is a copy of a
copy of the will. But this, while undesirable, is not neces-
sarily fatal. For altho it is stated by eminent authority ^
that

"if the original and also the immediate copy are both existing public
records" * * * ^ copy of the latter should be excluded,

he adds,

"Where the original is out of the jurisdiction, the requirement may
well be relaxed";

and he cites a decision ^ where probate of a will on a cer-
tified copy of probate from an authenticated copy in an-
other state was upheld. In this instance neither the original
nor the first copy is within the jurisdiction of this court and
in view of the long delay involved in procuring a copy of
the original we are disposed to exercise the discretion in-
dicated by the authority above quoted in stating that "the
requirement may well be relaxed." This is not intended,
however, to apply to cases other than that here presented.

The petitioner presents a Power of Attorney, duly authen-
ticated under Notarial Seal, from the parties named in the
will as executors, and purporting to confer upon him exten-
sive authority regarding the estate in China. Aside from
the question whether this grant is in all respects valid it
at least indicates the petitioner as a "person competent and
qualified" ^ to be named as administrator.

The citizenship of the deceased seems sufRciently shown
by the recital in the certificate that she was "the wife of
Percival Julius Werlich" whose estate is now being admin-
istered in this court as an American citizen.

We therefore find that the petitioner is entitled to an-
cillary Letters of Administration of the estate in China
cum testamerito annexo and direct that such Letters issue
accordingly upon his taking and subscribing the oath as

' Wigmore, Evidence, II, 1555.

' Corbett v. Nutt, 18 Gratt. (Va.), 624, 633, 637.
" Act of June 6, 1900, Sess. I., 31 U. S. Stats, at Large, Ch. 786, Tit.
II, sec. 774.

UNITED STATES V. SONICO, JAN. 19, 1918. 671

required by law, executing a proper bond in a sum equal
to twice the value of said local estate and, since he is a
British subject, filing a submission to the jurisdiction of
this court.

IN THE UNITED STATES COURT FOR CHINA.
United States v. Pablo Sonico.

[Cause No. 607; filed January 19, 1918.]

SYLLABUS.
(By the Court.)

1. EVIDENCE. A proposed or disputed rule of evidence whose design

is to avoid misleading the jury, will not be adopted in this
jurisdiction where all trials are by the court.

2. Id. : This principle applied to an attempted limitation upon the

rule in criminal cases which admits in evidence acts and state-
ments in the accused's presence.

3. Id.: The Record of an Inquest upon the body of a deceased, for-

mally held in accordance with the laws of the jurisdiction, is
admissible and entitled to be considered especially where no
objection is offered.

4. Id. : The Flight of the Accused, immediately after the crime,

the corpus delicti having been proved, may be considered as an
inculpatory circumstance.

5. Id. : Identification of the accused, shortly after the crime, by

three disinterested persons acting independently, held sufficient.

6. Id. : U. S. v. Martin, No. 487, distinguished.

7. Id. : Causation. Where the deceased, a young man employed at

hard labor, collapsed shortly after he was stabbed, and died a
few minutes later, and no intervening cause is shown, a phy-
sician's opinion, following a finding at the inquest, that death
resulted from the wound, held sufficient proof of causation.

8. MANSLAUGHTER defined and found to have been committed but

with extenuating circumstances.

Chauncey P. Holcomb, Esq., U. S. Dist. Atty,, for the
prosecution.

M. L. Heen, Esq., for defense.

LOBINGIER, J.:

The accused is charged with

"the crime of manslmtghter: in that the said Pablo Sonico, within
the jurisdiction of said Court, at Shanghai, China, did on or about
the twenty-first day of August, nineteen hundred and seventeen.

672 I EXTRATERRITORIAL CASES.

cause the death of a human being, one Loh Yuen Zien, a citizen of
the Republic of China, by striking him with a knife and inflicting a
mortal wound, from which wound the said Loh Yuen Zien languished
and died."'

On the evening in question four Filipinos, including the
accused, who were employed on the steamship Don Neil,
went ashore and stopped at a Chinese fruit store (No. 1032
Yangtszepoo Road) where they bought some apples. The
accused endeavored to pay for them with a twenty cent
piece which the storekeeper pronounced bad and a quarrel
ensued, whereupon the storekeeper called a Sikh policeman
who started to take all the participants to the police station.
Upon arriving at Jansen Road the Filipinos resisted and
three of them, including the accused, became engaged in
a fight with some Chinese, in the course of which a Filipino
stabbed a Chinese who toppled over, became unconscious
and was taken to St. Luke's Hospital where he died before
medical attendance reached him.

The foregoing is undisputed but the defense raises two
questions of fact, viz.: (1) the identity of the assailant
and (2) the sufficiency of the wound to cause death. We
shall consider the latter first.

The prosecution offered in evidence the record (Ex. A)
of an inquest held over the deceased's body by the Chinese
Mixed Court Magistrate and American Assessor who found
that the "death was caused by the wound." At the time
of this offer defendant's counsel said (trans, p. 56) :

"I will admit the authenticity of the record (Ex. 'A') subject
to objection on my part. * * * j object to the typewritten matter
which accompanies the finding at the inquest. I admit the finding."

Later, counsel said (p. 81) :

"I move this Honorable Court to strike from the record and files
in this case the record which has been admitted (Ex. *A'), my motion
being based on the additional testimony of the witness."

The witness here referred to was the Assessor who sat
at the inquest and whose testimony related to the character
of that proceeding and showed incidentally that the accused
was present.

The naked legal question whether the record of a coroner's
inquest is admissible in another cause is one upon which

UNITED STATES V. SONICO, JAN. 19, 1918. 673

the courts are divided. In England and several American
jurisdictions the record is admitted and considered, tho it
is, of course, not conclusive, as to the cause of dea'th.^ In
another group of American courts such a record is excluded.-
These latter tribunals, however, formulate rules for jury-
trials and naturally seek to guard against unwarranted
inferences which a jury might draw from a coroner's
inquest. But in this jurisdiction, where all trials are by
the court, no such need arises. A liberal rule which per-
mits the court to consider such evidence for what it may
be worth may safely, and we think should, be adopted
here. Especially in a case like this where the record in
question was once formally admitted without objection and
where the motion to strike was made only after the in-
troduction of new evidence, which in our judgment changes
the situation in no way, we have no hesitancy in over-
ruling the motion.

The finding which was thus admitted was that death
was "caused by a wound with a knife inflicted in the course
of a fight," etc., referring to the affair above mentioned.
But it is not the only evidence to that effect. Dr. Tucker,
who was called to attend the deceased at the hospital,
testified (p. 88) in response to the question as to what, in
his opinion, caused the death:

"My opinion is, a stab wound probably of the heart but possibly
of the liver."

^England. Sergeson v. Sealey, 2 Atk., 412; Starkie, Ev. (10th
ed.), 406.

California. Walther v. Ins. Co., 65 Cal., 417, 4 Pac, 413,

Illinois. Grand Lodge v. Wieting, 168 111., 408, 48 N. E., 59; Pyle
V. Pyle, 158 111., 289, 41 N. E., 999; U. S. L. Ins. Co. v. Vocke
(Kielgast), 129 111., 557, 22 N. E., 467, 6 L. R. A., 65.

Iowa. Metzradt v. Modern Brotherhood, 112 la., 522, 84 N. W.,
498.

Mississippi. Supreme Lodge v. Fletcher, 78 Miss., 377, 29 So., 523.

* Colorado. Germania Ins. Co. v. Ross-Lewin, 24 Col., 43, 51 Pac,
488.

Indiana. Union Central Ins. Co. v. Hollowell, 14 Ind. App., 611,
43 N. E., 277.

Maryland. State v. Comr's., 54 Md., 426.

Michigan. Wasey v. Ins. Co., 126 Mich., 119, 85 N. W., 459.

Oregon. Cox v. Royal Tribe, 42 Or., 365, 71 Pac, 73.

Pennsylvania. In re Ralston, 9 Pa. Dist. Ct., 514.

14008 O. W. 43

674 I EXTRATERRITORIAL CASES.

It is true that the physician made no post-mortem exam-
ination ; but, while this is advisable, as recommended by-
high authority,^ we find no warrant for rejecting the opinion
on that ground. Moreover, the occurrences when the wound
was inflicted, tho apparently unknown to the physician,
clearly strengthen his opinion. The Sikh policeman, who
arrested the Filipinos, testifies (pp. 33-34) that the de-
ceased backed into his arms, after receiving the wound, and
later became unconscious. Mr, Hilborne, who took the de-
ceased to the hospital in his car, testifies (p. 92) :

"I saw blood oozing from his chest; I knew it was in a dangerous
condition."

Upon being asked his reasons for so concluding he said
(p. 93) :

"Seeing the blood oozing from his heart, the man tried to speak
and he couldn't, and knowing the closeness of the wound to the
region of the heart and the constant flow of blood when it was com-
ing out. * * * Shortly after I put him in the motor car, he
collapsed."

Now the deceased, according to the statement of his father
at the inquest, was a boy of 18 and was employed as a
coolie in a cotton mill. We cannot assume without evidence
that one of that age and occupation died from some organic
cause other than the wound which produced such a flow
of blood and so soon after which the victim collapsed and
died. We must therefore find the proof sufficient to show
that death resulted from the wound.

II.

After the stabbing the accused broke away and fled to
the ship. Sergeant Knight of the Police force went there
accompanied by a Filipino who had been brought to the
station and who is identified (p. 44) as Simon Antong.

Sergeant Knight testifies:

"I asked him who was the tall man who used the knife, and he
pointed to the accused." (p. 48.)

"Q. In what way?

A. As the man who used the knife who stabbed the Chinese on
Jansen Road." (p. 43.)

^ Wharton & Stille, Medical Jurisprudence, III, p. 188, par. 219.

UNITED STATES V. SONICO, JAN. 19, 1918. 675

Whereupon the witness arrested the accused.

Defendant's counsel contends that this cannot be given
full probative force because it is hearsay. But an ex-
ception has always been made of acts or statements in the
accused's presence. Thus in the report * of the Trial of
Elizabeth Canning for Perjury (1754) appears the fol-
lowing :

"I said to Canning, 'Now look for the woman that robbed you;'
she immediately pointed to Mary Squires and said, 'That old woman
in the corner was the woman that robbed me,' * * * Somebody
said (I think it was Mary Squires's daughter), 'Do you hear what the
gentlewoman says? she says you robbed her.' The old woman
got up from the stool immediately, and said — Mr. Morton. 'I object
against that being mentioned; it is no evidence.' Court. He may
give an account of what was said in the defendant's hearing and
presence."

In a prosecution for horse stealing testimony that one
in a group, which included the accused, had remarked that
he would like to get hold of the horses in question was
admitted over objection. In affirming the conviction the
appellate court said:

"We do not think this testimony was irrelevant or prejudicial
if defendant was present when the statement was made, or if he
made the same, but think it extremely pertinent and proper testi-
mony, regardless of whether or not there had been a conspii'acy
proven. The bill [of exceptions] does not show that defendant did
not hear the statement, nor does it show he did not make it. In
either event, the testimony would be admissible." "

Defendant's counsel cites a textwriter's opinion '' that
such evidence is "only introductory and for the purpose of
introducing and explaining A's (the accused's) conduct and
behavior when the charge was made and his answer upon
the occasion." But aside from the fact that no cases are
cited for this limitation and that it does not appear in those
above cited, it cannot be applied here because there is no
evidence as to what defendant's "conduct and behaviour"
were when he "was pointed out as * * * the man who
stabbed the Chinese," nor that he made any "answer." Now

' 19 How. St. Tr., 383, 406.

= Shackleford v. State, Tex. Crim. App., 53 S. W., 884.

' Starkie, Evidence, quoted in Thayer's Cases (2nd ed.), 115.

676 I EXTRATERRITORIAL CASES.

defendant, tho testifying in his own behalf, does not deny-
that he was so "pointed out." Indeed he admits (p. 78)
that Simon, the Filipino, was with "the policeman" (Ser-
geant Knight) who came to the ship and that the latter
pointed him out as "guilty" (p. 73) and the accused does not
claim that he denied the imputation or said anything.

We are of the opinion, therefore, that this evidence of
identification must be applied as in the cases above cited
and that any extension of the hearsay rule (which again
is mainly to guard against misleading the jury) unless war-
ranted by the decisions, ought not to be made in this juris-
diction where all trials are by the court.

Defendant's counsel assails the reliability of Simon's iden-
tification on the ground that he was struggling with the
Sikh policeman when the stabbing occurred and that the
latter failed to recognize the assailant, whom he identified,
however (pp. 39, 40), as one of the three Filipinos. Now
these were Simon's companions and it would not seem
strange if he were better able than the Sikh to differentiate
the one who held the knife and stabbed the deceased. Nor
does it follow that because the latter did -not see the stab-
bing Simon could not. His failure to mention it or his
identification at the preliminary investigation, eight days
later and in his deposition, taken fifteen days later, might
well be explained on the ground that sufficient time had
then elapsed for the boys to agree upon a different story;
which may also have been the reason why they were not
called by the government. At any rate Simon's undisputed
identification at the ship, immediately after the stabbing,
seems to us more trustworthy than a story told one or two
weeks later.

After defendant's identification and arrest on shipboard
he was taken to the police station and there placed in a
room with the other Filipinos. The storekeeper who had
sold him the fruit was then called and asked to indicate
the one who stabbed the deceased. He, too, pointed to the
accused as did, likewise, a cotton mill coolie (pp. 50, 51).
Both of these men testified at the trial that they saw the
accused stab the deceased (pp. 4, 25).

UNITED STATES V. SONICO, JAN. 19, 1918. 677

Counsel devotes more than half of his argument to a
criticism of the storekeeper's testimony. His analysis of
the latter is keen and searching but fails to convince us
that the storekeeper was romancing when he testified that
he saw the stabbing. The discrepancies real or alleged in
his different statements mainly involve points of minor im-
portance and might in part be accounted for by the dif-
ficulties of translation and in part by the lapse of nearly five
months between the preliminary examination and the trial.
It is not claimed, however, that there is any discrepancy in
various descriptions of the actual stabbing occurrence. No
amount of cross-examination sufficed to shake the store-
keeper's positive statements on that point.

We do not find that a fair construction of what this
witness says requires us to assume either that his view
was obstructed by telegraph poles and trees nor that his
attention was distracted by the arrest of Simon, which
would be less important to him than the stabbing. He had
one great advantage, too, in recognizing the accused; he
had seen and talked with him face to face earlier in the
evening. Counsel suggests the difference over payment
for the fruit as a cause of bias against the accused. But
if so it was one which must have operated similarly against
his companions, for all had bought the fruit and the others
had failed to pay. There seems to be no sufficient reason
why the storekeeper should select one more than another.
But that he should recognize the accused was perfectly
natural, especially as the latter is "a tall Filipino" dis-
tinguishable in that way from his companions. (Pre. Ex.,
p. 14.)

The latter circumstance would also naturally aid the other
Chinese witness in his identification of the accused. He is
a coolie, of course, and acutely trained powers of observ-
ation cannot be expected of him. He is unable to recall
some of the surrouiiding circumstances; but the sight of
the knife and the stabbing v/ould certainly make an impres-
sion. Nor is there any suggestion of interest on the part
of this witness. He did not even volunteer but was called
by the detectives against the wish of his brother (p. 29).
Moreover, all attempts to show collusion or even communi-

678 I EXTRATERRITORIAL CASES.

cation (p. 39) between the two Chinese witnesses failed.
So far as appears they were not previously acquainted.
Counsel says:

"It is improbable that the accused had a knife at the time of
the stabbing- for if he had one he would have used it instead of the
fruit dealer's knife when peeling his apple at the fruit shop."

Now the only witness besides the accused himself who
refers to such a knife is Gregorio Gaisting and he testified
on direct examination (Dep., p. 3) in reply to the

"Q. Tell us who used the knife?

A. I alone myself, in peeling the apples."

On cross-examination, indeed he says (p. 12) "each of
us used the same knife." But if we were to apply to this
M'^itness the strictures which counsel would have us apply to
the Chinese witnesses we would have to reject his testimony
altogether.

Assuming, however, that there was such a knife we do
not think that it necessarily follows that the accused would
have used his own instead. If the knife was passed around
from one to the other it would seem quite natural for the
accused to have used it along with the rest.

Counsel also considers that

"one evidence which seems to point strongly to the innocence
of the accused is that he arrived at the ship ahead of Gregorio and
Ramon thus indicating there was no delay in making his escape."

But flight is usually treated " as a mark of guilt, not
innocence, and the more rapid the flight the stronger the
mark.

The decision ■ of this Court invoked by counsel on the
question of identification bears little resemblance to the

'Alabama. Garden v. State, 84 Ala., 417, 4 So., 823; Murrell v.
State, 46 Ala., 89, 7 Am. Rep., 592.

California. People v. Fine, 77 Cal., 147, 19 Pac, 269.

Indiana. Anderson v. State, 104 Ind., 467, 4 N. E., 63.

Iowa. State v. Poe, 123 la., 118, 98 N. W., 587, 101 Am. St. Rep.,
307; State v. Stevens, 67 la., 557, 25 N. W., 777.

Massachusetts. Com. v. Brigham, 147 Mass., 415, 18 N. E., 167.

Missouri. State v. Brooks, 92 Mo., 542, 5 S. W., 257.

Texas. Thorp v. State, 59 Tex. Grim., 517, 129 S. W., 607, 29
L. R. A. (N. S.), 421; Williams v. State, 43 Tex., 182, 23 Am. Rep.,
590; Williams v. State, 22 Tex. App., 497, 4 S. W., 64.

" U. S. V. Martin, ante, p. 549.

UNITED STATES V. SONICO, JAN. 19, 1918. 679

case at ba!r. There the accused, an American sailor among
many similarly dressed, was identified, some time after the
affair, by the complaining witness only, who was to some
extent an interested witness ; while there were others pres-
ent and certain contrary circumstances left unexplained.
Here the identification was by three persons, on the same
evening when the crime was committed, none of whom can
fairly be called interested, one of whom was of the accused's
own race, and each of whom was independent of, and dis-
connected from, the others. To reject such an identification
would be to discourage needed prosecutions and to render
convictions well nigh impossible and we feel satisfied that
it should be upheld as sufficient.

But the same testimony which identifies the accused as
the assailant also shows (p. 4) that his blow was aimed
at another and that he did not intend to stab the deceased.
This brings the facts within the limits of the offense charged,
which is thus defined in a leading case:

"Manslaughter is the unlawful killing of another without malice;
and may be either voluntary, as when the act is committed with
a real design and purpose to kill, but through the violence of sudden
passion, occasioned by some great provocation, which in tenderness
for the frailty of human nature the law considers sufficient to pal-
liate the criminality of the offense; or involuntary, as when the
death of another is caused by some unlawful act, not accompanied
by any intention to take life." °

The Act of Congress of March 3, 1899, provides

"That whoever unlawfully kills another, except as provided in
the last three sections, is guilty of manslaughter, and shall be im-
prisoned in the penitentiary not more than twenty nor less than one
year." ^"

The Act of March 3, 1901, contains the following:

"Whoever commits manslaughter shall be punished by a fine not
exceeding one thousand dollars, or by imprisonment not exceeding
fifteen years, or both such fine and imprisonment." "

"Shaw, C. J., in Commonwealth v. Webster, 5 Cush. (Mass.), 295,
52 Am. Dec, 711.

"30 U. S. Stats, at Large, Sess. Ill, Ch. 429, Tit. II, sec. 6; Alaska
Compiled Laws, sec. 1886.

"31 U. S. Stats, at Large, Sess. II, Ch. 854 (District of Columbia
Code), sec. 802.

680 I EXTRATERRITORIAL CASES.

The Federal Penal Code of 1909 provides

"Every person guilty of voluntary manslaughter shall be im-
prisoned not more than ten years. Every person guilty of invol-
untary manslaughter shall be imprisoned not more than three years,
or fined not exceeding one thousand dollars, or both." "

Here it will be seen is a progressive reduction of the
maximum with the disappearance of the minimum. In
view of the fact that the offense was committed in the
midst of ah affray in which, altho self-defense is not urged,
as that would be inconsistent with his plea, the accused
evidently had reason to fear for his personal safety, we
feel that a penalty much below the maximum should be
applied.

The accused is accordingly sentenced to imprisonment
for one year and six months and to pay the costs of this
prosecution; the said term to run from his incarceration
on August 21, 1917 and to continue in the Prison for Amer-
ican convicts at Shanghai, until he can be transported to
Bilibid Prison, Manila, territory of the Philippines, where
the balance of said term shall be served.

IN THE UNITED STATES COURT FOR CHINA.
United States v. MacDonell.

[Cause No. 628; filed January 29, 1918.]

SYLLABUS.
(By the Court.)

1. EMBEZZLEMENT more than most crimes requires felonious intent.

2. Id.: Ingredients of the offense include (1) wrongful conversion

to the offender's own use and (2) fraudulent breach of a fidu-
cial relation.

3. Id. : Secrecy and Concealment, if not ingredients, are at least the

usual accompaniments of the crime and their absence tends to
raise the presumption of innocence.

4. Id. : Doctrine Applied. Where the attorney in fact, who was also

a one-fifth stockholder, of a corporation was expressly author-
ized to expend its money for corporate purposes, and no other
limits were placed on his discretion, the use of its funds in
making a journey to the home office to adjust pressing matters

" Sec. 275.

UNITED STATES V. MACDONELL, JAN. 29, 1918. 681

of importance to the company after said office had failed to
answer his correspondence, does not constitute embezzlement.

Chauncey P. Holcomb, Esq., U. S. Dist. Atty., for the
prosecution.

Messrs. Sterling Fessenden and H. D. Rodger, for the
defense.

LOBINGIER, J.:

The defendant is charged with

"the crime of embezzlement: in that the said James MacDonell,
within the jurisdiction of said Court, at Shanghai, China, on or
about the twenty-ninth day of August, nineteen hundred and seven-
teen, being then the manager and attorney in fact of the MacDonell-
Chow Corporation, a corporation organized and existing under and
by virtue of the laws of the State of New York, United States of
America, and being then and there entrusted with and having the
possession, custody and keeping by virtue of his said employment,
of certain monies, to wit: the sum of Three Thousand Taels, Shang-
hai Sycee, the said sum being the equivalent of the sum of Three
Thousand, Two Hundred and Thirteen and 75/100 Dollars, United
States Gold Coin, at the rate of exchange prevailing on said last
mentioned date, of the monies and property of the said MacDonell-
Chow Corporation, did unlawfully and feloniously embezzle and fraud-
ulently convert the same to his own '^se and benefit."

At the time of the transaction specified the defendant
was not only "the manager and attorney in fact of the
MacDonell-Chow Corporation" but he was also a stock-
holder therein, owning one-fifth (Ex. 7) of its capital stock.
In an instrument (Ex. "A") executed in New York on No-
vember 2, 1916, in which the defendant is described "as
the representative and attorney in fact of the MacDonell-
Chow Corporation" he is authorized and empowered inter
alia

"to deposit in bank or banks or other financial institutions in China,
Japan or elsewhere in the name and for the account of this cor-
poration, such moneys of this corporation as may come into his
hands in the course of the business of this corporation, and to draw
against such bank account or accounts with othei.' financial institutions
by cheque, draft or otherwise, signed with the nam^ of thi^ corpora-
tion by James MacDonell, Attorney, and to expend such moneys of
the corporation as may be entrusted to him for the purposes of the
corporation; to collect all moneys due or that may become due to

682 I EXTRATERRITORIAL CASES.

the corporation, and to give full receipts, acquittances and releases
therefor.

And to do all things and to perform all acts in the name of this
corporation, and to sign all documents and papers of any descrip-
tion without reservation that may be necessary or desirable in the
premises, or otherwise, in the prosecution of the business or litiga-
tion of this corporation in China, Japan or elsewhere, with full power
of substitution and revocation, hereby ratifying and confirming all
that its said attorney or his substitute may have done or may do in
the future, the same to all intents and purposes as the said corpora-
tion might or could do vdthout reservation or restriction."

Notwithstanding these extensive powers and duties, no
agreement seems ever to have been made between the com-
pany and the defendant as to the latter's compensation.
From the time of his arrival in China, however, the course
of dealing would seem to imply an understanding that
defendant was to use his discretion in expending so much
of the corporate funds as might be necessary for his per-
sonal as well as the company's needs. It appears that
during the first eight months of 1917 he drew about Tls.
1,000 per month and that this was duly reported to and
known by the corporate officers. On July 19, 1917, the
Vice-President of the company, who is also the sister-in-
law of the defendant, sent him a letter (Ex. 4) reading
as follows:

"We wrote you last January or February after holding a Directors*
meeting, requesting you to notify us what salary you think would
be fair and just for you to receive for your services for the year.
We have never had a reply to this letter and would be very grateful
if you would give this your attention. So far the books show
that you are drawing at the rate of about $8,030 per year. This
seems to me to be a t ifle excessive as I should think $500 per month
would be ampla sala y f^r you to live on n Chi a. Of course, I
know nothing about your requirements there, but I think, never-
theless, at this time you should not take any more monay out of the
firm than is necessary."

On the other hand defendant states, and it is corrobo-
rated by the company's bookkeeper, that the New York
office of the company failed to answer his letters, and that
there were numerous questions which he considered "vital"
to the interests of the company pressing for settlement;
that he was unable to condense an intelligible statement

UNITED STATES V. MACDONELL, JAN. 2 9, 1918. (j83

thereof into a cablegram and that since he could receive
no reply by mail he decided that the best course for all
concerned was to proceed to New York himself and explain
the situation in person. He also decided to take with him
a Chinese employee (Stone Sung) who was familiar with
prices and business conditions in China and whose assist-
ance he considered valuable. He further testifies that the
company was at the time overdrawn at the bank and that
in order to obtain funds for the journey he was obliged to
use a sum which had originally been furnished him for
possible investment in a concern known as the MacDonell
Land Savings Association; that after investigation it was
decided not to make such investment; that he concluded
not to deposit the amount in the bank to the credit of the
MacDonell-Chow Corporation for the reason that it would
be used against its overdraft, and that instead he deposited
it to the credit of the MacDonell Land Savings Association
and later drew it out and used it for the purpose of pur-
chasing tickets and providing expense money for himself
and the Chinese in their trip to New York. This is the
item and transaction out of which the charge arises.

Embezzlement has been defined by the Federal Supreme
Court ^ as

"the fraudulent appropriation of property by a person to whom such
property has been intrusted or into whose hands it has lawfully
come."

It involves therefore two general ingredients:- (1)
wrongful conversion to the offender's own use and (2)
fraudulent breach of a fiducial relation. According to
defendant's contention the first ingredient is wanting. He
claims that he did not convert the funds in question to
his own use but employed them in company business, viz.,
a necessary journey to New York to adjust matters of
pressing importance which had failed to receive attention
by correspondence. And here it may be observed that the

'Mr. Justice Brown, in Moore v. U. S. 160 U. S. 268, 269, 16 S.
Ct. 294, 40 L. ed. 422.

'U. S. V. Harper, 33 Fed. 471, 474; Reeves v. State, 95 Ala. 31,
41, 11 So. 158.

684 I EXTRATERRITORIAL CASES.

essence of embezzlement, even more than of most crimes,
is felonious intent."

For the same reasons defendant urges that there was no
fraudulent or other breach of trust and cites as conclusive
on this point the fact that he had at no time concealed the
use of the money for the trip to New York. Secrecy in-
deed is an almost invariable accompaniment of such fraud.
In England it appears that the secrecy is an essential ele-
ment. Thus in a leading case : *

"The prosecutors were owners of a vessel, and the prisoner was
in their service as her master. The vessel was chartered to carry
culm from Swansea to Plymouth for a coal merchant resident at
the latter place. The culm when delivered at Plymouth weighed 215
tons and the prisoner received payment from the coal merchant for
the weight accordingly. When he was asked for his account by
an owner, he delivered a statement, acknowledging the delivery of
210 tons, and the receipt of freight for so much. Being further
asked whether this was all he had received, he answered that there
was a difference of five tons between the weighing at Swansea and
the weighing at Plymouth and that he had retained the balance
for his own use, according to a recognized custom between owners
and captains in the course of business.

"There was no evidence of the alleged difference of measurement
in weighing, or of the custom asserted by the prisoner."

The Court, per Cresswell, /., summed up the case as
follows :

"I think that this does not amount to embezzlement. Embezzle-
ment necessarily involves secrecy; the concealment, for instance, by
the defendant of his having appropriated the money. If, instead
of denying his appropriation, a defendant immediately owns it, al-
leging a right, or an excuse for retaining the sum detained, no
matter how frivolous the allegation, and although the fact itself
on which the allegation rests were a mere falsification; as if in
the present case, although it should turn out that there was no such
difference as that asserted by the captain, between the tonnage as
measured at Swansea and at Plymouth, or that there was no such

'■'Arkansas. Fleener v. State, 58 Ark., 98, 23 S. W., 1.

Michigan. People v. Hurst, 62 Mich., 276, 28 N. W., 838, Beale's
Criminal Cases, 716.

Neiv Jersey. State v. Lyon, 45 N. J. L., 272.

South Carolina. State v. Butler, 21 S. C, 353.

See also 15 Cyc, 491; II Wharton Criminal Law, sec. 1277.

* Reg. V. Norman, Carrington & Marshman, 501, 41 E. C. L., 274,
14 Am. Criminal Rep., 326 (1842).

UNITED STATES V. MACDONELL, JAN. 29, 1918. 6^5

custom as is set up. I do not say to what species of offence this
may amount, but in my opinion not to embezzlement."

This decision has been cited and its doctrine generally
followed in America,^ tho the rule has been laid down '^
that

"While secrecy or concealment may be evidence tending to show
a criminal intent, yet, if the evidence shows that the criminal acts
constituting embezzlement were committed by the defendant, it is
no defense that they were committed openly."

If a case were ever to arise where a fraudulent breach of
trust could b^ "committed openly" and without concealment
we would not be disposed to hold that the mere absence of
secrecy would constitute an excuse. The difRculty is, how-
ever, that fraud and frankness in such cases are usually in-
compatible and that when the act is "committed openly"
there is necessarily no fraudulent intent. While, therefore,
in the absence of an express Federal decision, we need not
follow the English case above cited to the extent of holding
that secrecy is an essential ingredient of embezzlement, we
must, nevertheless, regard the absence of secrecy and con-
cealment as raising the presumption that no fraud was
intended.

What would constitute secrecy and concealment has been
judicially indicated:

"Such concealment might have been effected by false entries
upon the books of the company, or by the failure to make any entry
upon them at all, or by representations known to be untrue, or by
failure to report the receipt of the money when it was his duty to do
so, or by any device resorted to for the purpose of disguising the
truth fx'om the knowledge of his principal, and thus inducing it to
rest in a false security." ^

But nothing of the sort was done here. Entries of the
transaction were regularly made at defendant's direction.
Soon afterward the books were examined by the complaining
witness, and it is admitted that no obstacle was placed in
the way of such examination. It is true that the item in
question was transferred from one account to another but

'15 Cyc, 495 (note 16), 508 (note 70). Cf. Fleener v. State, 58
Ark., 98, 23 S. W., 1.

'People V. Connelly (Cal.), 38 Pac, 42.
' Fleener v. State, 58 Ark., 98, 23 S. W., 1.

686 I EXTRATERRITORIAL CASES.

the defendant gives a practical reason already mentioned
for this and one which in no way implies concealment from
his company.

And here it may be observed that a mere difference of
opinion between an accused and his employer as to the
proper use of latter's money will not support a prosecution
for embezzlement provided there is no actual intent to con-
vert the money and commit a fraudulent breach of trust.
In this case, as we have seen, the defendant was authorized
"to expend such moneys of the corporation as may be en-
trusted to him for the purposes of the corporation."

Necessarily discretion was vested in some one to determine
what these "purposes" were. The company officers do not
claim that they ever gave the defendant instructions de-
fining the phrase "purposes of the corporation." The Vice-
President indeed complained that his expenditures seemed
to be "a trifle excessive" and suggested that he "should not
take any more money out of the firm than necessary." But
in the absence of specific instructions this also left the de-
fendant to determine what was "necessary." Defendant
claims that he considered the New York trip "necessary"
and the complaining witness admits that he never gave the
defendant any instructions to the contrary. It must be
remembered also that defendant was a one-fifth stock holder
and to that extent the company's interests were his own.

Of course if there had been a specific agreement fixing
the amount of defendant's compensation and limiting also
the amount of his expenditures and he had then exceeded
the limit a different case would have been presented;
but the company not only permitted the defendant to come
to China without such an agreement but conferred exten-
sive discretionary powers upon him and allowed him to
continue to exercise them even after officers were aware
that his expenses were what seemed to them "a trifle ex-
cessive." And when after a year or more of such a course
of dealing defendant concluded that the best interests of
the company required him to go to New York and to take
with him a native of the country, well versed in the local
methods of doing business, we cannot say that the use of
company funds for carrying out such a project shows an

UNITED STATES V. JUVENILE OFFENDER, FEB. 9, 1917. 687

intent to convert them to his own use or to commit a fraud-
ulent breach of trust.

The company saw fit to repose in the defendant a wide
discretion which it failed to limit in any legal or recognized
way. Whether defendant exercised it always wisely is not
a question for us to decide in this proceeding. If there be
a civil liability it can be determined in the action which,
according to the testimony, is now pending in the state of
New York. But in a criminal proceeding like this the pros-
ecution must show such felonious intent beyond a reason-
able doubt. We feel satisfied under the circumstances of
this case a conviction could not be sustained on appeal and
we have, therefore, no alternative but to direct an acquittal,
with costs de officio.

IT IS so ORDERED.

IN THE UNITED STATES COURT FOR CHINA.
United States v. A Juvenile Offender.

[Causes Nos. 637, 638; filed February 9, 1918.]

SYLLABUS.
(By the Court.)

1. CmMINAL LAW: PENALTIES for false pretense and petit larceny in

this jurisdiction may extend to one year or more.

2. Id.: Juvenile Offenders are not, according to the notions of mo-

dern penology, to be treated in the same way as adults.

3. Id. : The Juvenile Court Law, enacted by Congress for the Dis-

trict of Columbia, found necessary and suitable in this juris-
diction and applied.

Chauncey P. Holcomb, Esq., U. S. Dist. Atty., for the
prosecution.

The accused appeared in his own behalf.

LOBINGIER, J.:

The accused, who is an American subject, born in Shang-
hai of Filipino parentage, pleads guilty to two informations,
the first charging him with

"the crime of false pretense in that * * * on or about the thirty-
first day of January, 1918, at Shanghai, in the Republic of China,
and within the jurisdiction of said Court," he "did by false pretense

ggg I EXTRATERRITORIAL CASES.

and intent to defraud, obtain a pair of shoes, of the value of less
than thirty-five dollars."

The second charges him with

"the crime of Petit Larceny, in that * * * on or about the fif-
teenth day of December, 1917, at a dw^elling house known as 139
Paoshang Road, in Shanghai, in the Republic of China, and within
the jurisdiction of said Court," he "did feloniously take and carry
away a blue cloth coat, the personal property of a Chinese woman,
whose name is unknown, of the value of less than thirty-five dollars."

The complaining witnesses in each cause are defendant's
father and mother, each of whom, testifying on the ques-
tion of the proper penalty, relates a harrowing story of
youthful incorrigibility and lawless, irresponsible conduct
for which there appears to be no remedy except authorita-
tive discipline ; for the father is a mariner and necessarily
absent from home a considerable portion of the time, and
the mother states that she is absolutely unable to control
the accused.

Both of the offenses charged and admitted in these pro-
ceedings are serious, each justifying penal servitude.^ In
this case, however, the offender, according to his parents,
is but fifteen years old and it is contrary to the spirit of
modern penology to impose upon juvenile offenders (whose
need is reclamation and reform rather than punishment)
the penalties intended for adults. As the result of a grow-
ing sentiment in that direction juvenile courts have been
established in many parts of the United States and special
laws have been enacted for the juvenile offender. Such

^ False Pretense. Act of Congress of June 30, 1902, Sess. II, 31
U. S. Stats, at Large, Ch. 854, (32 U. S. Stats, at Large, Ch. 1329,
Dist. of Col. Code), sec. 842 (maximum penalty one year and fine);
Act of Congress of March 3, 1899, 30 U. S. Stats, at Large, Ch. 429,
Tit. I, sec. 54, Alaska Compiled Laws, sec. 1934 (maximum penalty five
years).

Petit Larceny. Act of Congress of June 30, 1902, 32 U. S. Stats,
at Large, Pt. I, p. 535 (Dist. of Col. Code), sec. 827 (maximum penalty
one year and fine) ; Act of Congress of March 3, 1899, Sess. Ill, 30
U. S. Stats, at Large, Ch. 429, Tit. I, sec. 41, (maximum penalty one
year and fine); Fed. Pen. Code, (1910), sec. 287 (maximum penalty
one year and fine).

UNITED STATES V. JUVENILE OFFENDER, FEB. 9, 1918. 689

a statute - was passed by Congress in 1906 and, while
primarily intended for the District of Columbia, seems fully
applicable here by virtue of the prior enactment extending
over Americans in China "the laws of the United States
* * * so far as is necessary to execute such treaties"
and "so far as such laws are suitable," ^ etc.

The court which is empowered to enforce and apply said
statute (and which in this jurisdiction would necessarily be
this because none other is provided and the one nearest
corresponding must therefore be utilized ^) is expressly
authorized

"to defer sentence, at its discretion, in the case of any juvenile of-
fender under the age of seventeen years, and parole such child under
the care of the chief probation officer for a probation period discre-
tionary with him, who shall cause said child to return to court at the
end of such term either for sentence or dismissal." °

The Supreme Court has indeed decided ^ that the Federal
Courts have no inherent power to suspend sentences, but
that decision would clearly not apply to cases arising under
a statute which, like this, expressly provides for such sus-
pension. We hold that the statute is both necessary and
suitable for cases like the one at bar because the laws
above referred to, prescribing the penalty, are wholly un-
suitable. We feel also that the offender, being a Filipino,
can most properly be placed in the custody of the Philippine
authorities.

Final sentence is accordingly suspended in these causes,
and the Philippine Director of Prisons, Dr. Waller H. Dade,
is hereby named as probation officer to whose care and
custody the accused is accordingly committed for a proba-

= 34 U. S. Stats, at Large, pt. I, p. 73, Dist. of Col. Code, App.
sec. 5.

' 12 U. S. Stats, at Large, p. 73, sec. 4; U. S. Rev. Stats., sec. 4086;
Biddle v. U. S., 156 Fed. 759, ante, p. 120.

* Alaska Gold Mining Co. v. Ebner, 2 Alaska, 611. Cf. U. S. ex rel.
Raven v. McRae, No. 586, ante, p. 655.

' Act of Congress of March 19, 1906, 34 U. S. Stats, at Large, Pt.
I, p. 73 (D. C. Code, Appendix), sec. 5.

° Ex Parte U. S., 242 U. S., 27, 61 L. ed., 129.

14008 O. W. 44

690 I EXTRATERRITORIAL CASES.

tion period discretionary with said officer but not exceeding
three years, during which time the accused may, in the dis-
cretion of said probation officer, be confined in any penal or
reformatory institution of the Philippine Government under
the control and direction of said officer. Pending his
transfer to the custody of said officer the accused is re-
manded to the custody of the United States Marshal for
China.'

IN THE UNITED STATES COURT FOR CHINA.

Mitchell, Petitioner, v. Mitchell, Respondent.
[Cause No. 603; filed February 14, 1918.]

SYLLABUS.

(By the Court.)

1. ADULTERY. Unexplained occupancy of the same bed with another,

not a spouse, of the opposite sex, raises the presumption of
adultery on the part of a spouse.

2. Id.: Evidence received and found sufficient to establish such oc-

cupancy.

' "So soon after our article on the need of new methods of dealing
with juvenile offenders in Shanghai as well as the 'won't works,' it
is interesting to see that the United States Court has had such a
case before it, which it has been able to dispose of very satisfactorily
by sending the offender to a reformatory in Manila for any necessary
period up to three years. Long before that, it is to be hoped, the
youth will have seen the folly of his ways. In having an available
reformatory at Manila and laws which enable juvenile offenders to
be sent there the American community is more fortunate than others.
The British have nothing to offer but gaol, and both police and ma-
gistrate are naturally most reluctant to send boys there who, under
the wiser treatment which most civilized communities have now in-
stituted, might be made useful members of society. The difficulty is,
of course, that there are not enough of such cases to warrant building
a reformatory. Some years ago one was built privately and presented
to the Hongkong Government, which eventually found a use for it by
turning it into a Door of Hope. Still, juvenile offenders exist and
will not tend to diminish in number. The industrial homes suggested
for 'won't works' with a separate wing for juveniles might meet the
need." [North China Daily News (British Official Organ), Feb. 11,
1918.]

MITCHELL V. MITCHELL, FEB. 14, 1918. 691

Messrs. Jeryiigan, Fessenden & Rose, by Mr. Rose, for
the petitioner.

No appearance for the respondent.

Chauncey P. Holcomb, Esq., U. S. Dist. Atty., appeared
as amicus curiae and expressed no objection to the decree.

LOBINGIER, J.:

The petition in this cause alleges

"1. That petitioner is an American citizen at present residing at
Tientsin, China, and has resided continuously in China since Sep-
tember, 1910.

2. That on or about the 11th day of November, 1905, your petitioner
was lawfully married to the said respondent, an American citizen,
at Wakefield, Rhode Island, United States of America.

3. That after the said marriage your petitioner lived and cohab-
ited with his said wife until May, 1914, and your petitioner and
respondent are still husband and wife.

4. That on or about the 10th day of May, 1914, at Wenchow, China,
the said respondent committed adultery with one Bjarne Junl, a native
of Bergen, Norway."

No answer has been filed to this petition, but a letter
(Ex. "B") addressed to petitioner's counsel and bearing a
signature identified as respondent's is produced which
acknowledges receipt of a "copy of petition and summons."
Service by publication, in accordance with this Court's order
of July 17, 1917, is also shown ^ by the affidavit of the
publisher and the letter above mentioned announces re-
spondent's intention not to appear.

In support of his averments petitioner testifies that in
September, 1913, he moved to Wenchow with his wife and
that the other party named in the petition was the chief
officer on the ship conveying them to that point; that
respondent and said party became acquainted at that time
and that thereafter the man in question was a frequent
visitor at their home and remained there much of the time
when the petitioner was absent on necessary business;
that at first he suspected nothing wrong but later remon-

' Act of Congress of June 6, 1900, Sess. I, 31 U. S. Stats, at Large,
Ch. 786, Tit. I, sec. 48.

592 I EXTRATERRITORIAL CASES.

strated and that on the night of the date above mentioned
he was awakened by a noise in an adjacent room where
his wife slept; that he called to her, and not receiving a
satisfactory answer went to her room, turned on a light
and found the party in question in bed with the respondent,
after which he no longer cohabited with her but sent her
away.

The evidence of petitioner's three other witnesses cor-
roborates him as to the familiar and suspicious relations
of respondent and the other man and we are disposed also
to agree with the contention of petitioner's counsel that
respondent's failure to contest this proceeding after actual
notice and ample time for so doing, especially in view of
its very damaging charges, not all of which are quoted
above, constitutes further corroboration as has been held
already by this Court.- Letters from respondent are also
produced which amount very nearly to a tacit confession
of wrong doing.

The circumstances detailed by the petitioner constitute a
ground for divorce a vinculo matr'imonii under Acts of
Congress '■'■ applicable to this jurisdiction. As is said in a
well knov^Ti work :

"Adultery may be established by the fact that the parties occupied
the same room at night or the same bed, in the absence of an ex-
planation of the incriminating circumstance." *

The Court, therefore, finds from the evidence that the
averments above excerpted from the petition are true ;
that respondent did commit adultery as there charged and
that petitioner has never condoned the offense and is en-
titled to the relief prayed.

It is accordingly considered and decreed that the bonds
of matrimony heretofore existing between the petitioner
and respondent be and they thereby are dissolved absolutely
and that a decree of divorce a vinculo matrimonii be and
hereby is granted to the petitioner. The respondent not

- Steehler v. Steehler, No. 461.

' Act of March 3, 1901, Sess. II, 31 U. S. Stats, at Large, Ch. 854,
(Dist. of Columbia Code), sec. 966. Cf. Act of Congress of June 6,
1900, Sess. I, 31 U. S. Stats, at Large, Ch. 786, Tit. II, sec. 467.

* 14 Cyc, 696, citing numerous authorities.

IN RE wade's will, FEB. 2 0, 1918. g93

having formally appeared, the Court withholds for the
present any award of other relief against her including
costs.

IN THE UNITED STATES COURT FOR CHINA.
In re John J. Wade's Will,

[Cause No. 531; filed February 20, 1918.]

SYLLABUS.
(By the Court.)

I.WILLS: Construction. The chief guide in testamentary con-
struction is the testator's intent.

2. Id. : Defective Designation. Where, as is frequently the case,

such intention is imperfectly or defectively expressed, as by
incorrect designation of the beneficiary, the intent will never-
theless be carried out as nearly as possible if it can be as-
certained.

3. Id. : Rule Applied. A designation of "my cousin Bernice Seldon

of West Sommerville, Mass.," held applicable to Bernice Drisko
v^hose father's given name is Seldon, upon proof that she v/as the
sole cousin of the testator, named Bernice, in that place, and
that she vi^as a favorite of his.

4. Id. : An Administrator's Fee of seven per centum of the total

assets considered sufficient under the circumstances.

Messrs. Burdette, Warclwell & Ives, of Boston, for the
claimant.

No appearance contra.

Ralph A. Frost, Esq., administrator cum testamento an-
nexo, for the estate.

LOBINGIER, J.:

This cause comes on for hearing upon the petition of
the executors and administrator cum testamento annexo
for a construction of the will as regards the identity of
its chief beneficiary and upon the subsequent petition for
approval of the final account, final distribution of the assets
and award of compensation to the personal representatives.

The will names as its chief beneficiary "my cousin Ber-
nice Seldon of West Sommerville, Mass., U. S. A." De-
positions taken in Boston upon a commission issued under

g94 I EXTRATERRITORIAL CASES.

seal of this Court show that the testator had no relative
of that name in said place or elsewhere but did have a
second cousin with whom he corresponded (having re-
ceived from her a letter signed "Gertrude, Seldon & Ber-
neese" dated less than two months before his death) named
Gertrude L. Drisko whose husband's first name is "Seldon"
and who has a four-year old daughter named Bernice G.
Drisko. In another, written in 1915 to Mrs. Drisko and
attached to one of the depositions above mentioned, the
testator twice refers to "Bernice" in terms of endearment
and it appears that Mrs. Drisko received a letter from him
as late as March, 1916.

The will was prepared in extremis, being dated only the
day before testator's death, and one of the subscribing wit-
nesses, Mr. Kemp, testified that the testator, while mentally
sound, was very tired and when asked to whom he wished to
leave his property replied "to my cousin — Bernice Seldon —
of West Sommerville, Mass.," the spelling of the town (with
two "m's") being that of the draughtsman rather than the
testator's. Altho notice of the hearing on probate of the
will and notice to creditors to present their claims M^ere
both duly published, no other claimant as beneficiary than
Bernice G. Drisko has yet appeared and the question is
therefore presented whether she is entitled to the benefits
of the instrument.

Mistakes in the name of an intended beneficiary are not
infrequent on the part of testators especially where, as in
the present case, the will is executed at the end of a long
illness.^ Indeed, as was observed by a celebrated English
Judge - in awarding to an eldest son named Robert a devise
to a second by that name who was proved not to exist :

"It has generally been found, where mistakes have been assumed
to have been made, either in the name or description of the devisee,
or the property devised, that the mistake has been in the name, and
not in the description. * * * If a party means to describe a
particular object w^hich he has in view^, he is more likely to be cor-
rect in descriptions than in names."

' Morse v. Stearns, 131 Mass., 389.

■ Lord Abinger, C. B., in Bradshaw^ v. Bradshaw^, 2 Y & Col. (Exch.),
86; 6 L. J. Eq. (N. S.), 1 (1836), followed in Thayer v. City of
Boston, 15 Gray (Mass.), 347 (1860).

IN RE wade's will, FEB. 20, 1918. 695

But the courts do not permit such a mistake, where
clearly apparent, to vitiate a testament otherwise valid.
As was said in one case : ^

"It is a general rule that where the naine or description of a
legatee is erroneous, and there is reasonable doubt as to the person
intended to be named or described, the mistake will not disappoint
the bequest. The error may be rectified and the true intent as-
certained in two ways: First, by the context, and in some cases by
parol testimony; thus an error in the name of the legatee may be
obviated by the accessary of his description, as where a legacy is
given 'to my name-sake Thomas, second son of my brother,' and
the brother had no son named 'Thomas,' but his second son is
named William, the latter will take."

The fundamental rule and guide in the construction of
wills is the testator's intent and if this can be gathered
either from the instrument itself or from extrinsic sources
it will be carried out if possible even tho the intent may
have been imperfectly or defectively expressed. Among
the numerous decisions applying this principle only those
based on similar facts need be noted.

Tho the will named as beneficiary "Cornelia Thompson"
the bequest was awarded by the Chancellor (Kent) to
Caroline Thomas. The averments in the bill, which were
admitted, show considerable resemblance to the facts in
this case, viz. :

"That the testatrix had been dead upwards of two years, and
that no person by the name of Coi-nelia Thompson had appeared to
claim the legacy, and that they believed and admitted, that the plain-
tiff was the person intended; for she was a great favorite with the
testatrix, and it was understood and believed that some provisions
by will was to be made for her. That a great friendship had existed
between the testatrix and the mother of the plaintiff, who died
some time before the testatrix." ■*

Where a will bequeathed an annuity "to my sister Hono-
rine Degrand of Aix in France" and a codicil, which re-
voked all the bequests of the will, bequeathed an annuity
to "Miss Delphine Degrand of Aix in Provence," the an-
nuity was awarded to the former upon proof that she was

' Lowe V. Carter, 55 N. C. 352, 358, citing Williams, Exrs. 736.
'Thomas v. Stevens, 4 Johns. Ch. (N. Y.) 607 (1820), citing
Beaumont v. Fell, 2 P. Wms. 140; Bradwin v. Harpur, Amb. 374.

696 I EXTRATERRITORIAL CASES.

the only sister who had iever lived in Aix and that, tho
testator once had a sister named Delphine, she was long
since deceased. The Court (per Metcalf, J.) said that the
testator

"erroneously gave to the legatee the name of Delphine; but he
correctly described her as of Aix in Provence. The bequest which
he nominally made to Delphine must therefore be paid to Honorine,
for whom it was intended." *

Where the testatrix had two nephews, Joseph White
Sprague and Joseph Sprague Stearns, a bequest therein "to
my nephew J. S. Sprague" was held by inference, and
without the aid of extrinsic evidence, to belong to the
former.

"Sometimes it happens," observes the Court,* "that a will is
made when the testator is in extremis, when his voice is feeble
and low, and his enunciation indistinct. Sometimes a beneficiary
is spoken of by the testator by an abbreviated or by a pet
name. The reported cases show many instances of these and other
kinds of difficulties and obscurities; but no facts in this case make
it necessary or even proper to refer to all the cases which have oc-
curred, nor to the rules which it has been found necessary to es-
tablish in determining them. It is sufficient for us to say that the
bequest is to *J. S. Sprague,' with the use of initials only to indicate
the Christian name of the legatee; that that designation is more
nearly applicable to Joseph White Sprague than to Joseph Sprague
Stearns, inasmuch as the surname corresponds, and the variance
is only in the initial letter of the middle name. It cannot be doubted
that the bequest was intended for one of these nephews; and, taking
all the extrinsic evidence of relation to the parties and circumstances
into consideration, there is not sufficient to control the inference in
favor of the nephew Sprague."

A bequest to "Joseph C. Link's children, Mary and Sethe
Link" was awarded in part to Sarah, familiarly called
"Sadie," upon a showing that she was the only daughter
other than Mary.^

A testatrix named as beneficiaries all of her brother's
children except one whose name was David. The will men-

= Thayer v. City of Boston, 15 Gray (Mass.), 347 (1860), citing
Smith v. Coney, 6 Ves., 42.

"Morse v. Stearns, 131 Mass., 389 (1881).

" Lanning v. Sisters of St. Francis, 35 N. J. Eq., 392 (1882). The
report contains a valuable note on the point under discussion.

IN RE WADE'S WILL, FEB. 20, 1918. 697

tioned "Dickey," but as there was no child by that name
the bequest was awarded to David.^

So a legacy for "Otto, the child of Martha Kornetzky"
was given to Arthur, who was shown to be the only child
of the person named tho he was also the testator's illegiti-
mate son. The Court said

"that is certain which can be made certain. There was no such
child but this one and it is evident that the child was in the mind
of the testator and that satisfies our statute.""

A testator named Bradford executed an holographic will
which recited "I institute my brother James Brother heir
to my whole estate." The property was distributed to
James Bradford because, as the Court observed,

"The testator had but one 'brother James;' hence the addition of
the word 'Brother' cannot possibly be anything else than an in-
advertent repetition of the word 'brother.' " ^°

A bequest to "S. G. son of Captain J. F. S." was awarded
to "S. G. son of Captain J. F. H."after a showing of the for-
mer's non-existence.^^

It will be seen that in few of the cases above reviewed ^-
is the evidence of mistake stronger than here, and in view
of the testator's enfeebled physical condition, his evident
fondness for his cousin's child and the inapplicability of
the designation to any other person, the presumption seems

'Acton V. Lloyd, 37 N. J. Eq. 5 (1883). Cf. Taylor v. Tolen, 38
N. J. Eq. 91.

*/n re Gorkow's Estate, 20 Wash. 563, 56 Pac. 385.

" Succession of Bradford, 124 La. 44, 49 So. 972.

" Hawkins v. Garland's Admr. 76 Va. 149.

" Cases are also numerous where bequests to charitable institutions
by incorrect names have been upheld on a principle analogous to
that of the cy pres doctrine:

Arkansas. McDonald v. Shaw, 81 Ark. 235, S. W. 952.

Nebraska. Second United Presbyterian Church v. First United
Presbyterian Church, 71 Neb. 563, 99 N. W. 252.

New Hampshire. Trustees v. Peaslee, 15 N. H. 317.

New Jersey. American Dramatic Fund Assoc, v. Lett, 42 N. J. Eq.
43, 6 Atl. 280. Van Nostrand v. Board, 59 N. J. Eq. 19, 44 Atl. 472.

Neiv York. Lefevre v. Lefevre, 59 N. Y. 434.

Cf. Gilmer v. Stone, 120 U. S. 586, 30 L. ed. 734.

698 I EXTRATERRITORIAL CASES.

very strong that inadvertently he linked the first name of
his intended beneficiary to that of her father, forgetting
at the moment her surname.

But while such appears to be the inevitable conclusion,
and we are prepared so to find upon the evidence before
us, we desire nevertheless, especially in view of the dis-
tance from those who might be interested, to give every
possible opportunity for other claimants to appear or to be
discovered. Final distribution is therefore postponed until
June 1, 1918, and meanwhile further effort will be made to
locate other claimants answering to the description in the
will. If none such appears and proves a better title by the
date named, it is ordered that final distribution be made
to the duly appointed guardian of the said Bernice G.
Drisko. And upon the production and filing of a receipt in
full from said guardian, the executors and administrator
cum testamento aniiexo will stand discharged and the estate
will be considered closed.

Meanwhile their final account is approved ,and, it ap-
pearing that notice to creditors has been duly published and
that the time for filing claims has expired, it is further
ordered that all claims not filed within said time be and
the same are hereby barred.

An allowance of ten per centum of the assets of the estate
is suggested as a proper fee for the services of the personal
representatives ; but we do not find any case in which this
Court has allowed that much. The administrator, indeed,
is a lawyer and has performed his duties with fidelity and
efficiency; but they do not appear to have required the
exercise of much professional skill and knowledge. More-
over, it was understood at the time of his appointment that
there would be no extra allowance for legal services and
that the executors would ask nothing. Under these cir-
cumstances it is believed that a commission of seven per
centum of the total assets,'-^ which is still more than this
Court usually allows, will afford fair compensation to the
administrator, and it is accordingly awarded.

" Act of Congress of June 6, 1900, sess. I, 31 U. S. Stats, at Large,
Ch. 786, tit. II, sec. 869.

IN RE LEE'S WILL, MARCH 30, 1918. 699

IN THE UNITED STATES COURT FOR CHINA.
In re Robert Edmund Lee's Will.

[Cause No. 608; filed March 30, 1918.]

SYLLABUS.
(By the Court.)

1. CITIZENSHIP by birth carries with it certain privileges not avail-
able to naturalized citizens.

2 Id.: Foreign Residence. Among these is greater latitude as re-
gards residence abroad.

3. Id. : The Modes of Expatriation prescribed by the Congressional

Act of 1907 are exclusive.

4. Id. : Naturalization. The benefits of a father's naturalization

accrue to his minor children.

5. Id. : Extraterritoriality. American citizens residing in extrater-

ritorial countries remain ''subject to the jurisdiction * * *
of the United States" to a much greater extent than those
residing in other foreign countries.

6. EVIDENCE: COPIES OF PARISH REGISTERS, duly authenticated, and

admissible in evidence in the jurisdiction vi^here they are issued,
will be admitted here to prove an act recorded therein.

Ralph A. Frost, Esq., and Jeimigan, Fessenden & Rose by
Mr. Rose, for proponent.

Chauncey P. Holcomb, Esq., U. S. Dist. Atty., appeared
for the government but offered no objection to the decree.

LOBINGIER, J.:

The petition in this cause contains the usual averments
for the probate of a will alleging inter alia "that Robert
Edmund Lee, an American citizen, * * * died on July
4, 1917, in the city of Kiukiang." Evidence in support
of the petition is presented in the form of depositions, one
by decedent's wife and another by Ralph A. Frost, Es-
quire, who testifies that the deceased was "born in St. Louis,
Mo., about 18G7." A document emanating from the Consul-
General of the district where the deceased lived and pre-
sented by the District Attorney, who was requested by
the Court to appear in the Government's behalf in this
cause, contains the following recital:

"Robert Edmund Lee was born on April 22, 1868, at St. Louis,
Missouri. His father, Alia Lee, a Chinaman, was married to Sarah

700 I EXTRATERRITORIAL CASES.

Lee, an American woman, and he, Alia Lee, was naturalized in St.
Louis Criminal Court on September 17, 1868."

In addition to the foregoing the proponent presents a
copy (Ex. "H"-9) of the Parish Register of Grace
(Episcopal) Church of St. Louis, authenticated by the priest
in charge, from which it appears that one Robert E. Lee
was baptized therein on June 2, 1867. The document
further recites that he was born on April 20 of the same
year and that his parents were Alia and Sarah Lee. Copies
of such registers are admissible in England and in a major-
ity of American jurisdictions which have passed on the
question.^ They are not admitted in Massachusetts, but
there a civil registry of such facts has been kept according
to law since 1639 and it, and not the parish registry, is
the official one.- There being no civil registry provided
in this jurisdiction, the decedent not having been born
here anyway, and the document being admissible in the
jurisdiction where it was issued ^ we hold that said cer-
tificate is competent evidence of decedent's baptism on the
date and at the place recited therein.

It is true that the said document does not recite the place
of decedent's birth but there is offered in evidence (Ex.

^England. Draycott v. Talbot, 3 Brown, P. C. (2nd ed.), 564; May
V. May, 2 Strange, 1073; Wihen v. Law, 3 Starkie, 63; Doe v. Barnes,
1 M. & Rob., 389; Starkie, Evidence (4th Eng. ed.), 299, note f.

Federal. "The entries in the register of burials, and in the family
Bible, are admissible evidence in a case like the present; and if there
were no other proof of the death of Charles Willing, the ancestor
of the complainants, they might be considered as showing his death
in 1788." Lewis v. Marshall, 5 Pet., 470, 8 L. ed., 195.

Louisiana. Succession of Justus, 48 La. Ann., 1096, 20 So., 680.

Michigan. Hunt v. Supreme Council, 64 Mich., 671, 31 N. W., 576;
Durfree v. Abbott, 61 Mich., 471, 28 N. W., 521; Hutchins v. Kimmell,
31 Mich., 125.

Missouri. Childress v. Cutter, 16 Mo., 24, 46.

Neiv Jersey. Supreme Assembly v. McDonald, 59 N. J. L., 248,
35 Atl., 1061.

Philippines. Adi-iano v. De Jesus, 23 Phil., 350.

- Kennedy v. Doyle, 10 Allen, 161, Thayer's Cases on Evidence, 437.

' Childress v. Cutter, 16 Mo., 24, 46.

IN RE lee's will, MARCH 30, 1918. 701

"B") a certificate issued by the Clerk of the Criminal Court
of St. Louis on September 17, 1868, reciting that

"Alia Lee, a native cf China, who applies to be admitted a citizen
of the United States, comes and proves to the satisfaction of the
Court that he has resided in the United States at least five years
* * * is admitted a citizen of the United States." *

The appearance of the identical name of Alia Lee in both
of these documents raises the presumption that they relate
to the same person '' while the judicial administration of
the oath of allegiance recited in the certificate last men-
tioned "amounts to a judgment of the court" whose recitals
are presumed to be correct." It thus appearing that Alia
Lee had "resided in the United States at least five years"
on September 17, 1868, we feel justified in finding that the
child which he and his wife presented for baptism on
June 2, 1867, and whose birth is recited as having occurred
on April 20, was born in the United States. Under the
Federal Constitution '

"All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States."

It is true that the amendment containing this provision
was not declared to have been ratified until July 21, 1868,^

* "Some courts * * * admitted Chinese to citizenship" before
"the act of May 6, 1882 (22 Stats, at Large 61, Ch. 126)." Van Dyne,
Citizenship, 57, 58.

The contrary decisions In re Ah Yup, 5 Sawy., 155, 1 Fed. Cas.,
223, No. 104, and Re Gee Hoh, 71 Fed., 274, were rendered long after
the issuance of said certificate. On the strength of them, Thayer,
J., after having assumed jurisdiction of the Estate (U. S. Court for
China, No. 71) of Ben Hope Lee, who had a "a duly authenticated cer-
tificate of naturalization" dated Aug. 25, 1881, from the Probate Court
of Franklin County, Ohio, subsequently (March 10, 1910) declared it
"invalid and without legal effect" and ordered the assets turned over
"to appropriate Chinese Officials."

'Am. & Eng. Encyc. of Law (2nd ed.) XV, 920. Cf. Spreckels v.
Ward, 12 Phil. 418, 7 Off. Gaz. 146; U. S. v. Adolf o, 12 PhiL 299,
7 Off. Gaz. 41.

° Campbell v. Gordon, 6 Cranch (U. S.) 357, 3 L. ed. 190.

' Amendment XIV, sec. 1.

* U. S. Rev. Stats. 31, note.

702 I EXTRATERRITORIAL CASES.

which was after the birth date above recited, but tl?e rule
as to citizenship by birth was exactly the same before the
adoption of the amendment ; " the latter merely confirmed
and codified the pre-existing law.

Of course the naturalization of Alia Lee, which was au-
thorized by the law of that period, would have ipso facto
naturalized his minor child ^" even had the latter been
born outside of the United States. But we consider the
showing set forth above sufficient to prove that Robert E.
Lee was a native citizen of the United States, and that
this fact was of more importance to him than naturalization
would have been will presently appear.

The conclusions thus far reached are not disputed in any
quarter. They are in fact recited in the consular document
above quoted. That document, however, contains other
recitals from which it appears that, while the decedent
was registered in said consulate "for a great many years,"
and his registration expired only on March 15, 1915, "and
thru an oversight was not renewed," his last application
for registration was denied. The grounds of such denial
are set forth at length in the document above quoted and,
in order that the position of said consulate may be fairly
stated and fully understood, are reproduced here. They
are as follows :

"In 1880 Robert E. Lee accompanied his father and sister to China,
where his father continued to live till his death, and Robert E. Lee
has resided in Shanghai and Hankow continuously till the present
time.

"In reply to an inquiry regarding his reason in not having re-
turned to the United States since his departure in December, 1879,
he states, 'I have not returned to the United States since I departed

° U. S. v. Wong Kim Ark, 169 U. S. 649 ; 42 L. ed. 890 ; In re Look
Tin Sing, 21 Fed. 905; Lynch v. Clarke, 1 Sandf. Ch. (N. Y.), 583
(1844), where the Vice Chancellor declares at the close of an ex-
haustive review of the authorities:

"I can entertain no doubt but that, by the law of the United States.
every person born within the dominions and allegiance of the United
States, whatever were the situation of his parents, is a natural-born
citizen."

^"Campbell v. Gordon, 6 Cranch (U. S.) 357, 3 L. ed. 190; North
Noonday Milling Co. v. Orient Mining Co., 1 Fed. 522, 527. See
other authorities cited in II Corpus Juris, 1128, note 67.

IN RE lee's will, MARCH 30, 1918. 703

in 1879, the reason is, since the new law which requested American
citizens to return home after five years, I have been an invalid and
am unable to walk.' He further states, 'It is my intention to return
to the United States to reside.' Again 'as I am an invalid unable
to walk I do not know when I can return home.' No definite time
for his expected return is given. Again he says, 'The reason for
my prolonged residence in China is that I can support my self and
family by managing my business affairs here which I could not do,
if I were residing in America under my present condition.'

"The animo (us) revertendi without regard to his ability to return
is a material point in determining whether or not he has voluntarily
expatriated himself. In determining this question a number of things
should be taken into consideration, and tho he stated that he
intends to return, his life, his property, his family, his connections
(business and social) are such as to raise doubt which is almost,
if not quite, conclusive that he has no definite plans to this end.

"He was married to Daisy Chang, who was born on the 'first day
of the twelfth moon, 1889.' Daisy Chang is a Chinese woman, who,
however, has a fair English education, and as fruits of this marriage
four children have been born. The children, it is admitted, are taught
the English language and wear European clothing, tho the wife
wears Chinese clothing. Mr. Lee in all these years has acquired
property interests in China estimated by himself at $10,000 gold,
and none in the United States, and he has shown no desire to realize
on his property, but rather to acquire more, and so exclusively are
his property interests here that it must be considered that his res-
idence is permanent. His wife has not been in the United States and
does not associate with the American people. All the circumstances,
his residence and his family tend to disprove any intention, other
than floating, to return to the United States to reside, or that he is
desirous to return to resume the obligations of citizenship there.
He states, 'The relatives I have in the United States are:

William Graham (uncle).
Mrs. Catherin Graham (aunt).

William Graham (cousin).

John Graham do.

Miss Alice Graham do.

Richard Graham do.

Kitty Graham do.

'When I left home, the mentioned relatives were residing in Ship-
man, Illinois, U. S. A.'

No correspondence with them.

It is understood that under certain conditions presumption can
not extend against one residing abroad. For example, as missionary
the presumption of expatriation will be overcome, or if extending
American business he will be considered to have sound reasons for
remaining abroad, or if his health was such that his residence abroad
was necessary for continuance of life, he will still not be required
to return to America to maintain his citizenship.

704 I EXTRATERRITORIAL CASES.

"He is not a missionary. He is a business man, a dealer in
real estate and acting as a commission agent, but when re-
quested to give some instances where he advanced American inter-
ests he states that he is a dealer in vermilion and yellow lead. Thus
he advances American interests and further states:

'The way I advance American trade is by importing it or by advising
China merchants and acquaintances to deal and use American goods;
sometimes I get samples for them and give them all the information
I can concerning the American manufactured goods and products.
I have imported American fire proof safes, dry goods and fancy
goods. About half of the Hankow ricksha springs are American
manufacture which was imported by me. I also, for my own private
household use, send one or two orders home every year and try to
get my acquaintances to do the same. When the goods arrive, I
generally show them to the merchants and friends and tell them to
compare the articles with the other foreign goods and they will
see the superior quality for themselves. All our houses when build-
ing or repairing, when wood is used, we use American wood, locks,
hinges, and other things are American manufactured.' "

So far as a fire proof safe is concerned and some of the Hankow
ricksha springs there is reason to believe that his statement is cor-
rect, but there is considerable doubt whether he did it purely for the
advancement of American interests or as an owner desiring to obtain
the best articles. The same is true in regard to small articles used
in his buildings.

"His knowledge of American ai-ticles is not sufficient to qualify
him to be of any assistance in the extension of American trade and
his plans are purely for the extension of his own business regard-
less of the source of supply and regardless of the origin of the
goods used.

"In reply to an inquiry as to correspondence with America during
the last three years he says:

'Within the last three years I have had business correspondence
with Montgomery Ward and Company in Chicago, Illinois, and with
Reverend Reed, Minister of the Church of Grace, now called the Holy
Cross House in St. Louis, Missouri.' "

It is known to this Consulate General that correspondence with
Reverend Reed was to obtain copy of his or his brother's birth or
baptismal certificate; with Montgomery Ward and Company was
for household articles illustrated in this fii-m's catalogue on file
in this office.

"In regard to his health, and it is this which, if estopped, pre-
vented the presumption of expatriation : There is no question but
that he is physically unable to return to the United States, as he
is, excepting his mind, a total paralytic unable to move, and has
been for fifteen years, and on this account he has been registered,
but it is respectfully submitted to the Department that one who
is seriously ill invariably realizes that he should return to the
country and locality of his nativity where his closest relatives abide,

IN RE LEE'S WILL, MARCH 3 0, 1918. 705

and in no other way can health be restored is his imagination. He
was a healthful lad of twelve years when he came to China, and
what ailments he had were contracted in this country. He has never
attempted to prove that the American climate had a detrimental
effect on his health. His registration has been provisional only
pending instructions, because it is understood that for ill health to
overcome the presumption of expatriation it must be of such a
character that a return would be a detriment and it is not believed
that an incurable illness which prevents travel shall be the cloak,
to cover citizenship, unless it be accompanied by some well estab-
lished desire to resume residence in America."

The Department of State, to which the question was
finally referred, declined to approve decedent's registration
on the ground of a discretionary right "to refuse its pro-
tection to one who has left the United States for permanent
residence abroad" but it was also stated, thru Director Carr
of the Consular Service, that

"in the absence of any statute prescribing that by prolonged res-
idence abroad a native citizen of the United States shall be pre-
sumed to have expatriated himself, the Department refrains from
expressing an opinion on that point."

The question of decedent's nationality being thus ex-
pressly left open and a determination thereof being neces-
sary before the exercise of jurisdiction to pass upon the
instrument here offered for probate, the situation appears
to call for an investigation and decision of the question
presented by the recitals of the consular document above
quoted, viz., whether continued residence abroad under the
circumstances there detailed ipso facto forfeits the status
of a native citizen. We are, of course, not considering the
question of consular registration which is a ministerial act
under direction of a coordinate branch of the government.

II.

At Common Law there seems to have been no method
by which a subject or citizen could lose that status. As
was declared in an early English case '^

"It is not in the power of any private subject to shake off his
allegiance and transfer it to a foreign prince."

" The Case of Aeneas MacDonald, Foster's Crown Law, 59, Scott's
Cases on International Law, 370 (1747).

14008 O. W. 45 I j

706 I EXTRATERRITORIAL CASES.

Nor was the rule peculiar to English law. The doctrine
"once a citizen always a citizen" was as much a part of
the Common Law of America ^- as of England. And while
the political branch of the Government recognized the right
of expatriation on the part of subjects of other powers and
accepted them as American citizens, the courts adhered to
the doctrine that as to our own citizens "allegiance, with-
out mutual consent, is indissoluble." ^^

This legal situation continued for more than three-
quarters of a century after the foundation of the Federal
Government. At last, in 1868, Congress passed an act
reciting in the preamble that "the right of expatriation is
a natural and inherent right of all people" and providing

"That any declaration, instruction, opinion, order, or decision of
any officers of this government which denies, restricts, impairs, or
questions the right of expatriation, is hereby declared inconsistent
with the fundamental principles of this government." "

This was followed two years later by a convention be-
tween the United States and Great Britain providing for
mutual recognition by each contracting nation of the right
of expatriation on the part of certain of its own and the
other's nationals.^"

But this legislation was far from sufficient for it failed
to prescribe the mode of expatriation. As was observed
by President Grant in a message to Congress some five
years after the passage of the statute last cited :

"The United States, who led the way in the overthrow of the
feudal doctrine of perpetual allegiance, are among the last to indicate
how their own citizens may elect another nationality. * * * j
invite Congress now to mark out and define when and how expatria-
tion can be accomplished." ^'

"The Williams Case, Wharton's State Trials, 652, Scott's Cases
on International Law, 372 (1797) ; Shanks v. Dupont, 3 Pet. (U. S.),
242, 7 L. ed., 666 (1830) ; Kent's Commentaries, 11, 60.

"Wharton's State Trials, 658.

" Act of Congress of July 27, 1868, 15 U. S. Stats, at Large, 223,
Ch. 249, sec. 1.

''Treaties in Force (1904), 336.

" U. S. Foreign Relations (1873), I, vii; Messages and Papers of
the Presidents (Richardson), VII, 239 et seq.

IN RE lee's will, MARCH 3 0, 1918. 707

But Congress was slow to act and meanwhile various
theories and practices arose in the political branch of the
Government to meet exigencies. Thus the Department of
State had occasion to announce not infrequently that the
Government would not extend its protection to American
citizens who should acquire a permanent residence in
a foreign country.^' In most of these cases the subject
was a naturalized citizen and in some of them his conduct
had been quite inconsistent with the retention of American
citizenship. But it was expressly declared by one head
of the Department, a distinguished American lawyer, that

"Continued residence of a native Amei'ican abroad is not expatria-
tion, unless he performs acts inconsistent with his American nation-
ality and consistent only with the formal acquirement of another
nationality, and the same rule holds equally good in the case of a
naturalized citizen of the United States who may reside abroad other-
where than in the country of his original allegiance." "

The arbitrators of certain Spanish and American claims ^®
are quoted as having decided that —

"A citizen of the United States who, being of lawful age, leaves
the United States and establishes himself in a foreign country,
without any definite intention to return to the United States, is to
be considered as having expatriated himself." ^°

But after a somewhat extensive search we have found
no decision by any regularly established court announcing
that doctrine. There are indeed certain Philippine cases ^^
adopting expressions of the State Department similar to
those above noticed, but these are mere dicta since thej^

"Wharton's Int. Law Digest, II, 447 et seq.; U. S. Foreign Rela-
tions (1888), I, 510 et seq.

''Secretary Evarts in U. S. Foreign Relations (1880), 960.

'" 17 U. S. Stats, at Large, 39.

^'' Moore's International Arbitrations, III, 2565.

'' Lorenzo v. Collector of Customs, 15 Phil., 559; Munoz v. Collector
of Customs, 20 Phil., 494; Lim Teco v. Collector of Customs, 24 Phil.,
84; Roa v. Collector of Customs, 23 Phil., 315. The opinion in the
case last cited (per Trent, J.) declares that "there is no mode of
renunciation of citizenship prescribed by law in the United States,"
altho the Act of 1907 prescribing such mode had then been in force
for some five years.

708 I EXTRATERRITORIAL CASES.

did not and could not construe the American naturalization
laws which are not in force in the Philippines.

From the first the trend of judicial and legal thought
in the United States appears to have held consistently to
the view that something more than mere residence abroad
is required in order to effect a forfeiture of citizenship.
Thus a Virginia decision, early in the century, declares:

"A temporary absence will not divest a man of the character of
citizen or subject of the state or nation to which he may belong.
There must be a removal with an intention to lay aside that char-
acter, and he must actually join himself to some other community." ''

Four years later Mr. Justice Washington, presiding in
the Federal Circuit Court, made the following observations
in the case of an American who had then been residing
with his family in England for eleven years :

"It is true, that a man may obtain a foreign domicil, which will
impress upon him a national character for commercial purposes, and
may expose his property, found upon the ocean, to all the conse-
quences of his new character; in like manner, as if he were, in fact,
a subject of the government under which he resides. But he does
not, on this account, lose his original character, or cease to be a
subject or citizen of the country where he was born, and to which his
perpetual allegiance is due." ^

The Department of Justice adhered to this view. At-
torney-General Black announced that:

"Expatriation includes not only emigration out of one's native
country, but naturalization in the country adopted as a future res-
idence.'*

So Attorney-General Williams, writing in 1873, five years
after the passage of the Expatriation Act, said :

"When a citizen of the United States goes abroad without intend-
ing to return, he takes one indispensable step towards expatriation;
but to effect a complete annihilation of all duties and obligations
between the Government of his native country and himself, which

'^ Murray v. M'Carty, 2 Munf., 394 (1811), citing Puff., b. 8, c. 11,
s. 3, p. 869; Hein., b. 2, c. 10, s. 230.

"U. S. v. Gillies, Pet. (CC), 159, 3 Wheeler Grim. Gas., 308, 25
Fed. Gas., 1321.

" Opinions, Attorney-General, IX, 359.

IN RE LEE'S WILL, MARCH 3 0, 1918. 709

expatriation implies, it is necessary that he should become a resident
in some foreign country with an intent to remain there, superadded
to which there tnust be acts in the direction of becoming a citizen or
subject of such foreign country, amounting at least to a, renuncia-
tion of United States citizenship." ^

III.

Thus the law stood until 1907 v;hen Congress for the
first time provided a statutory mode of expatriation.-*
Section 2 of that statute reads in part as follows :

"That any American citizen shall be deemed to have expatriated
himself when he has been naturalized in any foreign state in con-
formity with its laws, or when he has taken an oath of allegiance
to any foreign state."

The balance of the section relates entirely to naturalized
citizens with whom we are not here concerned. This act
is, as we have seen, in derogation of the Common Law
which recognized no right or mode of expatriation. In a
previous decision -■ of this court we had occasion to in-
terpret another of its provisions ^^ and to hold that it
must be construed strictly in aid of a civil right — the
retention of citizenship — and it seemed best to harmonize
with the approved canons of interpretation ~^ to construe
the statutory mode of retention as cumulative only. Here
we are concerned with the opposite process — the forfeiture
of citizenship — and the same canon of strict construction in
aid of a right would seem to require that the modes of
expatriation (forfeiture) prescribed in sec. 1, — viz., foreign
naturalization and oath of allegiance to a foreign state —
be treated as exclusive. The maxim expressio unius est
exclusio alterius is, according to Mr. Broom's classical
work,^' "never more applicable than when applied to the
interpretation of a statute." Thus where an act specifies

='Id., XIV, 297, 298.

=" Act of March 2, 1907, Sess. II, 34 U. S. Stats, at Large, Ch. 2534,
p. 1228.

■' In re McGhee's Estate, ante, p. 418.

"Sec. 4.

" Cyc, XXXVI, 1179.

"Broom's Legal Maxims, 664.*

710 J EXTRATERRITORIAL CASES.

one or more modes of accomplishment other modes are by
implication excluded. '^^

Again, as pointed out in the decision of this court last
cited, the situation of American citizens in China, and other
countries where our Government exercises extraterritorial
jurisdiction, is wholly different from that where such juris-
diction does not obtain. When an American citizen takes
up his abode in England, e. g., he subjects himself to its
laws and administrative regulations and to the jurisdiction
of its courts. To a great extent his own government ceases
to exercise authority over him. But an American citizen
in China, whether residing temporarily or permanently, re-
mains as much under the jurisdiction of his government,
its laws and its institutions as if he were residing at home.
Moreover, it is now well settled in our law that such a
citizen may even acquire an American domicil in China. "-

It is one of the elements of citizenship as prescribed
in the constitutional definition '^ that one is "subject
to the jurisdiction of the United States." ''^ Under the
Act of 1907 that jurisdiction would seem to continue
until the native citizen has become naturalized in China.
And it seems that such a process was not possible during
decedent's lifetime. Under the so-called "Manchu Code"
(Ta Ching Lti Li) capital punishment was imposed upon

"^ England. "Affirmatives in statutes that introduce a new rule
imply a negative of all that is not within the purview. Hob. 298.
And when a statute limits a thing to be done in a particular form,
it includes in itself a negative, viz., that it shall not be done other-
wise. Plowd. 206 b. Affirmative words in a statute do sometimes
imply a negative of what is not affirmed, as strongly as if ex-
pressed. Nott, J., in Cohen v. Hoff, 2 Tredway, 661." (Kent's Com-
mentaries, I, 467, note.)

Iowa. District Township v. City of Dubuque, 7 Iowa, 262.

New Mexico. In re Attorney-General, 2 N. M., 49, 56.

Oregon. Scott v. Ford, 52 Or., 288, 97 Pacific, 99.

Tennessee. Rich v. Rayle, 2 Humph., 404, 407.

Texas. Bryan v. Sundberg, 5 Tex., 418, 423.

'"In re Robert's Will (U. S. Court for China, Estate No. 10) ; In re
Allen's Will, ante, p. 92; Mather v. Cunningham, ante, p. 136.

"'Federal Constitution, Amendment X'v, sec. 1.

'*/n re Look Tin Sing, 21 Fed., 905, where Field, J., construes
this phrase.

IN RE lee's will, MARCH 30, 1918. 711

"all persons renouncing their country and allegiance, or
devising the means thereof." '■"■' And while the Treaty of
1868 recognized on the part of both contracting parties
"the inherent and inalienable right of man to change his
allegiance," •■'' and expressly authorized residence in their
respective territories, it also provided ^^ that "nothing
herein contained shall be held to confer naturalizations
upon citizens of the United States in China, nor upon the
subjects of China in the United States."

From this it would appear that an American citizen is
precluded from changing his allegiance by mere residence
in China.

Moreover, it appears that until 1909 '* no provision was
promulgated by which a foreigner might acquire Chinese
nationality; that the machinery for applying that law has
but lately been provided if at all; and that no case of
naturalization thereunder has yet occurred. There is no
claim that the decedent ever acquired, or sought to acquire,
such naturalization. On the contrary it appears that his
claim of American citizenship was constant and steadfast
and the sole ground for impugning it seems to be that he
married and settled in China and remained here during
most of his life without a definite intention of returning
to his native country. The impossibility of his becoming
a Chinese national has merely this bearing: that if his
American citizenship was forfeited he was, and had to
remain, "a man without a country," his estate cannot be ad-
ministered in any court, and his family is left without
legal status, recognition, protection or even means of sup-
port. A conclusion which would entail such a chain of
catastrophes ought never to be announced unless the law

"' Chinese Code, Staunton's translation, sec. CCLV.

*' Treaties between China and Foreign States (Shanghai 1908) I,
527, Art. V.

='Id., Art. VI.

®' A summary of the Chinese "Nationality Act" of that year ap-
pears in the Bulletin of the Comparative Law Bureau, III, 98-100
(1910) by Dr. Chung Wang Hui of the Chinese Law Codification
Commission who now writes that the act has been twice amended.
See Law of 18th day of the 11th moon, of the first year of the
Republic.

712 I EXTRATERRITORIAL CASES.

imperatively requires it. We do not find that the American
law does require it. Our researches have led to the op-
posite conclusion.

We accordingly find from the evidence —

1. That the deceased, Robert Edmund Lee, was born,
lived and died an American citizen;

2. That he left property, of the value of more than Five
Hundred Dollars, United States currency, within the juris-
diction of this court where he died on July 3, 1917;

3. That the instrument offered in evidence as Exhibit
"A" is the last will and testament of the said decedent;
that it was voluntarily and validly executed by him at a
time when he was of sound mind and disposing memory;
and that the same was intended to be his last will and
testament ;

4. That said instrument names as executrix Daisy Lee,
the wife of said decedent, and that no reason appears why
Letters Testamentary should not issue to her.

It is accordingly considered and decreed that said in-
strument be and it hereby is admitted to probate as the
last will and testament of said decedent and that since
the said instrument authorizes her to serve without bond,
such Letters issue to the said Daisy Lee as Executrix upon
her taking and subscribing the oath according to law.''*'

'° Writing to the author of the foregoing opinion, Dr. John Bassett
Moore, formerly Counselor of the State Department and the fore-
most teacher of International Law in America, said:

"Not only do I consider your conclusions to be correct, but I wel-
come them as an authoritative contribution towards the establish-
ment of a distinction which is too little understood.

In my History and Digest of International Arbitrations I devoted
an entire chapter (Vol. Ill, Ch. 56) to the Renunciation or Forfeit-
ure of the Right to National Protection. I used this phraseology
for the purpose of opening the way to correction of the supposition,
which has so extensively prevailed in judicial and diplomatic utter-
ances, that the refusal to extend protection to a citizen could be
justified only on the ground that he was "expatriated," in the sense
of having lost his citizenship. I make the same distinction in my
Digest of International Law, Vol. Ill, pp. 757-790. It seemed to
me that one of the few improvements made by the Act of 1907 in
pre-existing law was the fact that it recognized, perhaps uninten-
tionally, that distinction.

So far as concerns the courts, the confusion in which the subject
has been so generally enshrouded is largely due to the unprecise and
more or less promiscuous use of the terms citizenship, domicil and

IN RE sweet's will, APR. 3, 1918. 713

IN THE UNITED STATES COURT FOR CHINA.
In re Winfield S. Sweet's Will.

[Cause No. 646; filed April 3, 1918.]

SYLLABUS.

(By the Court.)

I.WILLS: Form. No particular form of words is necessary to con-
stitute a will provided an intention is disclosed to dispose of
property effective after death.

2. Id. : Informal instrument offered for probate found sufficient and

admitted.

3. Id. : Dangers of informality in such instruments emphasized.

4. Id. : Interpretation. The testator's intent is the controlling con-

sideration in construing wills.

expatriation. Citizenship has been used in the sense of domicil,
domicil has been used in the sense of citizenship, and expatriation
has been used indiscriminately to denote changes of citizenship and
changes of domicil.

So far as concerns the Executive Department, there has been a
special confusion chiefly due to a misinterpretation of the statutory
requirement, based on the Expatriation Act of 1868, that no dis-
tinction shall be made in the treatment of native citizens and of
naturalized citizens abroad. On the assumption that this meant that
no account was to be taken of the circumstance that one was a native
and the other a naturalized citizen, our Secretaries of State have in
fact often subjected the native citizens to a discrimination for which
there was not the slightest legal justification. Our naturalization
treaties, with perhaps a single exception, have incorporated the prin-
ciple that a naturalized citizen permanently returning to the country
of his origin is to be considered as having renounced his naturaliza-
tion. This rule has a justification in law as well as in common
sense. But to say that a native citizen who goes to reside even
permanently in a country that never had a claim to his allegiance,
should be treated as if it were the country of his original allegiance,
is justified neither in law nor in common sense. Whenever I have
had an opportunity I have endeavored to impress these considerations
upon those in authority. Your compact and well-reasoned judicial
opinion will, I believe, be of great value in clarifying the thought
of those who have to deal with a subject which has been so much
misapprehended."

Dr. Tyau, author of several works on International Law, reviewing
the principal case in the Peking Leader of April 14, 1918, observes,
inter alia:

"In itself the decision contains nothing new, it being the almost
universal rule of law that a foreigner entering a country does not
lose his nationality until and unless he takes out proper naturaliza-
tion papers or does some acts which clearly show his intention to
divest himself of that nationality no matter how long he resides
therein. Yet the case is interesting because it affords a parallel to
that of the great numbers of Chinese who reside in foreign countries
but do not become naturalized despite their length of residence."

714 I EXTRATERRITORIAL CASES.

LOBINGIER, J.:

This cause comes on for hearing upon the petition of
Mrs. Josie M. Sweet for the admission to probate of an
instrument offered as the Last Will and Testament of her
late husband, Winfield S. Sweet. The only legal question
which arises in the proceeding pertains to the sufficiency
as to form of the said instrument which reads as follows:

"I herewith give to Mrs. Sweet all property personal and deeds
and money in case my life passes away. I appoint my wife Josie
M. Sweet to be my executor.

"(Sgd.) W. S. Sweet.
"Witnesses :

Elizabeth E. Coltert.
E. L. Mattox.
Emma K. Mattox.
"Dated Mohkan San, June 11, 1917."

The petitioner testifies that she was present at the time
of its execution and the instrument is in the handwriting
of the deceased. It contains, as will be noted, the names
of the requisite number of witnesses who, the petitioner
testifies, were also present at the execution. In phrase-
ology the instrument is extremely informal but not more
so than numerous others which have been admitted to
probate by the courts. The following are some of many
such examples where informal documents were upheld as
valid wills:

"It is my wish and desire that my good friend and relative Dr.
Joseph B. Outlaw have all my property of every description. Dec.
20, 1848. David Outlaw.'"

"If I should die or get killed in Texas the place must belong to
you."'

"And Ann, after my death you are to have forty thousand dollars;
this you are to have, will or no will. Take care of this until my
death.""

' Outlaw v. Hurdle, 46 N. C. 150.

' Alston v. Davis, 118 N. C. 202, 24 S. E. 15 (from letter written
by deceased to his sister) .

" Byers v. Hoppe, 61 Md. 207, 48 Am. Rep. 89. "In our opinion,"
says the court, "these concluding sentences * * * evince just as
effectually, in legal contemplation, that the writer wrote them anhno
testandi, as if he had said in terms: 'I hereby will and bequeath to
Eliza Ann Byers forty thousand dollars, to be paid to her at my
death out of my personal estate.' "

IN RE SWEET'S WILL, APR. 3, 1918. 715

"Mayfield Grange, Tuesday, June 23, 1874. Dear Old Nance: I
wish to give you my watch, two shawls and also five thousand dollars.
Your old friend, E. A. Gordon." *

"1 have requested my executors to give a clear deed for the prop-
erty, after my death, to Maggie, his wife, and Charley." ^

"I want to make you and Lulu a deed to that house and lot and
I don't want you and her to ever have any trouble over it." "

"If I am not living at the time this note is paid, I order the
contents to be paid to Arad Hunt 2nd. Witness: Arad Hunt.'"

"New Orleans, September 15, 1859. Mrs. Sophia Loper is my
heiress. G. Ehrenberg." "New Orleans, March 16, 1861. The leg-
atee's name is correctly spelt Loeper. G. Ehrenberg." ■

"A few little things I would love to have done: Always
keep Vicie and Pet, if possible. Mama to have everything she
wants, v^rith a few exceptions of remembrances. Please let sister
have my house rent as long as she may live; then may
my little namesake have it. ;= * * Take good care of Vicie 'some-
body' as long as she lives. Saturday. Harriet." '

"November 7th, 1890. Nuncupative by word of mouth my will
was made (sic) on the above date, everything left to my dear wife,
Mary W. Fouche, all my real and personal estate and every I own
at the time of my death. William W. Fouche." '"

"What I want is that you should change my will so that she (his
wife) will be entitled to all that belongs to her as my wife." "

In this instance the testamentary intent seems clear.
The word "give," which is absent from most of the in-
struments above referred to, is used and it is evident that

* Clarke v. Ransom, 50 Cal., 595.

' Webster v. Lowe, 107 Ky., 293, 53 S. W., 1030.

" Milam v. Stanley (Ky.), Ill S. W., 296, 17 L. R. A. (N. S.), 1126.
(From letter written by deceased to his daughters.)

'Hunt V. Hunt, 4 N. H., 434, 17 Am. Dec, 438. (Indorsement on
promissory note.) See also Jackson v. Jackson, 6 Dana (Ky.), 257,
where a promissory note payable after the maker's death was held
to be a valid will.

* Succession of Ehrenberg, 21 La. Ann., 280, 99 Am. Dec, 729.
(The instrument was indorsed as follows: "Ehrenberg's will, to be
opened by S. B. Patrick, who will see it executed. A copy of this
will is left in the hands of the heiress.")

'■' Appeal of Knox, 131 Pa., 220, 18 Atl., 1021, 6 L. R. A., 353, 17
Am. St. Rep., 798, the court noting that "It does not on its face
purport to be a will, and in form is not a command, but a request,
addressed to no special person by name."

"/n re Fouche's Estate, 147 Pa., 395, 23 Atl., 547.

" Barney v. Hays, 11 Mont., 99, 571, 27 Pac, 384, 29 Pac, 282, 28
Am. St. Rep., 495. (Letter written by deceased to his lawyer.)

716 I EXTRATERRITORIAL CASES.

the gift is not to take effect except "in case my life passes
away." To quote the language used in a leading case^
therefore, "it has the essential element of being a disposi-
tion of property to take effect after death." '- An executor
is also named and this designation is not of course in-
validated because the decedent's wife should have been
referred to as the "executrix." The testator's intent is
the controlling consideration and mere informality will not
be allowed to defeat it."

But while we find no difficulty, in the light of the
authorities, in upholding this instrument we are far from
commending it as a model and we feel that the occasion
justifies, here as in the case last cited, calling attention
to the necessity of greater care and a fuller realization
on the part of our nationals of the importance of draft-
ing such instruments. The folly of postponing such a
duty until one's last hours has been repeatedly demon-
strated in the experience of this as well as of other courts.
The deceased was a missionary and we can only wish that
more of the organizations of those worthy laborers for
the advancement of China would follow the example of
the Treasurer of the American Church Mission in preparing
and sending to all those connected with said mission in
China an approved form of will and requesting its early
execution.

We find from the evidence:

1. That Winfield S. Sweet, late a citizen of the United
States, domiciled at Hangchow, China, died at Rochester,
Minnesota, on September 28, 1917;

2. That he left property within the jurisdiction of the
Court of the value of more than Five Hundred Dollars,
United States currency;

3. That the instrument offered in evidence as Exhibit
"A" was voluntarily and validly executed by him at a
time when he was of sound mind and disposing memory;
that the same was intended by him to be his last will and
testament and that tho the same is informal the said in-

'' Appeal of Knox, 131 Pa., 220, 18 Atl., 1021, 6 L. R. A., 353, 17
Am. St. Rep., 798, 106 Pac, 359.

"7rj re Bonnell's Will, ante, p. 647.

IN RE CORRIGAN'S ESTATE, APR. 18, 1918. 717

tention should be carried out and that the said instrument
is therefore entitled to probate as such last will and tes-
tament ;

4. That by said instrument the deceased intended to
name his wife, Josie M. Sweet, as executrix thereof and
that no reason appears why Letters Testamentary should
not issue to her.

It is accordingly considered that said instrument be and
it hereby is admitted to probate as the Last Will and Tes-
tament of said decedent, and that Letters Testamentary
issue to the said Josie M. Sweet upon her taking and
subscribing the oath according to law and executing a
proper bond.

IN THE UNITED STATES COURT FOR CHINA.
In re Patrick J. Corrigan's Estate.

[Cause No. 789; filed April 18, 1918.]

SYLLABUS.
(By the Court.)

1. DECEDENTS' ESTATES: AMERICAN SEAMEN DYING ABROAD. Sees. 46

and 50 of the Act of Congress of June 7, 1872 (Rev. Stats., sees.
4541, 4545), relative to the estates of American seamen dying
"out of the United States," have been much modified by sub-
sequent legislation.

2. Id. : Legislation : The Effect of such legislation has been to

confer upon this Court the authority, relative to estates of
seamen dying in China, previously exercised by federal courts
in the United States.
Z. Id. : Procedure. In other respects the procedure prescribed by the
original act remains in force.

LOBINGIER, J.:

This cause comes on for hearing upon the final report
of the Consular Court for the District of Shanghai, and
its application for leave to distribute the estate of the
deceased who died here about February 20 last. It ap-
pears from an affidavit of one of the local agents of the
steamship "Rosewood" filed in this Court, that the dece-
dent, at the time of his death, was employed on said ship
as a seaman. A certificate of naturalization also appears

718 I EXTRATERRITORIAL CASES.

in the record showing that the deceased had been admitted
to citizenship by the Superior Court of San Francisco on
January 26, 1914. The report above mentioned recites:

"That it has been impossible to locate the address, or ascertain
the name, of any living relative of deceased; and, therefore, under
the law, the assets of said estate should be forwarded to the U. S.
District Judge for the Northern District of California."

This recital, it appears, is based upon certain sections
of the act of Congress of June 7, 1872,^ since incorporated
in the Revised Statutes. Section 4541 of the latter (sec.
46 of the original act) reads as follows:

"Whenever any such seaman or apprentice dies at any place out of
the United States, leaving any money or effects not on board of his
vessel, the consular officer of the United States at or nearest the
place shall claim and take charge of such money and effects, and
shall, if he thinks fit, sell all or any of such effects, or any effects
of any deceased seaman or apprentice delivered to him under the
provisions of this Title, and shall quarterly remit to the district
judge for the district embracing the port from which such vessel
sailed, or the port where the voyage terminates, all moneys belonging
to or arising from the sale of the effects or paid as the wages of
any deceased seamen or apprentices which have come to his hands;
and shall render such accounts thereof as the district judge requires."

Section 4544 of the Revised Statutes (sec. 49 of the
original act) provides:

"If the money and effects of any seaman or apprentice paid, re-
mitted, or delivered to the circuit court, including the moneys received
for any part of his effects which have been sold, either before delivery
to the circuit court, or by its directions, do not exceed in value the
sum of three hundred dollars, then, subject to the provisions here-
inafter contained, and to all such deductions for expenses incurred in
respect to the seaman or apprentice, or of his money and effects,
as the said court thinks fit to allow, the court may pay and deliver
the said money and effects to any claimants who can prove them-
selves either to be his widow or children, or to be entitled to the
effects of the deceased under his will, or under any statute, or at
common law, or to be entitled to procure probate, or take out letters
of administration or confirmation, altho no probate or letters of
administration or confirmation have been taken out, and shall be
thereby discharged from all further liability in respect of the money
and effects so paid and delivered; or may, if he thinks fit so to do,
require probate, or letters of administration or confirmation, to be

' 17 U. S. Stats, at Large, Sess. II, Ch. 322, sees. 46-50, pp. 272-3.

IN RE CORRIGAN'S ESTATE, APR. 18, 1918. 719

taken out, and thereupon pay and deliver the said money and effects
to the legal personal representatives of the deceased; and if such
money and effects exceed in value the sum of three hundred dollars,
then, subject to deduction for expenses, the court shall pay and
deliver the same to the legal personal representatives of the
deceased." *

Section 4545 of the Revised Statutes (sec. 50 of the
original act) further provided:

"When no claim to the wages or effects of a deceased seaman or
apprentice, 'received by a circuit court, is substantiated within six
years after the receipt thereof by the court, it shall be in the absolute
discretion of the court, if any subsequent claim is made, either to
allow or refuse the same. Such courts shall, from time to time,
pay any moneys arising from the unclaimed wages and effects of
deceased seamen, which, in their opinion, it is not necessary to retain
for the purpose of satisfying claims, into the Treasury of the United
States, and such moneys shall form a fund for, and be appropriated
to, the relief of sick and disabled and destitute seamen belonging
to the United States merchant marine service."

The first and third of the sections above quoted have,
however, been considerably modified by subsequent legis-
lation. Thus in 1897 section 4541 was amended by sub-
stituting "circuit court" for "district judge" wherever the
latter phrase occurs." By the same act, section 4545 was
amended so as to read as follows : *

"A circuit court, in its discretion, may at any time direct the sale
of the whole or any part of the effects of a deceased seaman or
apprentice, which it has received or may hereafter receive, and shall
hold the proceeds of such sale as the wages of deceased seamen are
held. When no claim to the wages or effects or proceeds of the sale
of the effects," etc.,

the balance of the section being unchanged.

At the time, therefore, of the passage of the Organic
Act of 1906 creating this Court, and defining the present
jurisdiction of the consular courts, all authority of the dis-
trict judges as such in said matters had ceased. The grant-
ing of the present application would be further complicated

^ See this section construed, In re Holmberg's Estate, 193 Fed., 260.
'Act of Congress of March 3, 1897, Sess. II, 29 U. S. Stats, at
Large, Ch. 389, sec. 4, p. 689.
'Id., sec. 7.

720 I EXTRATERRITORIAL CASES.

by the fact that "for the Northern District of California"
two judges are now provided.^

But the Organic Act above mentioned effected numerous
changes in the jurisdiction and procedure of American
courts in China. Previously the appellate tribunal there-
from was the Circuit Court for the District of California ®
for which this Court was thereupon substituted.^ More-
over the whole system of administering the estates of de-
cedents was changed by this legislation.^ It was provided
that:

"The said United States Court for China shall have and exercise
supervisory control over the discharge by consuls and vice-consuls of
the duties prescribed by the laws of the United States relating to the
estates of decedents in China * * * The said judge shall have
pow^er to require at any time reports from consuls or vice-consuls
in respect of all their acts and doings relating to the estate of any
such deceased person." °

This language, it will be seen, is broad and sweeping.
This Court is given "control" over the discharge of duties
previously prescribed for consuls "relating to the estate
of decedents in China" which would include the estates
of seamen and the consular duties required by the act of
1872. And in all such matters the Judge of this Court
is empowered to require reports at any time. The con-
ferring of such extensive powers upon this Court would
seem to exclude their exercise by any other court. Con-
gress could hardly have intended to give this Court "super-
visory control" with power to require reports in all such
cases and at the same time to continue the authority pre-
viously enjoyed by circuit courts in the United States with
reference to the estates of seamen dying in China and

"Act of Congress of March 3, 1911, Sess. Ill, 36 U. S. Stats, at
Large, Ch. 231 (Judicial Code), sec. 1.

'U. S. Revised Statutes, sees. 4093-4096; see The Spark v. Lee
Choi Chum, 1 Sawy (U. S,), 713, 22 Fed. Cas. No. 13206 (1872);
Tazaymcn v. Twombley, 5 Sawy (U. S.), 79, 23 Fed. Cas. No. 13810
(1878).

'Act of Congress of June 30, 1906, 34 U. S. Stats, at Large, Ch.
3934, sec. 2.

* In re Consul General's Report, ante, p. 291, per Thayer, J.

'34 U. S. Stats, at Large, Ch. 3934, sec. 2.

IN RE CORRIGAN'S ESTATE, APR. 18, 1918. 721

to require the furnishing of reports to such courts. The
whole purpose of the legislation of 1906 was to centralize
authority in a tribunal established on the ground and the
language used is sufficiently comprehensive to justify the
conclusion that all authority inconsistent therewith, and
previously exercised by other tribunals, was taken away.

The Judicial Code of 1911 effected a still further change
in the legislation here reviewed by abolishing the circuit
courts ^'^ and transferring their authority and jurisdiction
to the district courts. ^^ This in a way restored the orig-
inal phraseology of the Act of June 7, 1872, for the phrases
"district judge" as there used and "district court" as em-
ployed in the Judicial Code have been held substantially
equivalent. ^^ But if we are correct in our view that the
legislation of 1906 had already transferred such authority
to this Court, as regards estates in China, these provisions
of the Judicial Code had no effect here.

And were it otherwise the same result would seem to
follow. For the original Act of 1872 conferred the author-
ity in question upon the "judge of the district court of
the port from which such ship sailed, or the port where
the voyage terminates." ^^ It appears from the affidavit
above mentioned that the voyage of the ship in question
terminated at Shanghai and this Court would seem to meet
the designation of "the district court" in such cases. For
even territorial courts have been so designated ^* and if
said voyage had terminated in Hawaii or Alaska it would
hardly be questioned that the United States Courts in
those localities would have exercised the jurisdiction here
sought. This Court, while exercising much of the juris-
diction commonly possessed by a state court, nevertheless
derives its entire authority from the Federal Government.
It is exclusively a court of the United States and of the
three grades of such courts it naturally belongs in the
same class with the district courts.

" Sec. 289 (see note 5, supra).

"Id., sec. 291.

''Tsoi Yii V. U. S., 129 Fed., 585; U. S. v. Gee Lee, 50 Fed., 271.

" 17 U. S. Stats, at Large, Sess. II, Ch. 322, sec. 46.

" U. S. V. Haskins, 3 Sawy. 262, 26 Fed. Cas. 213.

14008 O. W. 46

722 I EXTRATERRITORIAL CASES.

We hold, therefore, that the effect of the legislation
above reviewed is to confer upon this Court the author-
ity, as regards the settlement of estates of American sea-
men dying in China, previously exercised by courts in the
United States. In other respects procedure prescribed by
the Act of June 7, 1872, remains in force, and had it
appeared from any of the reports previously furnished
by the consular court in this case that it involved the
estate of such a seaman we should have directed the en-
tire assets of the said estate to be forwarded ^^ to this
Court at once. As it is we can only treat the action of
the consular court in effecting the sale of the assets as
having been taken in behalf, and under the direction, of
this Court and henceforth the procedure above mentioned
will be followed.

It is accordingly ordered that the funds now in the
hands of the consular court be forwarded to this Court
for disposition '^ pursuant to the provisions of the Act of
June 7, 1872, as amended.

IN THE UNITED STATES COURT FOR CHINA.
hi re Henry August Jaeger's Estate.

[Cause No. 613; filed April 26, 1918.]

SYLLABUS.

(By the Court.)

1. ADMINISTRATION PROCEEDINGS: Where the consular court has,
in good faith, assumed jurisdiction to administer an estate,
and exercised it up to a point when the cause was found to

"In re Estate (No. 89) of Robert W. Mustard, deceased, which
had been administered and closed by order of the Consular Court
for the district of Shanghai, Thayer, J., on April 23, 1909, rescinded
said order and caused letters testamentary to "reissue" on the ground
"that additional and heretofore undiscovered property of said estate
has been found, to wit: a certain portion of a judgment in a court
of the State of New York, which portion is hereafter to be deter-
mined, on behalf of Robert West Mustard and Charles C. Bennett,
co-partners, doing business as Mustard and Company at Shanghai,
China, against one, Howard Martin, for the sum of Gold $2,218.05."

" They were afterward distributed, thru the Consul General at
Melbourne, to a proved heir in Australia.

IN RE JAEGER'S ESTATE, APR. 26, 1918. 723

be beyond its competency, its proceedings may be adopted and
confirmed by this Court.
2. Id. : Distribution of personalty directed in accordance with the
Act of Congress of March 3, 1901.

M. L. Heen, Esq., p7'o se.

LOBINGIER, J.:

This cause comes on for hearing upon the petition of
M. L. Heen, Esquire, for the issuance to him of Letters
of Administration in the above entitled estate. The first
four paragraphs of the petition are as follows :

"1, That Henry August Jaeger, deceased, died intestate on the
30th day of December, 1916, in the International Settlement at
Shanghai, China, leaving surviving him a widow named Nellie
Everiet Jaeger, and a minor daughter named Marion Jaeger.

"2. That on the 5th day of January, 1917, a petition, a certified
copy of which is hereunto attached marked exhibit 'A,' was entered
and filed in the United States (American) Consular Court at Shang-
hai, China, by the said Nellie Everiet Jaeger, praying that the said
estate be administered upon and that your petitioner, M. L. Heen,
Esquire, be appointed administrator to serve without bond.

"3. The petition hereinbefore mentioned was duly heard in open
Court, evidence being produced in support of the allegation therein
contained, and letters of administration, a certified copy of which is
hereunto attached marked exhibit 'B,' were duly issued and granted
to the said M. L. Heen, Esquire, your petitioner, who thereupon
qualified and entered upon the administration of the aforesaid estate
without giving bond.

"4. That some time after the appointment of your petitioner as
administrator of the aforesaid estate assets came into his hands
belonging to the said estate which disclosed the fact that the estate
was worth more than $500 United States Currency and that there-
upon the United States (American) Consular Court at Shanghai,
China, refused to act, assigning as its reason therefor that the
matter was without its jurisdiction."

From the record in the consular court, which has been
transferred here, it appears that decedent's widow asked
for the appointment of petitioner as administrator and
that letters were issued to him accordingly, under which
he has since been acting. It further appears that tes-
timony was taken in support of the petition, that a notice
to creditors was duly published according to law and that

724 ^ EXTRATERRITORIAL CASES.

more than the required six months have elapsed since the
date of such publication.

We do not think that the estate should be subjected to
the expense and delay of a second publication. The con-
sular court is under the "supervisory control" ^ of this
Court and the former's proceedings in administration cases
are subject to this Court's direction, must be reported
and may be reviewed at the latter's instance.- To a certain
extent, therefore, the proceedings of the consular court
in such a case are those of this Court and it would seem
quite proper for the latter to adopt so much of such
proceedings as appear to be regular and to have served
the purpose intended. Analogy may be found in the
removal of causes from a state to a federal court, the latter
usually accepting and following the rulings already made
in the former.^ The maximum lex neminem cogit ad
vana seu iymtilia * would seem applicable and it would
appear both vain and useless to repeat steps which have
been regularly taken below. For where the consular
court has in good faith assumed jurisdiction and exercised
it up to a point where it appears that the case really
belongs to this Court nothing would be gained by travers-
ing here the same ground again and no sound rule of
practice would seem to be infringed by confirming and
adopting what has already been done.

The testimony in the consular court will, therefore, be
treated as having been taken, and the publication of no-
tice as having been made, under the authority of this
Court and the appointment of the petitioner as adminis-
trator is hereby confirmed, tho letters of administration
must issue out of this Court.

The petitioner files a separate application for leave to
pay claims, including administrator's fees, and to distrib-
ute the balance. It appearing that the deceased left sur-
viving a widow and only one child, for whom it seems a

' Act of Congress of June 30, 1906, 34 U. S. Stats, at Large, Ch.
3934, sec. 2.
= Id.

'■' Cyc, XXXIV, 1318, note 75 and cases cited.
* Broom's Legal Maxims (8th Am. ed.), 252, and cases cited.

YING NIANG TZE V. ANDREWS ET AL., APR. 2 7, 1918. 725

guardian has been appointed by the Territorial Circuit
Court of Hawaii, distribution is governed by the following
provision :

"If there be a widow and a child or children, or a descendant or
descendants from a child, the widow shall have one-third only." °

It is therefore considered and adjudged —

1. That all claims against the said estate not presented within
six months from the date of said publication be and the same are
hereby barred;

2. That Letters of Administration issue to the petitioner upon his
taking and subscribing the oath and presenting a proper bond in
the sum of Shanghai Taels Three Thousand (Tls. 3,000.00) ;

3. That upon receipt of said letters the Administrator is author-
ized to pay all proper claims against the said estate, including Court
fees and the fees earned by him as administrator;

4. That he distribute the balance of the assets, two-thirds to the
guardian of the decedent's minor child and the remaining one-third
to the decedent's widow;

5. That in case any disagreement should arise between the latter
and the said guardian as to the division of the personal property,
the same be sold and the proceeds distributed in the same proportion.

IN THE UNITED STATES COURT FOR CHINA.

YiNG NiANG TzE, Plaintiff, V. Andrews & George,
a Corporation, Defendant.

[Civil action No. 201; filed April 27, 1918.]

SYLLABUS.

(By the Court.)

1. CONTRACTS: EMPLOYMENT. An instrument in which plaintiff is

"referred to as the Chinese Manager and Director * * be-
comes a Director * * and is paid a salary of. Tls. 300 per
month" and "for such salary * * agrees to devote the best
part of his time and ability to the furthering of the interests
of the Company" evidences a contract of employment.

2. Id. : Interpretation. "Such salary" found, in the light of the

surrounding circumstances, to have been promised plaintiff for
his special services last mentioned and not as director.

' Act of Congress of March 3, 1901, 31 U. S. Stats, at Large, Sess.
II, Ch. 854, sec. 375; In re Noyes' Estate, ante, p. 538; In re Bassity's
Estate, ante, p. 595.

726 I EXTRATERRITORIAL CASES.

3. Id. : Id. : The phrase "best part of his time and ability" construed

to mean the major portion of each, the employment of which
is found not to have been established.

4. Id. : Validity. That portion of the contract by which it is agreed

that plaintiff "becomes a Director" is void as against public
policy.

5. Id.: Termination. The settled American rule is that a contract

of emplo3mient whose duration is not expressly fixed is termin-
able at the will of either party.

Messrs. Fleming & Davies, by Mr. Fleming, for plaintiff.
Messrs. Jernigan, Fessenden & Rose, by Mr. Rose, for
defendant.

LOBINGIER, J.:

The plaintiff sues for rescission, and at the same time
damages for the breach, of a contract evidenced by the
following instrument executed by himself and defendant,
a corporation appearing to have been organized under the
laws of Maine:

"An agreement made this thirteenth day of September, One thou-
sand nine hundred and sixteen, between Andrews, von Fischerz &
George of Shanghai, China, hereinafter referred to as the Company
of the one part, and Mr. Ying Niang Tze of Shanghai, China, here-
inafter referred to as the Chinese Manager and Director, of the other
part, as follows :

Mr. Ying Niang Tze has agreed to purchase from the Company
500 Shares of Tls. 50 each, amounting in all to Tls. 25,000.

"In consideration of this purchase the Company agrees that Mr.
Ying Niang Tze becomes a Director of the firm and is paid a salary
of Tls. 300 per month; he also participates in the profits of the Com-
pany in the same way as any of the other Directors or Shareholders
and furthermore he is entitled to Director's fees.

"For such salary and the privilege of becoming a Director of the
Company, Mr. Ying Niang Tze agrees to devote the best part of
his time and -ability to the furthering of the interests of the Com-
pany, and he also agrees to engage one or two good shroffs to assist
him.

"It is further understood that Mr. Alfred Black, the General Man-
ager of the Company, arranges with Mr. von Fischerz for the disposal
of his Shares and sole interest in the business to Mr. Ying Niang
Tze, and as soon as all the arrangements are completed, Mr. Ying
Niang Tze agrees to take up immediately Tls. 25,000 worth of Shares.

"Before any arrangements are entered into as to the purchase of
the Company's Shares by Mr. Ying Niang Tze, it is agreed that he

YING NIANG TZE V. ANDREWS ET AL., APR. 2 7, 1918. 727

has the oppportunity to examine the books of the Company so as
to satisfy himself and his friends that the Company is a sound and
paying one, but before this privilege is allowed him or any one whom
he likes to appoint on his behalf he agrees to deposit Tls. 2,000 in
the Hongkong & Shanghai Banking Corporation in the name of Mr.
Alfred Black and himself.

"It is further agreed that if Mr. Ying Niang Tze wishes to with-
draw from what he has now promised to do in the way of purchasing
the Shares and becoming a Director of the Company, he forfeits the
Tls. 2,000 but if on the other hand Mr. Alfred Black cannot arrange
for the purchase of the Shares, it is agreed that the Tls. 2,000 is re-
turned to Mr. Ying Niang Tze or if on examination of the books and
Mr. Ying Niang Tze finds that the profits of the Company are not
what Mr. Alfred Black has told him, or that the business is not a
paying one, then he is entitled to the return of the Tls. 2,000.

"Signed by the above named An- \

drews, von Fischerz & George, J "Andrews, von Fischerz &
in the presence of (Sgd.) R. S. / George.— (Sgd.) Alfred

DouGAL. ^ [^ Black,

"Signed by the above named Mr. / General Manager.

Ying Niang Tze in the presence V "(Sgd.) Ying Niang Tze
of (Sgd. in Chinese characters) I (in Chinese characters.)

Chang Lan Ping." j

After reciting the execution of said instrument the plain-
tiff proceeds to allege that he —

"duly purchased said shares of stock as provided for in said agree-
ment and was then elected a director of said defendant corporation
as provided in said agreement; that said plaintiff thereafter entered
into the service of the said defendant corporation and has ever since
devoted the best part of his time and ability to furthering the interests
of said defendant as in said agreement provided; that plaintiff has
also ever since his said election as director engaged and supplied
entirely at his own expense two good shroffs to assist him as in said
agreement provided.

"That the said defendant has committed a breach of the terms and
considerations of said agreement and has not paid plaintiff his said
salary for the months of March, April, May and June, 1917, altho
the same is now due and payable and has been demanded; and that
said defendant has not paid plaintiff's director's fees which plaintiff
alleges on information and belief amount to the sum of Tls. 300 or
thereabouts, altho plaintiff has repeatedly demanded the same."

Judgment for Tls. 26,200 and costs is prayed.

Defendant's answer denies —

"that plaintiff has devoted the best part of his time and ability to
furthering the interests of defendant and also denies that plaintiflF

728 I EXTRATERRITORIAL CASES.

has enpraged two good shroffs to assist him as alleged in said par-
agraph four" or "that it has comrrvitted a breach of the terms and
condtions of said agreement as in said paragraph five alleged or any
breach whatever and defendant further alleges that it has been at all
times ready and willing to perform and has offered to perform its
part of said contract but that plaintiff has wholly refused and failed
to devote the best part of his time and attention to furthering the
interests of said defendant and has wholly refused and failed to
engage good and competent shroffs to assist plaintiff. In further
answer to said paragraph five of said petition defendant denies that
there are any director's fees due, owing or payable to plaintiff."

II.

Plaintiff's averment that he has "devoted the best part
of his time and ability to furthering the interests of said
defendant as in said agreement provided" is an essential
one for without it his pleading would be subject to demurrer
for failure to state a cause of action.^ And in order to
obtain either rescission of the contract or damages for its
breach plaintiff must prove that averment.

The phrase "best part of his time and ability" may not
be a technical one (for the contract, it appears, was not
drawn by a lawyer) but we do not think it ambiguous.
In a comparatively recent case - a contract required the
plaintiff "to devote his best energies to the sale of the
defendant's product" and while this was held not to re-
quire his "exclusive attention" the court considered it —

"apparent that 'best energies' meant such effort as in the exercise
of sound judgment would be likely to produce the most profitable
results to the defendant in view of the nature of the business and
the extent of territory over which it was to be conducted."

So here we are of the opinion that the clause used in
the contract did not require the plaintiff to devote all his
time and ability to furthering the interests of the defend-
ant company but we are disposed to agree with defendant's
counsel that the phrase "best part" includes at least the
major portion of each.

We do not think, however, that the plaintiff shows that
he devoted any such portion of either his time or his abil-

'Encyc. of PI. & Pr., IV, 628.

' Randall v. Peerless Motor Car Co., 212 Mass., 352, 99 N. E., 221.
Cf. McLane v. Maurer, 28 Tex. Civ. App., 75, 66 S. W., 693.

YING NIANG TZE V. ANDREWS ET AL., APR. 27, 1918. 729

ity to that purpose. He testifies indeed that he was present
at the office on business days "sometimes one hour, and
sometimes an hour more, and sometimes two hours." But
this is contradicted by defendant's witnesses who say that
he rarely remained more than a half hour, did not come
at all on some days and came less frequently after the first
month. It is true that the contract does not specify the
place where plaintiff's time and ability were to be em-
ployed and that the mere fact that he was not at the office
would not of itself disclose noncompliance. But we still
think it incumbent on plaintiff to show that his time and
ability were employed somewhere for the required purpose.
The most that he claims on this point is that "all the busi-
ness of the firm was always in my mind." But in view
of the undisputed fact that plaintiff was at the time in-
terested in several other lines of business to one of which,
similar to that of defendant, he was devoting, according
to a not unfriendly witness (Roche) about half his time,
we feel that something more precise and specific was re-
quired from the plaintiff in order to prove compliance
with this clause of the contract.

It is also urged that defendant's import department was
already taken care of by others and that it had no proper
organization for exporting. But it would seem that the
establishment of such an organization would have afforded
a very appropriate field for plaintiff's activities and, from
the general manager's testimony, was one of the purposes
of employing him. Nor does it appear that he might not
have undertaken to extend the import business independ-
ently of the company's existing staff. At any rate without
a specific showing that plaintiff made attempts in these
directions, which were hindered or prevented by circum-
stances beyond his control, we are unable to find that this
essential averment has been established.

III.

Wholly aside from the foregoing it will be seen that
the principal breach complained of by plaintiff is the failure
to pay his monthly salary of Tls. 300.00 beginning with
March, 1917. Plaintiff's contention is that he was to re-

730 I EXTRATERRITORIAL CASES.

ceive the salary as a director and that if he acted as a
director, which it is conceded he did, he was complying
with the contract. But it appears that none of the other
directors, outside of the general manager received any
salary. Moreover, it will be seen that in the contract
plaintiff is "referred to as the Chinese Manager and Di-
rector" and defendant's representative testifies that the
chief purpose of making the arrangement by which plain-
tiff should become associated with the company was that
its business might be extended among the Chinese. This
appears more reasonable than to assume that the company
intended to single out plaintiff as the one director to re-
ceive a salary in discrimination against the others. The
condition upon which plaintiff was to receive "such salary"
seems to have been that he "devote the best part of his time
and ability to furthering the interests of the company."

Indeed if we were to adopt plaintiff's contention that he
was promised "such salary" as a director only, he would
find himself in an even worse plight. For the clause in
the contract by which "the company agrees that Mr. Ying
Niang Tze become a Director" is by the American law
contrary to public policy. The power to choose corporate
officers belongs exclusively to the shareholders and a con-
tract which attempts to impair it is void.^

Neither party has questioned the validity of this contract
and plaintiff, by asking its rescission, assumes its validity.*
We need not, therefore, stop to determine whether it is

'Federal. West v. Calnden, 135 U. S., 507, 34 L. ed., 254, 10 Sup.
Ct., 838.

Kansas. Noel v. Drake, 28 Kan., 265, 42 Am. Rep., 162.

Massachusetts. Woodruff v. Wentworth, 133 Mass., 309; Noyes
V. Marsh, 123 Mass., 286; Guernsey v. Cook, 120 Mass., 501, 117 Mass.,
548.

Michigan. Wilbur v. Stoepel, 82 Mich., 344, 46 N. W., 724.

Minnesota. Dickson v. Kittson, 75 Minn., 168, 77 N. W., 820.

New Hampshire. Harris v. Scott, 67 N. H., 437, 32 Atl., 770.

New Jersey. Cone v. Russell, 48 N. J. Eq., 208, 21 Atl., 847.

New York. Fennessey v. Ross, 39 N. Y. Supp., 323.

North Dakota. Gage v. Fisher, 5 N. D., 297, 65 N. W., 809.

Texas. Withers v. Edmonds, 26 Tex. Civ. App., 189, 62 S. W., 795.

Utah. Flagstaff, etc. Co. v. Patrick, 2 Utah, 304.

* Gillespie v. Battle, 15 Ala., 276, 285.

YING NIANG TZE V. ANDREWS ET AL., APR. 2 7, 1918. 731

void in toto. But the clause regarding the directorship
certainly is, and if it were inseparable from the salary-
provision the latter would necessarily be void also. Under
either construction, therefore, plaintiff could not recover
on that clause.

Plaintiff does not claim to have acted under the contract
until November, 1916, and it is undisputed that he was
paid for that and the three following months. If the sub-
sequent non-payment constituted a breach it was only such
if defendant was obliged under the contract to continue
the employment for a longer time. But it will be seen
that the contract fixes no definite term. Plaintiff's counsel
argues that he was entitled to continue the employment
and to receive the salary as long as he retained his owner-
ship of the shares. But the American rule is that where
the duration of a contract of employment is not expressly
fixed it is terminable at the will of either party.^

'Federal Wilder v. U. S., 5 Court of Claims, 462.

Alabama. Howard v. East Tennessee etc. R. Co., 91 Ala., 268, 8
So., 868; but see Moss v. Decatur etc. Co., 93 Ala., 269.

Arkansas. Haney v. Caldwell, 35 Ark., 156.

California. De Briar v. Minturn 1 Cal., 450; Lord v. Goldberg,
81 Cal., 596, 22 Pac, 1126.

Colorado. K. P. R. Co. v. Roberson, 3 Col., 142.

Delaware. Greer v. Arlington etc. Co., 1 Penne., 581, 43 Atl., 609.

Illinois. Orr v. Ward, 73 111., 318 (tried before Gary, J.)

Kentuckij. Louisville etc. R. Co. v. Offutt, 99 Ky., 427, 59 Am. St.
Rep., 467, 36 S. W., 181; Louisville etc. R. Co. v. Harvey, 99 Ky., 157,
34 S. W. 1069; Perry v. Wheeler, 12 Bush, 541.

Maryland. McCullough Iron Co. v. Carpenter, 67 Md., 554, 11 Atl.,
176.

Massachusetts. Harper v. Hassard, 113 Mass., 187.

Missouri. Finger v. Brewing Co., 13 Mo. App., 310; Evans v. R.
Co., 24 Mo. App., 114.

New York. Martin v. N. Y. L. Ins. Co., 148 N. Y., 117, 42 N.
E., 416; Copp V. Colorado etc. Co., 46 N. Y. Supp. 542, 20 Misc., 702.

North Carolina. Edwards v. Seaboard R. Co.,' 121 N. C, 490, 28
S. E., 137.

Oregon. Christensen v. Borax Co., 26 Or., 302, 38 Pac, 127.

Pennsylvania. Coffin v. Landis, 46 Pa. St., 426; Peacock v. Cum-
mings, Id., 434; Kirk v. Hartman, 63 Pa. St., 97.

Rhode Island. Booth v. Nat. etc. Co., 19 R. I., 696, 36 Atl., 714.

Wisconsin. Prentiss v. Ledyard, 28 Wis., 131.

732 I EXTRATERRITORIAL CASES.

"In England," says Mr, Wood,' "it is held that a general hiring,
or a hiring by the terms of which no time is fixed, is a hiring by
the year. * * * With us, the rule is inflexible that a general or
indefinite hiring is, pnnia facie, a hiring at will."

If, therefore, plaintiff had elected to terminate at the
end of February, 1917, or even of November, 1916, that
part of the agreement which required him to ''devote the
best part of his time and ability to furthering the interests
of the Company" he might, under the doctrine above stated,
have done so with impunity. And the rule works both
ways. So long as neither party saw fit to require that the
contract fix a definite term for said arrangement the de-
fendant as well as the plaintiff was authorized to terminate
it after the first month.' And such appears to have been
the effect of the notice given by defendant's manager, as
testified to by several Vv^itnesses, that defendant would pay
no more salary. Plaintiff may not thereby have ceased to
be a director but the special employment as "Chinese
Manager," for which the salary seems to have been in-
tended, did, we think, terminate.

The only other breach alleged in the petition is the non-
payment of "plaintiff's director's fees which plaintiff al-
leges on information and belief amount (to) the sum of
Tls. 300 or thereabouts." No evidence is offered in sup-
port of this last allegation nor to the effect that fees have
been paid to or earned by any of the directors during the
period of plaintiff's incumbency. On the other hand de-
fendant's manager testifies that plaintiff "is entitled to the
director's fees of the next annual meeting" which will
occur "about the end of the month;" and in the absence
of any proof that such fees are available to the other di-

' Master and Servant (2d ed.), sec. 136.

"As to the English rule that a general hiring shall be taken to be
a hiring for a year (2 Chitty's Cont., 841), we have not found any
American case which recognizes it, and we think it has not been
adopted in this country. In England, the rule stands on custom and
usage, and it is not contended that any such usage prevails in this
country (2 Pars. On Cont., 32-33 n)." Hallett, C. J., in K. P. R.
Co. v. Roberson, 3 Col., 146.

' Louisville etc. R. C. v. Harvey, 99 Ky., 157, 34 S. W., 1069.

UNITED STATES V. ANTONIO, MAY 3, 1918. 733

rectors before that time we are unable to find that there
has been a breach of the contract in that connection.

It is accordingly considered and adjudged that plaintiff
take nothing by his petition and that defendant recover
its costs.

IN THE UNITED STATES COURT FOR CHINA.
United States v. Pablo Antonio.

[Cause No. 649; filed May 3, 1918.]

SYLLABUS.
(By the Court.)

1. SLANDER. While at common law slander is not a crime, under an

Act of Congress extended to this jurisdiction a false imputation
against female chastity is penalized by fine or imprisonment or
both.

2. Id. : Justification. It is not a sufficient justification for one who

repeats or circulates such a charge that he heard it from another.

Chauncey P. Holcomb, Esq., U. S. Dist. Atty., for the
prosecution.

Frank W. Hadleij, Esq., for the defense.

Lobingier, J.:

The defendant, an American subject (Filipino), is ac-
cused of having made a false charge of unchastity in using
of and concerning the complaining witness

"Words in the Tagalog language, of the tenor following: 'Si * * *
ay bina babaye ni * * *, and which being translated into the
English language, is as follows: 'Mrs. * * * has committed adult-
ery with * * *.' "

The victim of this alleged charge is a Filipina, eight
years married, who has been the mother of five children,
two of whom are now living. It is admitted by the accused
himself that the charge is without the slightest foundation.
Indeed he states that he has known her for seven or eight
years and that her conduct and reputation are both good.
He denies that he made the charge at all ; but four wit-
nesses testify that he told them substantially, and for the

734 I EXTRATERRITORIAL CASES.

most part separately, what is alleged in the information.
Among these were the husband of the complaining witness
and her brother-in-law and it naturally followed that the
husband was greatly distressed especially as the com-
plaining witness was then absent in Manila. A telegram
purporting to have been sent to her by her brother-in-law
is produced in evidence, reading: "Come immediately
* * * (the husband) in great trouble."

This testimony does not bear the marks of collusion.
Indeed there are certain differences which defendant's
counsel refers to as contradictory ; but the discrepancies
do not appear to be greater than such as would arise among
various individuals relating circumstances some time after
they occurred. Moreover, we agree with the District At-
torney that there is no adequate motive which would lead
the husband and brother-in-law of this woman falsely to
charge the accused with having made such a statement;
for the effect upon themselves and their family of giving
it publicity could be nothing else than disagreeable in the
extreme. No reason appearing, therefore, why the wit-
nesses for the prosecution should not be believed, their
testimony being corroborated by the telegram in question.
and defendant's denial being without corroboration, we
have no alternative but to give credit to their testimony in
preference to his.

It is true that the witnesses declare that the accused in
making the statement to them claimed to have heard it
from another Filipina, But in testifying for himself ac-
cused makes no such claim and it would not have consti-
tuted a defence if he had actually proven such a claim.
For one cannot justify defamation by quoting another.'
It would not do to permit a party to escape the consequences
of such a cruel imputation upon a worthy and highly
respectable wife and mother by merely attributing it to
someone else. A woman's reputation cannot be exposed to
any such peril and one who circulates false rumors con-
cerning it must assume the responsibility therefor and ac-
cept the consequences.

' Cyc, XXV, 415.

KING PING KEE.V. FOOD MFG. CO., MAY 10, 1918. 735

Slander (i. e., unwritten defamation) was not a crime
at Common Law,- but under the Act of Congress of March
3, 1901, which is in force here as regards those under
American jurisdiction :

"Whoever wrongfully accuses any woman of unchastity shall be
punished by a fine not exceeding five hundred dollars or by imprison-
ment not exceeding one year, or both, and shall also be liable to a
civil action for damages by the party injured." ^

The defendant is hereby sentenced to three months of
imprisonment to be served in the prison for American con-
victs in Shanghai, unless transferred elsewhere, and to
pay the costs of this prosecution.

IN THE UNITED STATES COURT FOR CHINA.

King Ping Kee, Plaintiff, v. American Food Manufac-
turing Co., Defendant.

[Cause No. 619; filed May 10, 1918.]

SYLLABUS.

(By the Court.)

1. CONTRACTS: INTERPRETATION. The rule of contra proferentem

applied.

2. Id. : Damages : Loss of Profits constitutes a proper item of damage

for a breach of contract only so far as it could reasonably have
been foreseen by the parties when the contract was made.

3. Id. : Statute of Frauds. Before partial delivery may afford a

substitute for the required memorandum, the contract itself must
be established.

4. Id. : Employment: Termination. A notice, which does not by its

terms take effect at once, to terminate a contract of emplojmient,
will not relieve the employee from his obligation to perform a
subsidiary contract, at least so long as he continues in the
employer's service.

5. SET-OFF: WHEN Allowed. In American law set-off is "allowed

in actions founded upon contract and only of obligations spring-
ing from contract."

6. Id.: Distinguished: A Counterclaim may arise from any cause

of action, including a tortious one, provided it be "connected
with the subject of the action."

' Id., 569.

' 31 U. S. Stats, at Large, Ch. 854, Sess. 11, sec. 818.

736 I EXTRATERRITORIAL CASES.

7. Id. : In Extraterritorial Courts. "So far as set-off is a defence
{i. e., 'to the extent of the claim asserted') it may be pleaded"
against an alien plaintiff in an American extraterritorial court.

Messrs. Fleming & Davies, by A/r. Davies, for plaintiff.
Messrs. Rodger & Haskell, by Mr. Haskell, for defendant.

LOBINGIER, J.:

Plaintiff sues to recover money advanced and salary
earned under a written contract by which he became de-
fendant's compradore agreeing to furnish it —

"With advance money as may be needed to purchase goods up to
the amount of Tls. 20,000."

The instrument further provided —

"That this agreement shall continue in force for the period of
three years from date. If the compradore breaks the conditions of
this agreement the company may discharge him by giving one month's
notice, and he shall have all money due him paid at the end of that
month. The compradore w^ill have the same right."

The prayer is for Mexican $1,768.47 as "advance money"
and Shanghai Tls. 400 salary.

Defendant's answer admits the nonpayment of the
amounts claimed and alleges that the same are not due be-
cause plaintiff has failed to comply with the requirements
of the contract. By way of set-off it claims damages in
the sum of Mexican $1,666.66 as a result of plaintiff's
failure to pay defendant's compradore order for Tls. 300 ;
damages in the sum of Mexican $714 for breach of a
subsequent contract to deliver eggs during October, 1917 ;
and damages in the sum of Mexican $813.60 for failure to
comply with a second subsequent contract to deliver eggs
during November, 1917.

Plaintiff's claim for salary is not disputed, it being ad-
mitted that he continued as compradore for three months
and was paid for the first only. Of his claim for advance-
ments, items amounting to Mexican $636.39 are undisputed,
and three additional items of salaries paid to agents are
admitted, making a total of Mexican $797.39. The balance
of the amount claimed by plaintiff is alleged to have been
either advanced without authority or to have been properly

KING PING KEE V. FOOD MFG. CO., MAY 10, 1918. 737

chargeable to his own account. Part of this balance is for
expenses in maintaining agencies in the interior. The con-
tract expressly provides (par. 11) that while these agents
"shall be under the control of the compradore" the salaries
of themselves and their assistants "shall be paid by the com-
pany." The item of expenses on the part of these agents is
not expressly mentioned in the contract; yet it must have
been contemplated by the parties for it could hardly have
been supposed that the agents themselves would defray the
expenses of the company's agencies. Plaintiff testifies,
and it is not denied, that it is the Chinese custom to pay
employees' expenses. On the other hand, defendant's
general manager testifies that "we had a dispute about
* * * the agency expenses" and that this was definitely
settled "in one of the later agreements." Now this was
the second subsequent contract already mentioned of No-
vember 5 and the provision referred to is as follows:

"That the Compradore will pay all the expenses of maintaining
the different egg agencies including salaries, rent, egg baskets, etc.,
for the month of October, 1917, and the months thereafter."

Since under this plaintiff's liability is expressly limited
to "the month of October, 1917, and the months thereafter"
and since the expenses now in question were incurred during
September, we are of the opinion, in view of all of the
foregoing, that defendant is fairly chargeable with said
expenses. The original contract appears to have been
drawn by it, the payment of salaries assumed by it and
expenses which must have been foreseen should we think
have been expressly excluded if defendant desired to avoid
liability therefor. The rule of contra proferetem — i. e., that
the instrument is to be construed most strongly against the
one who prepared it — seems to apply.^

The only remaining question under this branch of the
case is, What properly are expenses? The first disputed
item of $12.56 for postage stamps and supplies appears to
be fairly included in that category. But defendant's gen-
eral manager testifies that he did not authorize the ex-
penditure of the second item of $180 for baskets and that

^ Corpus Juris, XIII, 545.

14008 O. W. 47

738 I EXTRATERRITORIAL CASES.

during September the company was not engaged in the
chicken business for which the baskets were supposed to
have been purchased. The burden was upon plaintiff to
show that these were necessary items of expenditure and
we do not think that he has met the burden. He states
that defendant's agents now have the baskets and that they
can be used ten times. Plaintiff is therefore entitled to
claim, and should be able to use, them but we do not find
that they are a proper charge against the defendant, and
the same observations apply to the other items of $38t)
and $95 for similar expenditure.

Plaintiff testifies that the item of $15.69 was a balance
due for chickens purchased for defendant and that the item
of $6 was for sieves used in its business. This does not
seem to be overcome by any testimony on the part of de-
fendant. Plaintiff says further that he spent $10 for a
trip to Yangchow on company business and the defendant's
general manager merely says that he does not know
whether plaintiff went on such business or not. The item
of $17.35 for miscellaneous expenses plaintiff says covered
telegrams, postage and other sundi'ies which appear to be
fairly included under expenses. Defendant's manager says
that he did not authorize these but does not say that they
were not necessary for the maintenance of the business.
The item of $462.52 for the agency at Chinkiang includes
the $380 already mentioned for chicken baskets and the
item of $285.59 for the agency at Tsingkiangpu includes
the $95 for the same sort of expenditure, which has al-
ready been disposed of. The item of $10 for troughs
seems to belong in the same category. The balance of the
claims for expenses at the three agencies, including $142.07
for the agency at Yangchow, for which plaintiff testifies
that he made out statements to defendant's general man-
ager, do not seem to be sufficiently impugned to prevent
their inclusion as proper expenses under the rule above
adopted. Excluding the baskets and troughs the total of
these disputed items aggregates $466.78 which, being added
to the amount of $797.39 already mentioned, makes a
grand total of $1,264.17, which we find the plaintiff is
fairly entitled to claim.

KING PING KEE V. FOOD MFG. CO., MAY 10, 1918. 739
II.

As we have seen, however, defendant pleads a set-off
aggregating much more than this amount. The English
rule is that in an extraterritorial court a counter-claim
cannot be pleaded against an alien plaintiff.-

In the American law of pleading a distinction is made
between a counter-claim and a set-off, the latter being
"allowed in actions founded upon contract and only of
obligations springing from contract." ^ A counter-claim on
the other hand may arise out of any cause of action, even
a tortious one, provided it be "connected with the subject
of the action," * and, of course, where it exceeds the original
demand, judgment is regularly rendered in defendant's
favor for the excess.^ The American rule for actions in
an extraterritorial court is that "so far as set-off is a
defense (i. e., to 'the extent of the claim asserted' by an
alien plaintiff) it may be pleaded." '^ Of course no judg-
ment may be rendered in such a court against an alien ;^
but any claim which he proves may be reduced to the

'Imperial Japanese Government v. P. & O. Co., A. C. (1895), 644-
660, where the original action and the counterclaim both sounded in
tort. See ante, p. 31 note.

'Bliss, Code Pleading (3d ed.), sec. 370.

^Id., sec. 371.

' Cyc, XXXIV, 761.

" Opinion of Attorney-General Speed, ante, p. 27.
So in the English case:

"While their Lordships are of opinion that the counterclaim ought
not to be allowed, the views they have expressed will not interpose any
obstacle to the respondents using every means of defence to the ap-
pellants' claim. If they can show that the Chishima was alone to
blame, or that the Revenna was not to blame, they will succeed in de-
feating it. If it should appear that both vessels were to blame a
question of some difficulty may arise. It is clear that the plaintiffs,
according to the law administered in the Admiralty Court, could
recover in that case no more than one-half of the damage they have
sustained. It is further clear that if there were a cross-suit upon
which the Court was competent to adjudicate, the damage sustained
by both vessels would be ascertained, each would bear half of the
total loss." Imperial Japanese Government v, P. & 0. Co., (1895)
A. C, 659.

'Id.

740 I EXTRATERRITORIAL CASES.

extent of another claim established against him by the
defendant so far at least as the latter is founded on con-
tract. This appears to be an equitable rule, fair to both
parties and subject neither so strongly to the objection in
the English case above cited nor to the claim ' that extra-
territoriality operates unfairly against those for whose
benefit it is designed. With the rule in mind, therefore,
we may proceed to consider the set-off pleaded by de-
fendant.

As already mentioned, the first of these is a claim for
damages alleged to have resulted from plaintiff's failure
to pay a compradore order for Tls. 300. Plaintiff admits
that he did fail to pay it and defendant's contention is that
it was thereby prevented from purchasing tin for canning
chickens and that during the month of September it could
have canned and sold five hundred tins per day at a net
profit of $1,200. Defendant's manager shows that he
protested against this non-payment but neither in the letter
which he wrote nor elsewhere does it appear that plaintiff's
attention was called to the loss of expected profits for
which defendant now claims damages, nor that the former
had reason to suppose that such results would follow. On
the contrary plaintiff testifies that he understood defendant
to be a wealthy corporation, having been informed that its
capital was G. $500,000.

The rule as to the measure of damages in such a case
was thus stated by Baron Alderson in a decision ^ which
has since become classic:

' Tyau, Legal Obligations Arising from China's Treaty Relations
(1917), 53, 54.

" Hadley v. Baxendale, 2 C. L. R., 517, 9 Exch., 341, 18 Jur., 358,
23 L. J. Exch., 179, 2 Wkly. Rep., 302, 26 Eng. L. & Eq., 398, 5 Eng.
Ruling Cases, 504 (1854). "So entirely is the later law founded on
this case that the great body of cases since decided, involving the
measure of damages for breach of contract, resolve themselves into
a continuous commentary upon it." Sedgwick, Damages (9th ed.)
263, note.

KING PING KEE V. FOOD MFG. CO., MAY 10, 1918. 741

usual course of things, from such breach of contract itself, or such
as may reasonably be supposed to have been in the contemplation of
both parties, at the time they made the contract, as the probable
result of the breach of it. Now, if the special circumstances under
which the contract was actually made were communicated by the
plaintiffs to the defendants, and thus known to both parties, the
damages resulting from the breach of such a contract, which they
would reasonably contemplate, would be the amount of injury which
would ordinarily follow from a breach of contract under these special
circumstances so known and communicated. But on the other hand,
if these special circumstances were v/holly unknown to the party
breaking the contract, he, at the most, could only be supposed to
have had in his contemplation the amount of injury which would arise
generally, and in the great multitude of cases not affected by any
special circumstances, from such a breach of contract. For, had the
special circumstances been known, the parties might have specially
provided for the breach of contract by special terms as to the damages
in that case; and of this advantage it would be very unjust to deprive
them."

This rule has not only been generally adopted in
America i° but is also substantially the same as that of
the civil law " from which indeed it appears to have been
derived ^" and under it the damages claimed could not
properly be awarded against plaintiff.

The next item of set-off is a claim for damages for breach
of an alleged contract with plaintiff to deliver eggs during
the month of October. Plaintiff denies that he made any
such contract and the only testimony that he did is that of
defendant's general manager. It is true that the latter
appears to have written him a letter (Ex. "3") stating
that such an agreement had been made but this is no better
evidence than the general manager's own testimony, and
no written memorandum of such a contract is produced
altho the alleged value of the eggs to be delivered far ex-
ceeded the amount of G. $50 which consequently would

" Cyc, XIII, 33.

^^ France. Civ. Code, art. 1150.
Germany. Civ. Code, art. 252.
Japan. Civ. Code, art. 416.
Louisutna. Rev. Civ. Code, art. 1934 (I).
Spain. Civ. Code, arts. 1105, 1107.

''Bowas V. Pioneer Tow Line, 2 Sawy. (U. S.), 21, 30; 3 Fed. Cas.,
1713, p. 1028.

742 I EXTRATERRITORIAL CASES.

have brought it within the Statute of Frauds and required it
to be in writing.^ ' It is true also that an exception is made
in case of partial delivery but we find no more testimony on
that point than the general manager's statement that the
plaintiff "only delivered I think 180 baskets," and as it
does not sufficiently appear that the minds of the parties
met on a contract under which these were delivered, we
are unable to allow this item of set-off.

The third and last claim is for the failure to comply
with a written contract alleged to have been signed by
plaintiff on November 5, 1917, and providing

"that he will gTiarantee to deliver to them (the Amos Bird Company)
in November, 4,250 baskets of egg^, each basket to contain at least
1,000 e^rgs, and as many more baskets as he can.

"(3) That the Compradore will pay to the American Food Mfg.
Co., Ltd., 2% commission of the price received from the Amos Bird
Co. for such eggs for October and months to follow. Such commis-
sion to be paid to this company at the end of each month beginning
with November 30th and this settlement shall include the commis-
sion for October and November."

The plaintiff does not deny the execution of this contract.
His counsel objects to the admission of the instrument in
evidence on the ground that "it was entered into between
these parties at a date later" than the contract sued upon,
thereby at least implying its genuineness. This item of
set-off arises upon a contract which, as we have seen, is all
that is required. The claim need not necessarily be con-
nected with the subject of the original action, tho we
think this one is, for its evident purpose was to utilize
the relation of principal and compradore.

Plaintiff's counsel further contends that plaintiff was
prevented from carrjdng out this' contract by defendant's
letter (Ex. "F") of November 21 notifying plaintiff that
defendant had secured a new compradore and "should like
to have him assume office as soon as possible." But plain-
tiff himself states that he "acted as compradore until the
end of November" and that he did not leave the defendant's
employ until December 2. Clearly then since he continued

" Act of Congress of March 3, 1901, Sess. II, 31 U. S. Stats, at
Large, Ch. 854, sec. 1119; 31 U. S. Stats, at Large, Sess. I, Ch.
786, Tit. II, sec. 1044 (5).

SUNG PING SUNG V. ROBT. DOLLAR CO., MAY 17, 1918. 743

SO to act he was not prevented from performing the con-
tract to dehver eggs during November. Indeed it is not
at all clear that even if he had left earlier he would have
been absolved from the requirements of this contract which
does not appear to have been dependent upon the exercise
of his duties as compradore.

Defendant alleges, and we think proves, that it had
secured a purchaser for these eggs at a price of $10.00 a
basket which would have yielded it a profit of twenty cents
per basket or a little more than its total claim of $813.60.
This amount must have been fairly within the contempla-
tion of the parties; the provisions governing it are clearly
and specifically set forth in an instrument which plaintiff
does not deny having signed; and we find no legal reason
for relieving him from his admitted failure to perform it.
The item of $813.60 which defendant shows that it lost
by virtue of such failure must, therefore, be deducted
from plaintiff's claim already estimated as established at
$1,264.17. The balance is Mexican $450.57 for which
amount, together with the sum of Shanghai Tls. 400 by
way of salary, judgment is accordingly rendered in favor
of plaintiff and against the defendant; and as the latter
has made no offer to pay any amount plaintiff is also en-
titled to his costs.

IN THE UNITED STATES COURT FOR CHINA.

Sung Ping Sung, doing business under the name and
style of Chong Kee, Plaintiff, v. The Robert Dol-
lar Company, a Corporation, Defendant.

[Cause No. 578; filed May 17, 1918.]

SYLLABUS.
(By the Court.)

1. CONTRACTS: PERFORMANCE: QUESTION OF Law. Whether articles

furnished under a contract comply with its specifications is a
question of law.

2. Id. The American law does not exact literal compliance with

such specifications.

3. Id. : Substantial Performance is, nevertheless, required and that

phrase must be interpreted with reference to the purposes for
which the goods were ordered.

744 I EXTRATERRITORIAL CASES.

4. Id. : Entire. If part only of a consi^ment, furnished under an

entire contract, substantially complies with the specifications
the vendee is not obliged to accept delivery.

5. Id.: Rule Applied. Where plaintiff ordered for sale to retailers a

quantity of nails which were found to vary in great part from
the specifications, proof of substantial performance must include
a showing that the variations will not affect salability in the
retail trade.

6. Id. : Advance Payment. Without such a showing the vendor is not

entitled to retain advance payments.

Messrs. E. W. Godfrey and Jernigan, Fessenden & Rose,
by Mr. Rose, for plaintiff.

Messrs. Fleming & Davies, by Mr. Fleming, for defendant.

LOBINGIER, J.:

The plaintiff who is a "general metal dealer in Hankow"
brings this action to recover advance payments made on
contracts of which the petition alleges :

"3. That on or about the 15th day of March, 1916, plaintiff and
defendant entered into a certain contract or contracts in writing
whereby plaintiff agreed to buy from defendant and defendant agreed
to sell to plaintiff 4,000 and 1,000 kegs of nails upon the terms and
conditions in the aforesaid contract or contracts set forth.

"4. That one of the terms and conditions of the aforesaid con-
tract or contracts is a warranty on the part of the said defendant
that the aforesaid nails shall conform to and be in accordance with a
certain specification in said contract of contracts set forth. * * *.

"7. * * * plaintiff on or about the 15th day of March, 1919,
paid or caused to be paid to the said Chartered Bank of India, Aus-
tralia and China or to defendant the respective sums of Hankow Tls.
14,400 and Tls. 3,600. * * *.

"12. That on or about the 12th day of December, 1916, plaintiff
notified defendant that the whole quantity of nails tendered by de-
fendant did not conform to and were not in accordance with the spec-
ification in said contract or contracts set forth and that plaintiff
would not accept the nails tendered by defendant in performance of
the aforesaid contract or contracts and at the same time made de-
mand upon defendant for the return of the bargain money deposited
as aforesaid."

The prayer is for judgment in the sum of Hankow
Tls. 18,000 with interest at 6 per cent per annum from the
date of payment.

None of the foregoing averments are expressly denied,

SUNG PING SUNG V. ROBT. DOLLAR CO., MAY 17, 1918. 745

and the first three are expressly admitted, in defendant's
answer which further —

"alleges that the nails tendered the plaintiff herein pursuant to the
terms of said contracts were according to the specifications mentioned
therein and that the shipment of the same was made according to and
in compliance with the terms and conditions of said contracts; and
defendant denies each and every allegation in said petition contained
that is inconsistent herewith."

This last averment raises the one issue to which the
case was finally reduced before trial and practically all
of the evidence relates to the single question whether "the
nails tendered * * * were according to the specifi-
cations."

The contracts (Ex. "A" and "B") provide that "specifi-
cation is guaranteed * * * as per copy on the back
of this contract," the indorsement of the first being as
follows :

"SPECIFICATION FOR 4,000 KEGS WIRE NAILS.
1"X16 14X15 lixU 11X13 2"xl3

394 356 364 666 692

24x12 2^X11 23X1.0 3"X10 3Jx9

384 416 32 223 144

4"X8 4JX7 5X6 6X5 6Jx4 7"x4

148 80 64 14 7 16

It is conceded that plaintiff never accepted any portion
of the nails and that the defendant has the whole consign-
ment as well as 30% of the purchase price. In order to
justify its retention defendant must show that plaintiff
was at fault in not accepting delivery and that the nails
were of such a quality as he had no right under the con-
tract to reject.

To avoid the burden of inspecting the entire contents
of the five thousand kegs the parties, thru their respective
counsel, entered into an arrangement under which the
consular court marshal at Hankow in the presence of said
counsel "took samples of each keg of nails which was
opened by order of the litigant" and attached the same as
exhibits to a deposition which, pursuant to stipulation,

746 I EXTRATERRITORIAL CASES.

has been received in evidence. There are seventy-five
of these exhibits, each containing three nails, and an in-
spection w^as made in open court by one of defendant's
witnesses v^ho tested the samples w^ith a "Stubs Wire
Gauge" (pp. 19-32) which is admitted (p. 40) to be
"exactly the same as the Birmingham Wire Gauge," the
latter being agreed by all the witnesses (pp. 5, 9, 40, 60,
61) to be the gauge generally used for the hardware trade
in China. According to this witness a large proportion
of the samples varied one gauge or more from the spec-
ifications. Defendant's counsel objects that the witness
"had no scientific or technical knowledge on the subject" but,
as he elsewhere concedes, "it does not require any partic-
ular training or education to test a nail."

Another witness whose deposition was taken at Hankow,
states that out of sixteen different samples which he exam-
ined only three were found to gauge correctly. Counsel
again objects that the nails which this witness examined
are not identified but on cross-examination he testified
(dep. p. 3) that his own firm had been "negotiating to
purchase a good portion of these particular nails from
The Robert Dollar Company ;" they are also referred to
(dep. p. 6) as "the five thousand kegs;" and plaintiff
(dep. pp. 5, 7) refers to the nails in question as those
which the said witness inspected. The identification seems,
therefore, to be sufficient.

But we have not relied upon these witnesses alone, nor
chiefly, for, following the suggestion of defendant's counsel
in his brief that the court examine the samples and make
its own test, such an inspection has been made with the
result that out of the entire 225 samples only 5.78% are
found to conform exactly to the specifications, while prac-
tically 17% vary more than one gauge therefrom.

II.

In construing a contract for the construction of a monu-
ment the Vermont Supreme Court declared ^ that —

"It was a question for the court to say whether the monument wag
a compliance with the contract,"

'Cutler V. Dix, (57 Vt., 347, 31 Atl., 780.

SUNG PING SUNG V. ROBT. DOLLAR CO., MAY 17, 1918. 747

and that it was error to submit —

"to the jury the question whether the variations shown were a
departure from the contract."

The court further said in its opinion —

"While many of the variations were so slight that essentially they
were such as the contract called for, there were others that we must
hold were a substantial departure from the contract. Thus the plinth
was more than 12 per cent longer, and the cap more than 28 per cent
thicker, than the contract dimensions."

It will be seen that the average percentage of these two
departures is about the same as that shown by our test.

The American law does not exact a literal compliance
with the terms of such a contract.^ Thus a variation of
one eleven-hundredth ^ or even of one seventy-fifth * from
the requirements as to quantity will be overlooked in
accordance with the maxim de minimis non curat lex;
but an exhaustive search has disclosed no case where a
difference of 17%, or anything approaching that much, was
excused. For the law does require a substantial perform-
ance '" and that requirement must be applied with reference
to the purposes of the contract. In the case at bar it is
conceded that the nails were contracted for in order to be
resold by plaintiff to small Chinese dealers and we have
to determine whether, in view of the variations above

= Nebraska. Craig v. Weitner, 33 Neb., 484, 50 N. W., 442.

New York. Desmond-Dunne Co. v. Friedman-Doscher Co., 162 N.
Y., 486, 56 N. E., 995, and cases cited.

Pennsylvania. Bailey v. Wayman, 201 Pa., 249, 50 Atl., 767.

Vermont. Drew v. Goodhue, 74 Vt., 436, 52 Atl., 971.

Wisconsin. Meincke v. Falk, 55 Wis., 427, 13 N. W., 545.

' Drew V. Goodhue, 74 Vt., 436, 52 Atl., 971.

'Desmond-Dunne Co. v. Friedman-Doscher Co., 162 N. Y., 486, 56
N. E., 995.

'^Federal. Heine Safety Boiler Co. v. Francis Bros. & Jollett, 117
Fed., 235.

Ohio. Mehurin v. Stone, 37 0. St., 49.

Vermont. Cutler v. Dix, 67 Vt., 347, 31 Atl., 780.

Washington. Schmidt v. North Yakima, 12 Wash., 121, 40 Pac,
790.

Wisconsin. McDonald v. Gardner, 56 Wis., 35, 13 N. W., 689.

See also Page on Contracts, III, sec. 1389.

748 I EXTRATERRITORIAL CASES.

shown, and which are not disputed by any of defendant's
testimony, there was such a substantial performance as
would have enabled plaintiff to resell without meeting ob-
jections as to quality. In the state of the pleadings above
outlined we are of the opinion that the burden of proof
rested upon defendant to show such performance and in
reviewing the testimony we shall consider first that of
defendant's witnesses in order to ascertain how it has met
that burden.

In the cross-examination of defendant's co-manager
the following occurs (pp. 71, 73, 74) :

"Q. Would you consider the Chinaman in normal times would
have been entitled to reject those goods as not being- up to specifica-
tion?

"A. He would.

<<^ * * * * * *

"Q. I would ask you to reconsider your previous answer; do you
say that as a cargo, as a whole, this was up to specification; apart
from war conditions it was up to specification?

"A. No, I would not; in those few cases I would think they were too
much.

«ic ^ 4( 4: He 4! *

"Q. What I want to know is whether they would be entitled to
reject it.

"A. I think they would; whether they would be entitled to reject all
that is the point.

"Q. You think they would be entitled to reject a portion?

"A. Yes, a portion of the cargo."

As to this last point the law has thus been stated in an
instruction which was approved by a court of high stand-
ing—

"If there was a material variation between what he contracted for
and what they furnished, there could be no recovery. In that case
there could be no recovery, even for a part. This was an entire con-
tract, under which Philips, Nimick & Co. agreed to furnish 375 plates,
and the defendant was not bound to accept pai't of those plates and
pay for part of them. He was entitled to a performance of the con-
tract as a whole." °

Another of defendant's witnesses whose testimony coun-
sel contends is "of great value because he is in charge of
the import department of a large American commercial

" Bailey v. Wayman, 201 Pa., 249, 50 Atl., 767.

SUNG PING SUNG V. ROBT. DOLLAR CO., MAY 17, 1918. 749

house and had a large experience with the metal trade,"
testifies on cross-examination as follows (pp. 57, 58) :

"Q. Merchants, dealers contracting for nails to be imported always
specify the particular numbers of the gauges which they require?

"A. Yes.

"Q. And if they want nails of gauge 15 they will order nails of
gauge 15 specifically?

"A. Yes.

"Q. Apart from war conditions, would you consider that if a dealer
ordered nails of 15 gauge and you supplied him with, say, 14 gauge,
that you had carried out your contract?

"A. No, I think that is a little bit too large.

"Q. The difference is too large.

"A. Yes. If we ordered 15 and they went into 14 too easily I would
think that.

"Q. And apart from war conditions, you wouldn't consider strictly
that you had carried out your specification?

"A. If there was a whole gauge difference I would not.

<<^ :{: :f; :}: :J: :{: ^

"Q. Suppose you had a nail li" by 15 gauge specification and
the nails arrived too large for a 14 and too small for a 13?

"A. And supposed to be 15?

"Q. Yes, and arrived between 13 and 14.

"A. The gauge then would be between 13 and 14.

"Q. As an importer you wouldn't consider that you had carried out
your contract.

"A. That is too large a leeway.

"Q. Suppose you specified, for instance, nails of 1" by 16 gauge
and the goods received were between 14 and 15, that is, too small for
14 and too large for 15, you wouldn't consider that as carrying out
your contract?

"A. That is too much.

"Q. Suppose you specified 31" by 9 gauge and the nails on delivery
were too small for 7 and too large for an 8?

"A. Too big a difference if it comes down to a real show-down.

"Q. Would the same apply to specification 3" by 10 gauge where the
gauge was found to be between 8 and 9?

"A. The same."

Our test shows that nearly 20% differed "a whole
gauge" or more — mostly more — from the specifications,
which, according to the witness just quoted, would con-
stitute a failure of compliance.

Still another witness for defendant, a civil engineer,
gave the following testimony on cross-examination (p. 51) :

"Q. In determining whether or not these samples came up to specifi-
cation, if you found the variation of one gauge either way in a nail

750 I EXTRATERRITORIAL CASES.

for which the specifications called for 3" by 10, would you consider
that that sample was up to specifications; the specification is 3" by 10
but you found it varied one gauge either way?
"A. No, I wouldn't, not quite.

<(:,; s|: * * * * *

"Q. If a dealer came to you with a sample of a nail the specifications
in the contract were H" by 15 and the nail gauge li" by 14, would you
consider that the nail supplied was up to the specifications?

"A. Well, it is not the same as the specification but I would advise
him to accept it."

In reply to defendant's counsel, on re-direct examination,
the same witness testified (p. 53) :

"Q. Would you consider it was a substantial compliance?
"A. If you go by the actual letter of the specification it is not.
"Q. You as an architect, you would consider it as compliance and
accept it?

"A. I would accept it."

It will be observed that according to this witness the
"substantial compliance" which the law requires is lacking
here.

Defendant called also another engineer who stated (p.
43) that his experience had been "entirely with the use
of nails" and who expressed the opinion (p. 44) that "for
actual use * * * the variation of one gauge either
way would not make any difference in the common nail."
He added, however (p. 43) :

"I wouldn't say that the gauge is immaterial; I would say that if
I were ordering one-inch nails I would expect to get the gauge near
the standard."

Defendant also called an architect who stated (p. 48)
that he had never given an order for nails but that in
his work as an architect he would consider immaterial a
variation of not more than one gauge.

As to both of these last mentioned witnesses it must
be remembered that our test showed that nearly 17% of
these nails varied more than one gauge, while out of 108
samples tested by the witness first above mentioned 25%
varied to the same extent according to our test. More-
over, we must also remember that plaintiff was ordering
not for his own use nor for actual construction purposes

SUNG PING SUNG V. ROBT. DOLLAR CO., MAY 17, 1918. 751

but only for sale and that in such a case it is not sufficient
that the commodity offered by the vendor is "equally as
good" for some purposes as that ordered by the vendee;
for the latter is entitled to receive the precise article for
which he contracted.^ In one case where the contractor
in constructing a burial vault used four marble slabs where
but one was specified, the court said :

"It is quite immaterial whether in the judgment of the plaintiffs or
others, the structure, as completed, was as durable as the one con-
tracted for or not. It was the right of the defendant to consult his
own judgment and taste and to provide for the construction of a vault
that would best accord therewith, and having provided by the specifi-
cations of his contract for a foundation of a given character, and for
one block of marble to fill the gable of the vault, he was entitled to a
substantial compliance by the plaintiffs with the terms agreed upon,
before he could be called upon to pay any part of the agreed compen-
sation." *

It may be that the nails tendered plaintiff in this case
were as salable as if they had met the specifications of
the contract but we could not so find upon the evidence
above reviewed. Defendant's witnesses do not claim to
know about salability and some of them, as we have seen,
frankly admit that the specifications of the contract are not
complied with.

And if such is the showing made by defendant we are
left much more in doubt as to its sufficiency as a basis
for a finding in defendant's favor when we come to con-
sider the evidence of the plaintiff's witnesses. For they,
including a salesman of the United States Steel Products
Company (p. 7), and another, engaged in importing nails
among other commodities (p. 9), express the opinion that
a variation of one gauge would prevent compliance with
these specifications. Under the rule above stated that
such compliance is a question for the court, such evidence
might have been excluded, had objection been made; but

'Indiana. Lowry v. Cooper, 21 Ind., 269; Alexander v. Dunn, 5
Ind., 122.

Kentucky. Mason v. Cowan, 1 B. Mon., 7.
Ohio. Mehurin v. Stone, 37 O. St., 49.
'Mehurin v. Stone, 37 O. St., 57.

752 I EXTRATERRITORIAL CASES.

that would have required the exclusion also of defendant's
evidence of the same character which would practically
have left it without any evidence of compliance whatever.

It may also be true, as defendant's counsel contends, that
war conditions in America have made it much more difficult
to comply with specifications as to commodities like that
involved here. But it must be remembered that these
contracts were entered into on March 15, 1916, more than
a year before America's entry into the war, and that the
contracts themselves provide a remedy for such difficulties
in that delivery is expressly made "subject to the goods
being obtainable." Under this provision defendant would
seem to have been justified, upon finding, if it did, that
nails of the character specified could not be obtained, in
canceling the contract. But if it preferred to waive that
privilege and to off"er delivery in spite of adverse conditions,
it can only retain the partial pajrment received, by delivery
according to contract. The war conditions, in other words,
would have provided it, thru the clause above quoted, an
apparently valid defense to an action for failure to deliver
but not to an action like this to recover money paid on the
assumption that delivery would be made according to
specification which, it is practically admitted, has not been
done.

The statement of defendant's co-manager at the close of
his testimony as to an offer to replace the cargo does not
support any averment of the answer which alleged, as
we have seen, "that the nails tendered were according to
the specifications." To consider that evidence now when
plaintilf had no warning of it in the pleadings, would violate
felementary rules and lead to the determination of a point
foreign to the issues.

Believing that it would be inequitable as well as con-
trary to law for defendant to retain this money without
a stronger showing of substantial performance than has
been presented here, we have no alternative but to find
for the plaintiff.

It is accordingly considered and adjudged that the
plaintiff have and recover from defendant Hankow Tls.
14,400 and Ts. 3,600 with interest thereon at 12% per cent

IN RE ADOPTION OF WU, MAY 18, 1918. 753

per annum from April 23, 1917, the date of the petition. The
rate of interest is fixed according to the Act of Congress
of March 3, 1901,^ and runs from judicial demand."

IN THE UNITED STATES COURT FOR CHINA.
In re Adoption of Pearl Covert Wu, a Minor.

[Cause No. 653; filed May 18, 1918.]
SYLLABUS.
(By the Court.)

1. ADOPTION: CONSENT OF PARENTS dispenses with the need of ap-

pointing a guardian ad litem, tho the parent has since died.

2. Id. : Origin. The adopted one need not be of American descent

or citizenship prior to adoption.

Dr. H. C. Mei, for petitioners.

Chauncey P. Holcomb, Esq., U. S. Dist. Atty., was notified
in advance and offered no objection to the decree.

Lobingier, J.:

The petitioners in this case, who are husband and wife, '
ask for a decree of adoption of a Chinese girl six years
old who has been in their custody for some time. It ap-
pears from the evidence that the child's father has been
long dead; that the mother died within the last year; that
she was very poor and that in October, 1916, she executed
a document in Chinese, duly witnessed, authorizing the
child's adoption by Mr. Bromley. This document was in-
troduced in evidence (Ex. A) and, with a translation, was
fully proved.

The Acts of Congress relative to adoption provide for the
appointment of a guardian ad litem in case the child is
without parent, guardian or next of kin.^ But these clearly
were not intended for cases where the parent, tho since

" 31 U. S. Stats, at Large, Sess. II, Ch. 854, sec. 1178.

"Cyc, XXII, 1544, 1545.

' Act of June 6, 1900, Sess. I, 31 U. S. Stats, at Large, Ch. 786,
Tit. Ill, sec. 22; Act of March 3, 1901, Sess. II, 31 U. S. Stats, at
Large, Ch. 854, sec. 395.
14008 o. w. 48

754 I EXTRATERRITORIAL CASES.

deceased, has given its consent to adoption; for in such
a case the effect is the same as if the parent were still
living and should now give the consent required by the
statute.

Moreover the child itself expressed in open court her
desire to be adopted by the petitioners with whom she
has lived for more than two years and for whom she has,
evidently, strong affection. On the other hand they are
enga!ged in educational work and are especially fitted to
provide for the child's nurture and training. Indeed the
arrangement appears to work in every way to her advan-
tage and to be most fortunate for her who would otherwise
be left as an object of charity. The law should encourage
and facilitate such relationships and, as was said by the
Supreme Court of Washington,- "in considering cases of
this kind we will make our first consideration the welfare
of the child."

II.

The jurisdiction of this Court to render such a decree
and the general law governing the case have both been
, settled in prior decisions.^ If there is any question here
it arises from the fact that the child is not of American
origin. But that was also true in one of the cases above
cited * where this Court nevertheless rendered a decree of
adoption. For the Acts of Congress under which the Court
functions make no requirement that the child shall be of
American descent. The earlier one authorizes the adoption
of a child residing within the court's jurisdiction while
the later Act provides for "adopting any minor child."
Under such a statute the fact that the adopter and adopted
are of different races constitutes no obstacle."^ Moreover
executive recognition of the practice seems to be extended
by the Department having charge of immigration which
authorizes the admission of "Chinese children who have
been regularly adopted by Americans." "

' In re Potter, 85 Wash., 617, 149 Pac, 23.

' In re Adoption of Alice Alford, ante, p. 441. In re Adoption
of Mary Heal, Cause No. 439.

* In re Adoption of Mary Heal, Cause No. 439.

'In re Pepin's Estate, 53 Mont., 240, 163 Pac, 104.

' Opinion of Department of Commerce and Labor, Oct. 14, 1907.

IN RE ADOPTION OF WU, MAY 18, 1918. 755

Indeed, the process of adoption has been compared " to
marriage which it much resembles. And marriage in an
extraterritorial country like China is not subject to lex
loci as regards either form or capacity.^ As was observed
by a former American Minister to China, who was also
a lawyer of ripe experience,

one "who may lawfully unite in marriage two Americans may also
lawfully unite in marriage one American and one foreigner. The
American is bound by the laws of his country, the foreigner by his
voluntary submission to the laws then and there complied with, and
by his civil contract." "

The analogy to adoption is obvious here. If any for-
eigner, including a Chinese, desires to submit to the Amer-
ican law governing that subject there would seem to be
nothing to prevent him from doing so or an American
Court from awarding to competent Americans the status
of adopting parents of such an applicant.

As regards this Court and those which it has succeeded:

"Jurisdiction in both criminal and civil matters shall, in all cases,
be exercised and enforced in conformity with the laws of the United
States, which are hereby, so far as is necessary to execute such
treaties, respectively, and so far as they are suitable to carry the
same into effect, extended over all citizens of the United States in
those countries, and over all others to the extent that the terms of
the treaties, respectively, justify or require." "

The phrase "over all others" appears quite sufficiently
broad to cover a case like this.

Finally questions relative to adoption cannot be worked
out on the analogy of the common law for it recognized
no such practice,^ ^ nor is it authorized in England ^- or

' Corpus Juris, I, 1380.

* Moore, International Law Digest, II, 492 et seq.

"Minister Denby to Secretary Bayard, Oct 19, 1888, Id., 497; U. S.
Foreign Relations (1889), 75.

'" 12 U. S. Stats, at Large, p. 73, sec. 4; U. S. Rev. Stats., sec. 4086.

"Corpus Juris, I, 1371.

"From Bracton to Blackstone there is no recognition by the com-
mon law of such an artificial augmentation of the family relation
or of a succession by adopted children." In re Ziegler, 143 N. Y.
S., 562, 82 Misc., 346.

^' Halsbury, Laws of England, III.

756 I EXTRATERRITORIAL CASES.

Canada '^ even yet. In the United States the system has
been borrowed from the Civil Law, either directly as in
the case of Louisiana ^* and Texas ^'^ or by a process of
legislation suggested thereby beginning about the middle
of the last century.^^ In either case the ultimate source
is the Roman Law, to which we must resort for the solu-
tion of all doubtful questions relating to adoption. We
have been unable to find in that Law any obstacle to the
adoption of an alien.

The Court being satisfied, in the language of the statute,

"1 Of the identity and relations of the persons;

2. That the petitioner is of sufficient ability and in all respects
a proper person to bring up the child;

3. That it is fit and proper that such adoption should take effect;" "

it is accordingly considered and decreed that said minor
child, heretofore known as Pearl Covert Wu, be named
and hereafter known as Pearl Covert Bromley, and shall
be to all legal intents and for all purposes the child of the
petitioners, Charles L. and Jane D. Bromley, the same as
if born to them.

IN THE UNITED STATES COURT FOR CHINA.

Chinese-American Co., a Corporation, Plaintiff,
v. William H. Tenney, Defendant.

[Cause No. 615; filed May 22, 1918.]

SYLLABUS.

(By the Court.)

1. FOREIGN CORPORATIONS: CONDITIONS OF DoiNG BUSINESS.
Whether the requirements of sections 228 and 231, Ch. 786, 31
U. S. Stats, at Large, are "suitable" and "necessary to execute
the treaties," quaere.

"Corpus Juris, I, 1371, 1372.

" Fusselier v. Masse, 4 La., 423.

^'Eckford v. Knox, 67 Tex., 200, 2 S. W., 372.

'"Woodward's Appeal, 81 Conn., 152, 70 Atl., 453; Hockaday v.
Lynn, 200 Mo., 456, 98 S. W., 585, 8 L. R. A. (N. S.), 117, 118 Am.
St. Rep., 672.

'■ 31 U. S. Stats, at Large, Sess. I, Ch. 786, Tit. Ill, sec. 25.

CHINESE-AMERICAN CO. V. TENNEY, MAY 22, 1918. 757

2. Id. : Who May Invoke. Under the Federal doctrine it seems that

such requirements may be invoked by the Government alone.

3. CONTRACTS: AVOIDANCE. Where a party in his pleading "elects

to avoid" a contract, he cannot afterward be heard to invoke its
benefits.

Messrs. Fleming & Davies, by Mr. Fleming, for plaintiff.
R. T. Bryan, Jr., Esq., for defendant.

LOBINGIER, J.:

The petition in this cause contains the following aver-
ments :

"3rd. That on or about the 15th day of September, 1916, the
plaintiff employed the said defendant and the said defendant agreed
to serve the plaintiff as the sales manager of the plaintiff's paint
department and in consideration for the services to be rendered by the
said defendant as such sales manager, the plaintiff agreed to pay
said defendant, and the defendant agreed to accept, one half of the
net profits realized by the plaintiff upon the sale of paints and painters'
supplies.

"4th. That the said defendant remained in the services of the
plaintiff as aforesaid until on or about the 6th day of February,
1917, when the employment of the said defendant as aforesaid was
terminated at the request of the plaintiff.

"5th. That on the 6th day of February, 1917, when said employ-
ment ceased as aforesaid the said defendant was indebted to the
plaintiff in the sum of Tls. 2,964.88, Shanghai Sycee, on account of
moneys drawn by said defendant for his own uses and purposes from
the funds of said paint department of said business over and above
his one half share of the net profits thereof.

"6th. That on the 30th day of April, 1917, the said defendant
paid on account of his said overdraft the sum of Tls. 774.36, Shanghai
Sycee, leaving a balance of Tls. 2,190.52, Shanghai Sycee, still due
plaintiff."

Judgment for the said amount with interest and costs
is prayed.

The answer admits the first two paragraphs above
quoted, and continues as follows:

"(5) That the defendant admits that when said employment ter-
minated on the 6th February, 1917, he was indebted to the plaintiff
in the sum of Tls. 2,613.14, but he denies that he owes any amount in
excess of that.

"(6) That the defendant admits that he paid to the plaintiff the
sum of Tls. 774.36, leaving a balance due of Tls. 1,838.78, but denies
that he is indebted to the plaintiff in any further amount."

758 1 EXTRATERRITORIAL CASES.

The answer then sets up a counter-claim for commissions
alleged to have been earned amounting to $275.40 and for
damages for terminating the contract between plaintiff
and defendant. This item was later withdrawn. The
answer also contains the following averment:

"(8) That the plaintiff has not filed in the office of the clerk of
the district court, i. e., the United States Court in China, an authen-
ticated copy of its charter or articles of incorporation or a statement
verified by the oath of its president and secretary and attested by
the majority of its directors showing: (1) Its name and the location
of its principal office or place of business without the district;
and if it has any place of business or principal office within the
district, the location thereof; (2) The amount of its capital stock;
(3) The amount of its capital stock actually paid in in money; (4)
The amount of its capital stock paid in in any other way and in
what; (5) The amount of its assets and of what the assets consist,
with the actual cash value thereof; (6) Its liabilities and if any of
its indebtedness is secured, how secured, and upon what property,
nor has it filed in the office of the clerk of the district court, i. e.,
the United States Court for China, a certificate under its seal and
the signature of its president or other acting head certifying that it
has consented to be sued in the courts of the district upon all causes
of action arising against it in the district and that service of process
may be made upon some person a resident of the district, whose name
and place of residence is therein designated, according to Section
six hundred and fifty-four (sec. 654) of the Alaska Code; nor has
the plaintiff filed the written consent of such person designated to
act as agent according to Section six bunded and fifty-five (sec. 655)
of the Alaska Code; nor has the plaintiff filed any report or reports
with the clerk of the district court, i. e., the United States Court for
China, as required by Section six hundred and fifty-eight (sec. 658)
of the Alaska Code; and the defendant expressly pleads as a defence
to the action of the plaintiff that the penalties laid down in Sections
six hundred and fifty-seven and six hundred and sixty (sees. 657
& 660) of the Alaska Code be enforced as he elects to avoid the
contract set forth in the petition of the plaintiff which he is
permitted to do by said sections of the Alaska Code."

The reply is in the main a general denial.

It will be seen that defendant "elects to avoid the con-
tract set forth in the petition." Now the only contract so
set forth is the contract of employment which, it is alleged,
terminated "on or about the 6th day of February, 1917."
Plaintiff, however, is not seeking to enforce that contract
nor any contract relating thereto. It merely asks the re-
turn of certain moneys alleged, and mostly admitted, to

CHINESE-AMERICAN CO. V. TENNEY, MAY 22, 1918. 759

have been received by defendant in addition to and in-
dependently of the compensation allowed him by virtue of
said contract. Such recovery plaintiff would be entitled
to even had there been no contractual relations between the
parties whatever for it merely involves the return of
moneys wrongfully received by a party to his own use.

The question of what law would apply in case plaintiff
were actually seeking to" enforce its contract is, therefore,
superfluous. But it may be observed that counsel, in spite
of a carefully prepared argument, seems to have overlooked
the doctrine adopted by the Supreme Court in such a case
and, therefore, binding upon us regardless of what the State
courts may hold. Congress long ago enacted, e. g. :

"That no act of the Territorial legislature of any of the Territories
of the United States, incorporating any bank or any institution with
banking powers or privileges, hereafter to be passed, shall have any
force or effect whatever, until approved and confirmed by Congress." ^

More than twenty years later the territorial legislature
of Nebraska chartered a bank with power "to buy and
possess property of every kind." The charter, however,
was never approved nor confirmed by Congress and a
conveyance of real estate to the bank was assailed on that
ground ; but the Supreme Court said :

"It is insisted, however, as an additional ground of objection to
this deed, that the bank was not a competent grantee to receive
title. It is not denied that the bank was duly organized in pursuance
of the provisions of an act of the legislature of the Territory of Ne-
braska, but, it is said it had no right to transact business until the
charter creating it was approved by Congress. This is so, and it could
not legally exercise its powers until this approval was obtained, but
this defect in its constitution cannot be taken advantage of collater-
ally. No proposition is more thoroughly settled than this, and it is
unnecessary to refer to authorities to support it. Conceding the
bank to be guilty of usurpation, it was still a body corporate de facto,
exercising at least one of the franchises which the legislature at-
tempted to confer upon it, and in such a case the party who makes
a sale of real estate to it, is not in a position to question its capacity
to take the title, after it has paid the consideration for the purchase." '

^ Act of Congress of July 1, 1836, 5 U. S. Stats, at Large, 61 Ch.
231, sec. 1.

= Smith V. Sheeley, 12 Wall. (U. S.), 358, 361, 20 L. ed., 430.

760 I EXTRATERRITORIAL CASES.

The same doctrine has been laid down in other cases
before and since, ■■ and while some of those cited by defend-
ant's counsel announce a different rule ^ we are not author-
ized to follow them.

We need not, therefore, determine in this proceeding
whether that section of the Act of Congress ^ invoked by
defendant's counsel (which merely declares contracts in
a case like this "voidable at the election of the other
party") is here "suitable" and "necessary to enforce the
treaties" as it must be in order to apply in this jurisdiction.''
For defendant does not elect to avoid any contract which
plaintiff seeks to enforce and it seems probable, under the
doctrine above noticed, that the question in any case could
be raised by the Government alone.

11.

Defendant claims credit for an item of Tls. 165.65 being
half of a loss incurred on a paint contract entered into by
him which loss he says was caused by the contractor's in-
correct estimate. Counsel contends that plaintiff should
share this loss on the ground that the contract between
the two parties constituted a partnership.^ But whatever
would be the case otherwise it must be remembered that the
petition alleges, and the answer expressly admits, that

^Federal Runyan v. Coster's Lessee, 14 Pet., 122, 10 L. ed., 382;
Harris v. Runnels, 12 Howard, 79, 13 L. ed., 901; National Bank v.
Matthews, 98 U. S., 621, 628, 25 L. ed., 188; National Bank v. Whitney,
103 U. S., 99, 26 L. ed., 433.

Alabama. Sherwood v. Alvis, 83 Ala., 115, 3 So., 307, 3 Am. St.
Rep., 695.

Maryland. Lord v. Robinson, 37 Md., 320.

Missouri. Mclndoe v. St. Louis, 10 Mo., 575.

Pennsylvania. Goundie v. Northampton Water Co., 7 Pa. St., 233;
Cochran v. Arnold, 58 Pa. St. 399.

* Osborne v. Shilling, 74 Kan. 675, 88 Pac, 258, 11 Ann. Cas., 319.

In Burr v. House, 3 Alaska, 641, the observations of the court on
this point are dicta since it was held that non-compliance had not
been sufficiently pleaded nor proven.

° 31 U. S. Stats, at Large, Ch. 786, Tit. Ill, sec. 228.

"U. S. Rev. Stats., sec. 4086.

' Citing Miller v. Simpson, 107 Va., 476, 59 S. E., 378, 18 L. R. A.
(N. S.), 962, where the subject is fully annotated.

CHINESE-AMERICAN CO. V. TENNEY, MAY 22, 1918. 761

the contract was one of employment which would neg-
ative the partnership theory. Morever, that is pre-
cisely the contract which defendant in his answer "elects
to avoid" and having so elected he could not be heard to
invoke its benefits.

Defendant also claims credit for an item of Tls.
186.09 v/hich it is agreed by all was collected from plain-
tiff's customers by defendant's Chinese employee, who was
in no way connected with the plaintiff and who receipted
for such collections. Plaintiff's general manager testifies
that the collector stated in defendant's presence that he had
collected and retained this money at defendant's instance
to satisfy a debt due him from defendant. . Referring to
this testimony defendant says in reply to the

"Q. Did you ever say in the presence of Mr. Ramsey or Mr.
Robinson and Mr. Chi Hai Sze also being present that he could
collect this money?

"A. I did not."

It will be seen that this is not a denial of what the
collector is testified to have said and that statement is
consequently undisputed. Defendant's counsel admits that
the question as to this item is purely one of fact and we
do not find that defendant has overcome the showing made
by plaintiff.

As to the claim for commissions it appears that after
defendant's contract with plaintiff had terminated he
brought in a customer who, according to his own testimony,
purchased five thousand yards of serge at $4.50 per yard.
Defendant testifies that the same customer subsequently
purchased $6,200 worth of serge upon which, as upon the
first sale, defendant claims a commission of twenty cents
per yard or $275.40 making his total commissions $1,275.40.
But defendant also testifies that he has been credited with
$1,620 for such commissions which is considerably more
than his highest claim.

It is accordingly considered and adjudged that defendant
take nothing by his counter-claim and that plaintiff have
and recover from defendant the amount claimed in its pe-
tition, to wit: Tls. 2,190.52 with interest thereon at 6%
per annum from November 2, 1917, together with its costs.

762 I EXTRATERRITORIAL CASES.

IN THE UNITED STATES COURT FOR CHINA.

John Layton Company (a Corporation), Complainant,
V. Carl Blomberg, Respondent.

[Cause No. 657; filed June 6, 1918.]

SYLLABUS.
(By the Court.)

1. CONTRACTS: RESTRAINT OF TRADE, The Common Law repugnance

to contracts in restraint of trade has been much modified.

2. Id. The modern doctrine upholds a contract not to engage in a

certain line of business within an extensive, and even unlimited,
area for a limited time.

3. Id. : Divisibility. Even where the contract contains restrictions

which might render it void, still, if divisible, the valid portion
may be enforced.

4. Id. : Remedy. Such enforcement is effected by enjoining the

threatened breach as a method of negative specific performance.

Messrs. Jernigan, Fessenden & Rose, by Mr. Rose, and
Geoffrey H. Wright, Esq., for the complainant.
No appearance for respondent.

Lobingier, J.:

This is a bill in equity, duly sworn to and containing
the following averments:

"1. That the plaintiff is a corporation organized under the laws of
the State of New York and having an agent and carrying on busi-
ness in China and within the jurisdiction of this Court;

"2. That the defendant is an American citizen residing in Han-
kow, China, and within the jurisdiction of this Court;

"3. That the plaintiff is engaged in the manufacture of evaporated,
dried, dessicated and frozen eggs and the defendant was and is
thoroughly familiar with the processes for the manufacture of evap-
orated, dried, dessicated and frozen eggs;

"4. That on or about ninth day of June, 1915, the plaintiff, con-
templating the erection of a plant at Hankow, China, for the pur-
pose of preparing and dealing in and with dried eggs, made and
entered into a contract with the said defendant which said contract
provided as follows:

'Whereas said Blomberg represents that he is thoroughly familiar
with the processes for the manufacture of evaporated, dried, des-
sicated and frozen eggs and has had many years experience in the
industry;

'Whereas the Employer contemplates the erection of a plant at
Hankow, China, for the purpose of preparing and dealing in and

JOHN LAYTON CO. V. BLOMBERG, JUNE 6, 1918. 763

with dried eggs and has entered into an agreement with A. D. Rob-
inson by which said Robinson is to erect or cause to be erected such
plant;

'Whereas the Employer desires to obtain the services of said
Blomberg;

'Now, therefore, the parties hereto agree as follows:

'Said Blomberg has agreed and hereby does agree to enter the
employ of said Employer and the Employer does hereby agree to
employ said Blomberg for a period of three years from the first day
of October, 1915, to the first day of October, 1918, at a salary of
$200 per month, payable on the last day of each and every month
during the continuance of this contract, upon the following terms
and conditions:

'Said Blomberg does hereby agree that he will sail from the United
States for China not later than October 1st, 1915, and that he will
go straightway to Hankow, China, and will there remain in the
employ of said Employer upon the terms hereof during the term
of this contract.

'Said Blomberg agrees to devote his entire time, attention and
energies to the best interests of said Employer and the International
Export Company in its business in China of manufacturing and deal-
ing in and with frozen, dried, dessicated and evaporated eggs and
in matters pertaining to the erection and construction of the aforesaid
contemplated plant in Hankow, China, and agrees that he will assist
in properly instructing said John Layton company's employees and the
employees of the International Export Company in the manufacture
of dried, dessicated, frozen and evaporated eggs, and will diligently
and conscientiously perform any other services which may be re-
quired of him by said Employer and those appointed over him, and
will obey the orders from time to time of said Employer and those
appointed over him during the term of his employment.

'Said Blomberg further agrees that he will in all respects conform
to and comply with the directions and regulations which may be
given and made by the Employer and shall well and faithfully serve
the Employer and use his utmost endeavors to promote the interests
of the Employer and shall not at any time during the whole period
of this contract or subsequently thereto divulge any secret or deal-
ing or communicate to any person or persons any information which
he may receive or obtain relating to the business of the Employer or
said International Export Company, but shall at all times inform
the Employer of all discoveries which he may make or information
which he may receive in any way likely to affect the Employer's
interest.

'It is the understanding of the parties hereto that the duties of
said Blomberg may require services either by night or day, and that
his agreement herein is to perform such services at all times as the
best interests of said Employer may dictate.

'Said Blomberg agrees that during the term of this contract he
shall perform all services in a thorough, competent and efficient man-

764 I EXTRATERRITORIAL CASES.

ner, and that during the term of employment he will be faithful to
the best interests of said Employer.

'Said Blomberg further agrees that he will not at any time during
the continuance of his employment be engaged directly or indirectly
in any business or occupation whatever other than the business of the
Employer or of said International Export Company.

'Said Blomberg further agrees that he will at no time without the
written consent of said Employer either in his own behalf or in be-
half of any person or company other than said Employer or said
International Export Company, enter into any business in China
in any way connected with or pertaining to eggs or poultry or any
kind of business transacted by or in behalf of the International Ex-
port Company and that he will not give out any information to any
one other than the Employer and said International Export Company
or the duly credited representatives of them or either of them in
respect of any branch of the egg or poultry business in China or
any other kinds of business transacted by the Employer or the In-
ternational Export Company.

'If the employee shall at any time wilfully neglect or refuse or
in any way prove himself dishonest or untrustworthy or from any
other cause shall not satisfactorily cany out his duties, of which
breach, incompetency, unsatisfactory conduct, insubordination or dis-
obedience tlvB Employer shall be the sole judge and whose decision
shall be binding and conclusive, the Employer shall be at liberty to
dismiss him and terminate this contract and pay to said employee
the portion of salary due to him for the time actually served up to
the date of his dismissal.'

"5. That after the execution of said contract and according to the
provisions thereof the said defendant entered into the employ of the
plaintiff and left the United States and came to Hankow, China;
that the defendant there remained in the employ of the plaintiff until
about the 20th day of October, 1916, when the plaintiff dismissed the
said defendant from its employ with just and sufficient cause as the
plaintiff had the right to do under the terms of said contract; that
the plaintiff provided the defendant with transportation from Han-
kow to the United States, and the said defendant left Hankow and
returned to the United States;

"6. That thereafter, to wit, during the month of February, 1918,
defendant returned to Hankow, China, and entered into the employ
of a certain firm, to wit, A. Grosjean & Co., without the written
consent of the plaintiff; that the said Grosjean & Company are
business rivals of the plaintiff company and the International Ex-
port Company, and are engaged in business in China connected with
and pertaining to eggs or poultry and other lines of business which
are transacted by or on behalf of the plaintiff and the International
Export Company;

"That the defendant is now and has been for some time past
superintending, or assisting in the superintendence of, the erection

JOHN LAYTON CO. V. BLOMBERG, JUNE 6, 1918. 765

of a plant at Hankow similar to the plant of the plaintiff and the
International Export Company located in Hankow;

"That such action on the part of the defendant in returning to
China and engaging in the employ of the said A. Grosjean & Com-
pany as above set forth was contrary to the provisions of the contract
made and entered into by and between the plaintiff and defendant
herein on the 9th day of June, 1915, which are above set forth; and
by so doing the defendant caused and is causing great and irrepa-
rable damage to the plaintiff."

The prayer is for an order restraining the respondent
from infringing the agreement above recited, and for dam-
ages.

11.

In addition to the general equity powers conferred upon
this Court ^ the legislation of Congress expressly authorizes
the granting of an injunction

"When it appears by the complaint that the plaintiff is entitled to
the relief demanded, and such relief, or any part thereof, consists
in restraining the commission or continuance of some act the com-
mission or continuance of which. during the litigation would produce
injury to the plaintiff; or when it appears by affidavit that the de-
fendant is doing, or threatens or is about to do, or is procuring or
suffering to be done, some act in violation of the plaintiff's rights
concerning the subject of the action, and tending to render the judg-
ment ineffectual." '

We are not, therefore, required to look beyond the aver-
ments of this verified bill in order to determine whether
the relief sought may be granted. Nor is it necessary
that notice be given the respondent altho in this case such
notice was given. The law requires, however, an under-
taking on the part of the complainant

"that he will pay all costs and disbursements that may be decreed
to the defendant, and such damages not exceeding an amount therein
specified, as he may sustain by reason of the injunction if the same
be wrongful or without sufficient cause." ^

The law considers this undertaking sufficient to protect
the respondent and as dispensing with the necessity of
notice.

' U. S. Rev. Stats., sec. 4086.

' Act of Congress of June 6, 1900, Sess. I, 31 U. S. Stats, at Large,
Ch. 786, Tit. II, sec. 386.
'Id., sec. 384.

766 1 EXTRATERRITORIAL CASES.

In examining the bill the first question which arises is
whether the agreement therein set forth is valid and en-
forcible. Contracts in restraint of trade were not favored
by the Common Law/ but the steady trend of decisions
has been away from this doctrine and in the direction of
allowing parties a greater latitude in making such contracts.
It is no longer the rule either in England or America that
a contract by which one party agrees not to engage in a
certain business for a limited time within even an extensive
area is void. Such a contract has been upheld as to the
whole of England,^ of Great Britain,*' of the United King-
dom," together with other countries,^ of an entire state," or
territory,^" or group of states,^^ including all but two,'- as
to the whole of the United States,^'' and even where there

'Mitchel V. Reynolds, 1 P. Wms., 181 (1711).

"The inhibition against restraints of trade at common law seems
at first to have had no exception. See language of Justice Hull,
Year Book, 2 Hen. V., folio 5, pi. 26." Taft, J., in U. S. v. Addyston
Pipe & Steel Co., 85 Fed., 271, 280.

'Jones V. Lees, 1 H. & N., 189.

"Whittaker v. Howe, 3 Beav., 383.

" Tallis V. Tallis, E. & B., 391, 22 L. J., 185.

'Underwood v. Barker, 1 Ch. Div. (1898-9), 300.

^Federal. Oregon Steam Navigation Co. v. Winsor, 20 Wall.
(U. S.), 64, 22 L. ed., 315.

Ohio. Paragon Oil Co. v. Hall, 7 O. C. C, 240, where, however,
the City of Cleveland was excepted.

Rhode Island. Herreshoff v. Boutineau, 17 R. I., 3, 19 Atl., 712,. 8
L. R. A., 469, 33 Am. St. Rep., 850.

"Godfrey v. Roessle, 5 Appeal Cases (D. C), 299.

''Federal. Davis v. A. Booth & Co., 131 Fed., 31; Fisheries Co.
V. Lennen, 116 Fed., 217; Harrison v. Glucose Sugar Refining Co.,
116 Fed., 304.

Iowa. Swigert v. Tilden, 121 Iowa, 650, 97 N. W., 82, 63 L. R. A.,
608.

'" New Jersey. Trenton Potteries Co. v. Oliphant, 58 N. J. Eq.,
507, 43 Atl., 723, 46 L. R. A., 255, 78 Am. St. Rep., 612.

New York. Diamond Match Co. v. Roeber, 106 N. Y., 473, 31 N.
E., 419, 60 Am. Rep., 464.

" Federal. National Enameling etc. Co. v. Haberman, 120 Fed.,
415.

Massachusetts. Anchor Electric Co. v. Hawkes, 171 Mass., 101, 105
N. E., 509, 41 L. R. A., 189, 46 Am. St. Rep., 408.

JOHN LAYTON CO. V. BLOMBERG, JUNE 6, 1918. 767

was no limit as to locality.^* The modern doctrine has been
well stated as follows:

"In the strife for commercial supremacy which the nations of
the world have now entered upon it would seem suicidal for this gov-
ernment, thru its judiciary, to lag one whit behind the marching
squadrons. In business transactions undeviating honesty is a prime
factor. If that factor is eliminated, or even suspected, the handicap
upon enterprise, advancement, and material progress will be serious,
if not intolerable. The parties made the contract in suit with pains-
taking care. Why should the defendant not occupy the position
into which he cramped himself by his own act? The answer, most
vociferously enunciated, is that the public will be the loser thereby.
Many ways in which it cannot lose have been adverted to. If there
is danger at all, is it not much less dangerous to lay down the hard
and fast rule that freedom of contract will always be sustained, pro-
vided such freedom is reasonably exercised? Freedom without that
exception degenerates into license. In any event, would the antic-
ipated harm be at all comparable to the enormous advantages which
must accrue when it shall have become for all time the settled law
that every man must abide by his bargain honestly made, when no
lingering smirch of guilty design or harmful purpose clings thereto?
It should not be so that a bargain which, upon every principle of
justice, equity, and decency ought to be rigidly enforced, shall in
any case be rejected because of some lingering respect for tradition." "

Under this doctrine, to which the Federal courts es-
pecially adhere, the bill before us appears to state a prima
facie case for preliminary relief. It seems clear, however,
that the contract relates primarily to Hankow for it is there
that respondent is required to remain during the term
thereof. Moreover, the breach complained of is alleged to
occur at Hankow and not elsewhere and it would appear to
be sufficiently remedied if respondent were prevented from
continuing in other employment at Hankow, tho the order

" England. Rousillon v. Rousillon, 14 Ch. D., 351 ; Nordenfelt v.
Maxim etc. Co., Ltd., A. C. (1894), 535.

Netv Hampshire. Bancroft v. Union Embossing Co., 72 N. H.,
402, 57 Atl., 97, 64 L. R. A., 298.

Ne%v York. Tode v. Gross, 127 N. Y., 480, 28 N. E., 469, 13 L. R.
A., 652, 24 Am. St. Rep., 475.

Rhode Island. Oakdale Mfg. Co. v. Garst, 18 R. I., 484, 28 Atl.,
973, 23 L. R. A., 639, 49 Am. St. Rep., 784.

'° Plartit, J., in National Enameling etc. Co. v. Haberman, 120 Fed.,
415, 421.

768 I EXTRATERRITORIAL CASES.

may be extended if conditions require. And where such
is the case and the contract is divisible it may be enforced
locally even tho the provisions as to a larger area are not
upheld.'"

The remedy sought is a proper one in such a case as
practically all of the foregoing authorities disclose. Dam-
ages v^ould be inadequate and prevention is merely a
negative method of specific performance.^"

It is therefore considered and decreed that upon com-
plainant's executing an undertaking as required by lav^^
in the sum of Tls. 25,000, a temporary injunction shall
issue and remain in force until a hearing can take place,
restraining the respondent from continuing in the employ
of any one in Hankow other than complainant and the
International Export Company whose business is in any
way connected with eggs or poultry or that conducted by
complainant and said International Export Company and
from giving out any information concerning said business.

IN THE UNITED STATES COURT FOR CHINA.

S. Heiman & Co., Plaintiff, v. The Barkley
Company, Inc., Defendant.

[Cause No. 643; filed June 13, 1918.]

SYLLABUS.
(By the Court.)

1. SALES: Place of Shipment in a contract of sale is, under the

Federal doctrine, a material requirement whose non-observance
entitles the vendee to rescind.

2. Id. : Advance Payment on such a contract may be recovered back

where it appears that the subject matter was shipped from
another than the required point of departure.

Messrs. Jeimigan, Fessenden & Rose, by Mr. Rose, for
plaintiff.

Messrs. Fleming & Davies, by Mr. Davies, for defendant.

"Oregon Steam Navigation Co. v. Winsor, 20 Wall. (U. S.), 64,
22 L. ed., 315.

" Lumley v. Wagner, 1 De G. McN. & G., 604.

S. HEIMAN & CO. V. BARKLEY CO., JUNE 13, 1918. 769
LOBINGIER, J.:

This is an action to recover back an advance payment
of Tls. 4,000 (20% of the purchase price) on a contract
for the purchase by plaintiff from defendant of hematine
crystals. The contract, executed November 5, 1917, is
evidenced by an instrument (Ex. "A") mainly a printed
form but with certain typewritten provisions inserted,
among which is the following: "Shipment during Novem-
ber from Pacific Coast," It is conceded that the goods
in question were not shipped "during November" nor "from
Pacific Coast" but were shipped from New York. The
invoice bears date February 2, 1918, and the undisputed
testimony is that plaintiff was advised on May 11 of the
arrival of the shipment in Shanghai whereupon it refused
to accept delivery and demanded back its advance payment.

The evidence and argument largely concern the question
of delay, whether it was necessitated by war conditions or
excused under certain printed clauses in the contract. We
have not, however, found it necessary to resolve these
questions because there is one requirement of the contract
which is not qualified by any printed clause to which our
attention is directed and which, under the doctrine pre-
vailing in this jurisdiction, must be treated as material
and imperative. This is the clause requiring "Shipment
* * * from Pacific Coast." In a very similar case ^
where the vendor had shipped from Leith instead of Glas-
gow, as the contract required, the Supreme Court reversed
a judgment in favor of the vendor and held the vendee
absolved, saying:

"The thing sold, and described in the contract, is '500 tons No. 1
Shott's (Scotch) pig iron,' to be shipped 'from Glasgow as soon as
possible.' It is not merely 500 tons of iron of a certain quality; nor
is it such iron to be shipped as soon as possible from any Scotch port
or ports; but it is iron of that quality to be shipped from the par-
ticular poz-t of 'Glasgow as soon as possible.' The court has neither
the means, nor the right, to determine why the parties in their con-
tract specified 'shipment from Glasgow,' instead of using the more
general phrase 'shipment from Scotland,' or merely 'shipment,' "with-
out naming any place; but is bound to give effect to the terms which

' Filley v. Pope, 115 U. S. 213, 29 L. ed. 372.

14008 O. W. 49

770 I EXTRATERRITORIAL CASES.

the parties have chosen for themselves. The term 'shipment from
Glasgow' defines an act to be done by the sellers at the outset, and
a condition precedent to any liability of the buyer. The sellers do
not undertake to obtain shipment, nor does the buyer agree to accept
iron shipped, at any other port. The buyer takes the risk of delay
in getting shipment from Glasgow, or of delay or disaster in pros-
ecuting the voyage from Glasgow to New Orleans. But he does not
take the risk of delay or of sea perils which may occur in the course
of the different voyage from Leith to the same destination."

In the case at bar the vendor was not limited, as in that
cited, to a single port of shipment; he was authorized to
ship from any port of the ''Pacific Coast." But under the
doctrine above stated he was not justified in shipping from
any other. A letter from defendant's home office received
in evidence (Ex. "H") states as a reason for the change
in the port of shipment that if the goods had been sent
"thru Pacific Coast ports they would likely have been
in transit from 90 days to 4 months, owing to the extreme
railway congestion." Defendant's counsel also states that
defendant's president if present would testify that "the
goods were not shipped from San Francisco owing to a
congestion in freight and conditions existing in the United
States at that time due to the war." In other words,
according to the vendor's view, shipment from New York
would have brought the goods earlier than shipment from
the "Pacific Coast" as required by the contract. But in
the case above cited the cargo not only could, but actually
did, arrive earlier from Leith than it could have arrived
from Glasgow and the Supreme Court nevertheless allowed
the vendee to rescind. We need not, therefore, stop to
determine the admissibility of plaintiff's evidence that de-
fendant's president said before the contract was made that
the cargo was already on the Pacific Coast and that the
contract was entered into, on the strength of that state-
ment, for a higher price than he would have paid for goods
located elsewhere. For having inserted into the contract
an unqualified requirement that shipment should be "from
Pacific Coast" the vendee is entitled, under the rule above
stated, to its enforcement. Of course, a showing that ship-
ment "from Pacific Coast" was impossible might afford a
valid defence to this action or at least to one for damages

IN RE MARTIN'S WILL, JUNE 19, 1918. 771

for non-performance, but such a showing is not made. The
letter above quoted assumes as we have seen that shipment
"from Pacific Coast" vi^as possible, even if slower, and
evidence (Ex. "M" to "S") is offered by plaintiff of other
shipments from that region during the period in question.

We need not, therefore, stop to determine the effect of
delay upon this contract nor to decide whether, if the goods
had been shipped "from Pacific Coast," plaintiff would
have been justified in rejecting them. The conceded failure
to observe the requirement as to the place of shipment is,
under the doctrine which we are bound to follow, a mate-
rial one and entitles the plaintiff to rescind. -

It is accordingly considered and adjudged that plaintiff
have and recover from defendant the said advance payment
of Tls. 4,000 with interest thereon at 6% per annum from
March 6, 1918, the date of filing the petition, together with
costs.

IN THE UNITED STATES COURT FOR CHINA.
In re W. A. P. Martin's Will.

[Cause No. 562; filed June 19, 1918.1

SYLLABUS.

(By the Court.)

I.WILLS: Codicils; Construction. A will and its codicils are to
be construed +o^ether as one instrument.

2. Id. : Where the provisions of one of such instruments conflict with

those of another, the latest prevail.

3. Id. : Republication. The latest codicil effects a republication of

preceding ones as well as of the original will.

4. Id. : While the requirements of a codicil as to attestation are the

same as those of a will, a codicil defective in that regard may
be validated by a subsequent one.

5. Id. : Rule Applied. A will with various codicils, of which some

were insufficiently attested, construed with the aid of the latest
codicil and execution of the testator's intent, thus ascertained,
directed.

Messrs. Jernigan, Fessenden & Rose, for the executors
and proponent.

'Norrington v. Wright, 115 U. S., 188, 29 L. ed., 366; cf. Dieder-
ichsen & Co. v. Connell Bros. Co., ante, pp. 297, 333.

772 I EXTRATERRITORIAL CASES.

LX)BINGIER, J.:

This cause comes on for hearing upon the petition of the
executors of the Last Will and Testament of Dr. William
A. P. Martin, the veteran missionary who died at Peking
on December 17, 1916, after sixty-six years of service in
China. Proof of publication of notice to creditors was
duly filed and the executors' final account shows the
payment of all claims presented. The petition now before
us asks for approval of said accounts, the barring of
further claims, the compensation of themselves and their
attorneys, and final distribution of the assets "according
to the provisions" of the will. The last item calls for a
construction of the original instrument which was ex-
ecuted on June 14, 1905, together with its various ap-
pendages, all of which appear to have been not only signed
but written by the testator himself, and are successively
indicated as follows:

October 23, 1907, (Ex. B) "Codicil," one witness.
November 2, 1907, "Addendum," one witness.

January 1, 1908, an unwitnessed memorandum in the testator's
handwriting.

January 31, 1908, one witness.

October 24, 1913, one witness.

May 4, 1914, (Ex. C) "Disposal of Literary Pi'operty," one witness.

January 25, 1915, "Postscript," one witness.

March 15, 1915, no witness.

December 16, 1915, (Ex. E) "Codicil," two witnesses.

Under the Act of Congress of March 3, 1901,

"all devises and bequests shall remain and continue in force
* * * unless the same shall be altered or revoked by some other
will, testament or codicil in writing, or other writing of the testator
signed in the presence of at least two witnesses attesting the same,
any former law or usage to the contrary notwithstanding." ^

Prima facie this would seem to invalidate all of the fore-
going supplementary instruments which were not attested
by two witnesses. But the rule is that a duly executed

'31 U. S. Stats, at Large, sess. II, Part 1, Ch. 854, (D. C. Code),
sec. 1626.

IN RE MARTIN'S WILL, JUNE 19, 1918. 773

codicil effects a republication of the original will - and,
according to the weight of authority,^ of all intermediate
codicils. Moreover, most if not all of these instruments
appear to be holographic and where such is the case the
requirements of attestation are not imperative.* All of
these instruments must, therefore, be construed together,^
but in case of conflict the latest codicil (here Ex. E) con-
trols.® With these principles in mind we may now proceed
to ascertain the testator's intent.

II.

The second clause of the original will (Ex. A) divides
the entire property between the testator's two sons, W. R.
and Newell Martin, subject to certain bequests. But the
last codicil (Ex. E) names Newell Martin as the sole
residuary legatee, it appearing that the other son, W. R.
Martin, had meanwhile died. But the residuary legatee's
rights are subject to the following bequests:

1. A third son, Claude V. Martin, is provided for by a
"yearly allowance" of $600, United States currency, and a
devise of four lots in Seattle. This provision is contained
in the original will (Ex. A) , mentioned in the "Addendum,"
and confirmed in the last codicil (Ex. E).

2. The codicil of October 23, 1907 (Ex. B), recites that:

"In addition to payments provided for in the will, one thousand
two hundred dollars Mex. are to be paid annually to the Presbyterian
Mission in Peking for scholarships, or other uses in Truth Hall, the
Mission High School,"

An holographic instrument bearing the date January 1,
1908, contains the following memorandum :

"$1,000 Mex. to be paid yearly from the income of the East Gate

property to the Presbyterian High School Truth Hall, in Peking."

. J

MO Cyc, 1216, notes 10, 14; Woerner, American Law of Ad-
ministration, I, 86, note 3.

" Redfield on Wills, I, 289,* notes 9 and 10.
'40 Cyc, 1130, note 12; 1132, note 42.
"40 Cyc, 1421, notes 65, 66, 67 and 70.
"Id., 1219, note 32; 1422, note 72.

774 I EXTRATERRITORIAL CASES.

The instrument of January 31, 1908, indorsed on the
same sheet (Ex. B) as the codicil mentioned in the first
paragraph under this subdivision, recites:

"I wish the annuity * to the High School 'Truth Hall' to be paid
from the income of the East Gate property, Shanghai, to be used in
aid of indigent students or to support or aid students engaged in
evangelistic work, or theological studies."

"* amounting to one thousand dollars Mex."

Upon a sheet attached to the original instrument
(Ex. A) appears the following recital:

"I here renew a provision of one thousand dollars Mex. to be paid
from my East Gate property in Shanghai for the support of students
in Truth Hall Academy by my heirs aforesaid."

The annuity is expressly confirmed in the last codicil
(Ex. E) which charges the executors

"to see to it that provision is made, in any event, for the annual
payments heretofore directed by me for the benefit of Truth Hall,
or of scholarships in Truth Hall, or for scholarships in Truth Hall."

This last, however, does not specify the amount, which,
it will be seen, was originally fixed at $1,200 but would
appear to be reduced by the later instruments to $1,000.
Recognizing, however, that this was probably an inad-
vertence due to a failure at the time to refer to the original
memorandum, the residuary legatee, according to the
executor's testimony, has generously waived his right to
the $200 and asked that the annuity as originally fixed be
allowed. An instrument is also on file, signed by the
Chairman of the Presbyterian Mission which maintains the
said "Truth Hall," authorizing its principal. Rev. W. H.
Gleysteen, to receive the said annuity.

The "East Gate property" from the income of which this
annuity is to be paid appears (Ex. G) to have been pur-
chased by the testator as long ago as June 9, 1863, with
money borrowed from one Chang Szekwei. The instru-
ment recites that in lieu of interest on the loan the prop-
erty "shall be divided into two equal parts; and the
northern half be given to Chang Szekwei, to hold and pos-
sess." Sons of the last named were called as witnesses and
testified that they had inherited one-half of this property

IN RE MARTIN'S WILL, JUNE 19, 1918. 775

from Chang Szekwei and had received one-half of the
income for some forty years, the testator receiving the
other half. The latter further recognizes the arrangement
in an autographic memorandum dated January 1, 1908
(Ex. H), reciting:

"I advise that the East Gate Property be not divided unless in-
sisted on by the Chang Family, but that it continue in the name of
my heirs."

In 1910 a formal agreement (Ex. F) was executed by
and between different members of the Chang Family de-
fining their respective shares. It seems clear from all this
that the residuary legatee under this will takes only an
undivided half interest in the East Gate property; and
that until actual division is made he, like his co-tenants,
is entitled to but one-half of the income.

3. The "Addendum" of November 2, 1907, provides:

"My servant Pai and my writer Chao, the latter an old student
of mine shall, if with me to the end, receive each two hundred dollars
Mex."

Another instrument (indorsement on Ex. H) recites:

"My head servant Pai-oh and my writer Chao Shouhong, if with
me until my decease are each to receive $300 Mex."

The memorandum of January 25, 1915 (indorsed on the
back of Ex. D), recites:

"My servant Pai and my writer Chao in the case provided for
shall each receive four hundred dollars Mex. (instead of two hun-
dred)."

The deposition of one of the executors, Rev. C. L. Ogilvie,
filed on June 14, 1918, shows that these two Chinese did
remain with the testator "to the end" and, therefore, com-
plied with the conditions of this bequest.

4. The instrument of May 4 (Ex. C), recites:

"Dr. A. H. Smith having consented to edit my autobiography — in-
cluding Cycle of Cathay — I request him to act in all respects as my
literary executor. He is to have such of my mss. as he may require
and to make such arrangements with Revells, or other publishers
as to him seems good.

"The profits of said biography, if any, are to accrue solely to Dr.
Smith, as some compensation for his time and labor.

776 I EXTRATERRITORIAL CASES.

"For the fraternal interest which he has taken in this labor of
love I hereby express my gratitude and I trust it will promote the
glory of God and advance the cause of missions."

5. The "Postscript" (Ex. D) provides:

"My few books to be divided by three ladies to whom I am greatly
indebted for the comfort of my last years, viz., Mrs. Cunningham,
Mrs. Johnson and Mrs. Ogilvie. Each will claim her own furniture,
which I have had in use."

These three last bequests (3, 4, and 5) appear to be
confirmed in that clause of the last codicil (Ex. E)
providing "for the unrevoked legacies and bequests here-
tofore made by me to persons other than my sons."

A bequest to the son of a nephew, provided in clause 3
of the original instrument (Ex. A), is expressly revoked
by the indorsement of March 13, 1915, on the "Postscript"
(Ex. D).

The preceding indorsement on said instrument also
provides that:

"In case a son of C. V. Martin (testator's son) should come for-
ward as a claimant, he shall receive one dollar Mex. and no more."

The executor's testimony is that no such claimant has
appeared and the item need not further be considered.

III.

The allowances to the executors and their attorneys have
been fixed by an arrangement with the residuary legatee
who, since there are no unpaid creditors, is the only party
concerned. He agrees to an award of Tls. 5,000 to the
executors and of Tls. 1,500 to the attorneys. By mutual
arrangement between themselves the executors have divided
their fee in the proportion of Tls. 3,500 to Mr. A. C. Davis
and Tls. 1,500 to Rev. C. L. Ogilvie.

It is accordingly considered and decreed:

1. That the executors' final accounts of December 31, 1917, and
February 14, 1918, be and the same are hereby approved.

2. And it appearing that all of the claims presented within six
months from the publication of notice to creditors have been paid,
all other claims are hereby forever barred.

IN RE MARTIN'S WILL, JUNE 19, 1918. 777

3. After paying the costs of this proceeding the exeeutors are
authorized, according to the wish of the legatee, to deduct for them-
selves the sum of Tls. 5,000, Mr. Davis taking Tls. 3,500 and Mr.
Ogilvie Tls. 1,500, and to pay their attorneys Messrs. Jernigan, Fes-
sienden & Rose in full for their services the sum of Tls. 1,500.

4. The executors are thereupon directed:

(a) To take such steps as may be required of them to vest in the
testator's son Claude V. Martin all right, title and interest in and
to the "four lots in Seattle" above mentioned and discussed in be-
quest (1) ;

(6) To distribute to the testator's sei'vant "Pai" and his writer
"Chao" the sum of Mex. $400 each;

(c) To deliver to Dr. A. H. Smith all manuscripts needed in order
to carry out his commission to edit the testator's autobiography, and
to render all needful assistance to said editor in publishing the same
and realizing the profits thereof;

(d) To distribute to the three ladies mentioned in the "Postscript"
(Ex. D) the testator's books. In case there should not be an agree-
ment among the three as to the basis of division the executors are
authorized to report that fact to the Court for further order;

(e) To distribute to the residuary legatee, Newell Martin, and
to take all necessary steps to vest in him title and possession in and
to the residue of the estate subject to a charge thereon of an annuity
of $600, United States Currency, to the testator's other son, Claude
V. Martin.

The testator's undivided half-interest in the property referred to in
the will as the "East Gate Property" and more particularly described
as "No. 157 and No. 158 of the American Consulate Registry at
Shanghai," the other undivided half interest in which is found to be
vested in the heirs and executors of Chang Szekwei, is further sub-
ject to a charge of Mex. $1,200 annually in favor of the institution
known as "Truth Hall" which annuity may be paid by the legatee
to the Rev. W. H. Gleysteen, principal thereof. Should either of
the aforesaid legatees (Claude V. Martin or Truth Hall) require a
bond from the said residuary legatee for the execution of said trusts
and the payment of said annuities, such bond may be required upon
application to the Court before final distribution.

(/) Upon filing with the Clerk of this Court proper receipts from
each of the beneficiaries and legatees above named for his or her
appropriate share in said estate and of a statement from each of
the special legatees, Claude V. Martin and "Truth Hall," thru its
principal Rev. W. H. Gleysteen, of a waiver of the execution of the
bond mentioned in the preceding paragraph, the executors shall stand
discharged of all liability hereafter arising, any collateral security
furnished by them in lieu of or in connection with their bonds may be
returned to them and the estate shall be considered closed.

778 I EXTRATERRITORIAL CASES.

IN THE UNITED STATES COURT FOR CHINA.

J. Spunt & Co., Plaintiff, v. American Machinery &
Export Co., Defendant.

[Cause No. 652; filed September 5, 1918.]

SYLLABUS.

(By the Court.)

1. CARRIERS: CHARGES: Election. Where a bill of lading makes

freight charges "payable on weight or measurement received
or delivered at carrier's option" the latter must elect whether
to charge by "weight or measurement."

2. Id.: What Constitutes. Rendering a bill computed on the meas-

urement basis, accepting payment thereof and marking the
bill of lading "freight paid" constitute an election to charge
according to such basis.

3. Id. : Revocation. Such an election cannot be revoked except upon

recognized grounds like fraud, mistake, etc.

4. Id. : Bills of Lading: Correction. A clause in the margin of a

bill of lading which reads "rates, weight or measurement sub-
ject to correction" covers mistakes but does not entitle the
carrier to revoke an election as between two standards of charge.

5. Id. : Custom. The provisions of a contract cannot be nullified by

proof of local custom or usage.

Messrs. Alleyi & Lucker, by Mr. Lucker, for plaintiff.
Richard T. Evans, Esq., for defendant.

LOBINGIER, J.:

This is an action by a shipper to recover from a marine
carrier money demanded by the latter as a condition to
the delivery of cargo, and paid by the former, as it
alleges, under protest. The following averments of the
petition are expressly admitted by the answer :

"5. On the 1st day of March, 1917, defendant sent plaintiff debit
memo:

To freight to San Francisco on 500 bales Raw Cotton

4,917 ft. at G$21 per ton 40 cu. ft. G$2,581.43 at 86^ Tls. 2,957.71

and on the 3rd day of March, 1917, other debit memos:

To freight to San Francisco on 394 bales Raw Cotton

3,874 ft. at G$21 per ton 40 cu. ft. G$2,033.85 at 86!^ Tls. 2,344.50

and

To freight to -San Francisco on 208 bales Raw Cotton
2,045 ft. at G$21 per ton 40 cu. ft. G$l,073.63 at 863 Tls. 1,237.61

J. SPUNT & CO. V. AM. M. & E. CO., SEPT. 5, 1918. 779

which sums plaintiff duly paid to defendant, the defendant there-
upon receipting said debit memos.

6. On the 12th day of March, 1917, after the said s. s. Nippo Maru
had departed on her voyage to San Francisco defendant sent plaintiff
other debit memos figuring the freight rate on a weight basis of
G$21 per 2,000 lbs. and demanding from plaintiff an additional sum
of Tls. 654.31 which sum plaintiff refused to pay.

7. On arrival of said s. s. Nippo Maru at San Francisco defendant
refused to deliver said cargo without first receiving the sum of
G$639 additional freight."

Each of the three bills of lading bears date February
27, 1918, and is marked "Freight Paid," which notation,
it is not denied, was made by defendant. In the latter's
brief it is claimed (p. 3) :

"The amount due was not the amount of freight on a measurement
or weight basis as defendant might choose * * *; it was the
amount which was most to the benefit of the ship."

But each bill of lading provides (Clause 9) :

"Freight is payable on weight or ')neasurement received or delivered
at carrier's option.

By this we understand that defendant had an election
to charge on a weight basis or on a measurement basis
but that it was obliged to elect the one or the other; and
such an election need not have been express.

"An election may also be implied — that is, inferred — from the con-
duct of the party, his acts, omissions, modes of dealing with other
property, acceptance of rents and profits, and the like." '

A party entitled to payment for his labor in either a
certain rate gold or a certain rate other currency was held
to have exercised his election by presenting bills for a par-
ticular rate.-

Here defendant sent its freight bills computed on a
measurement basis, accepted payment accordingly and
marked the bills of lading "Freight paid," and this, we
think, constituted at least an implied election of the
measurement basis. Indeed there is ample authority ^ for

' Pomeroy, Equity Jurisprudence (3d ed.), I, p. 853.
' Stephens v. Howe, 34 N. Y. Super. Ct., 138.

' Cyc. XXX, 1219 and cases cited in note 82; Bishop, Contracts,
sec. 786.

780 I EXTRATERRITORIAL CASES.

the proposition that "the right of election does not exist
after the daj^ when the payment becomes due." This
applies to one who has an option as to the form of making
payment and we see no reason why it should not be
equally applicable to one, like defendant, whose option
relates to the basis of requiring payment. Under clause
8 of the bills of lading "Freight is payable in advance
" * * or on delivery * * * ^^ carrier's option."
Defendant having sent bills and accepted payment "in
advance" evidently exercised the option of rendering the
freight so payable and under the rule last above quoted
the right of election ceased. At any rate it is elementary
that such an election once exercised is final except for
grounds which do not exist here. As observed in a work *
above cited:

"Where an election is once made by the party bound to elect,
either expressly or inferred from his conduct, it binds not only him-
self, but also those parties who claim under him."

"Whenever, by law or by contract, a party has laid before him
a variety of steps, the taking of one of which excludes another or
the rest he must choose between them. After his choice is made,
and by words or by acts expressed in a manner suited to the par-
ticular case, he cannot reverse it; he is said to have elected the one
step and waived the other." °

11.

Defendant alleges:

"that the Bill of Lading in question bore in plain type the statement
'Rates, Weight or Measurement Subject to Correction,' " and "that
by virtue of the above mentioned clause or otherwise it is the usage
in the trade between Tientsin and America to retain a lien on cargo
until all charges which might have been levied at the time the bill of
lading was issued, if levied at a later time but before delivery of
cargo, are paid, and that this usage was known to the defendant,
and was by him impliedly admitted to control his rights in the case
In dispute."

We are disposed to agree with plaintiff's counsel that
"correction presupposes a mistake in fact; otherwise there
is nothing to correct." But defendant nowhere claims

■* Pomeroy, Equity Jurisprudence (3d ed.), I, 856.
'Bishop, Contracts, sec. 808. Cf. Am. & Eng. Encyc. of Law (Ist
ed.), 254.

J. SPUNT & CO. V. AM. M. & E. CO., SEPT. 5, 1918. 781

to have made a mistake in computing its original charge.
Indeed its brief declares (p. 3) :

"There was no uncertainty at any time as to the amount due."

Clearly then there was no occasion for correction.
Moreover, defendant's manager testifies as the sole reason
for demanding the additional amount here in controversy
that "the weight basis figured out to the advantage of the
company." But surely this might have been ascertained
before the freight bills were sent and payment accepted,
and failure to have done so affords no ground for revoking
the election actually made. The marginal clause invoked
by defendant was evidently intended to provide a remedy
for errors in "rates, weight or measurement" but not to
enable it, on an afterthought, to increase its charge where
no such error had occurred.

Nor does there seem to be any room here for applying
the rule that a bill of lading may be contradicted and
shown to be erroneous. Defendant did not attempt to
prove that the notation "freight paid" was false; all it
claimed was that after such notation had been made and
payment accepted thereunder, it sought additional pay-
ment by reason of a new computation upon a different basis.

We are unable to find that defendant has proved the
last averment above quoted. The testimony fails to estab-
lish a general custom such as is there alleged; the wit-
nesses who were called spoke principally of what they would
do under certain circumstances and were notably lacking
in concrete examples. But even had such a custom been
proved it could not override the plain provisions of law
and contract by which defendant was given the option
which it exercised.

"A custom or usage which is repugnant to the terms of an express
contract is not permitted to operate against it, and evidence of it is
inadmissible; for while usage may be admissible to explain what is
doubtful it is never admissible to contradict what is plain." "

We must find that defendant was not entitled to de-
mand the additional payment of $639 and as there is no

•Cyc, XII, 1091, 1092.

782 I EXTRATERRITORIAL CASES.

claim that it was a voluntary payment but, on the con-
trary, it having admittedly been made solely to obtain the
delivery of cargo whose freight charges had already been
paid, plaintiff is entitled to recover it back. Had the
petition prayed for interest it likewise would be awarded
but the prayer is limited to the amount and costs, there
being not even a prayer for general relief.

It is accordingly considered and adjudged that plain-
tiff have and recover from defendant the said sum of $639
United States currency, together with its costs.

IN THE UNITED STATES COURT FOR CHINA.
United States v. Marciano Osete.

[Cause No. 687; filed September 19, 1918.]

SYLLABUS.
(By the Court.)

EVIDENCE: RuLE OF REASONABLE DouBT APPLIED. Where the ac-
cused was only one of numerous parties having access to a trunk
containing money which he is charged with having stolen, and
where he is able to show another possible source of the price
of rings purchased the day after, it cannot be said, in the
absence of other evidence, that he is proven guilty beyond a
reasonable doubt.

R. T. Bryan, Jr., Esq., Special U. S. Atty., for the
prosecution.

Dr. H. C. Met, for defense.

LOBINGIER, J..*

The accused is charged with the larceny of $50 which
the complaining witness claims to have placed in his trunk
on the morning of September 3. Returning in the evening
at about 6:10 he says that he found his trunk "bent"
and his money gone. The two occupied the same house
but not, according to the accused at least, the same room.
At any rate the room in which the trunk was kept was
not locked. Four other Filipinos occupied rooms in the
same house and that of the complaining witness was
accessible to the others as well as to the Chinese cook
and house boy. Indeed, it appears that the outside door

UNITED STATES V. OSETE, SEPT. 19, 1918. 783

was unlocked and that the room might have been entered
by some one coming from the street. These facts make the
defense even stronger than one in which another accused
was acquitted of a similar charge.^

The circumstances (for there is no direct evidence)
chiefly relied upon by the prosecution are that the accused
purchased two rings on the morning after the money was
missed at a price not exceeding $36 and that previously
he had been short of money. He presents a detailed
statement, however, of his income and expenses from the
time of his arrival in Shanghai at the end of June, which,
if it is to be accepted, would explain the source of the
purchase price of the rings especially since, according to
the testimony of the detective, it was only $34. It is true
that this statement allowed the accused very little for
spending money and barely provided for ordinary neces-
sities; but we do not find that the prosecution succeeded
in showing any considerable other expenditure and what-
ever the accused is shown to have borrowed appears to
have been repaid.

There are certain unfavorable circumstances, like de-
fendant's attempt to secrete the rings when arrested,
which, however, he explains by saying that he feared they
would be taken from him at the police station.

On the other hand, there are some favorable circum-
stances. It is conceded that he did not attempt to escape
even tho he had opportunity and that he waited at his
former place of employment until the secret service agent
should come to arrest him. He admitted that he had
but $2.50 on arriving in Shanghai when it would have
strengthened his story to have claimed more. Then he
refers, unnecessarily, to a certain difl!iculty in the Philip-
pines which, however, has no bearing on the present case.

"It is true that the commission of crime may be proven by cir-
cumstantial evidence. In such cases, however, the circumstances
must be just as convincing as vi^hen the proof is direct and positive.
The circumstances must be such as to lead the mind of the judge
irresistibly to but one conclusion, namely, the guilt of the person
charged. So long as the acts of the accused and the circumstances

' U. S. v. Reyes, 3 Phil., 3.

784 I EXTRATERRITORIAL CASES.

can be explained upon any other reasonable hypothesis, inconsistent
with his guilt, he must be acquitted." "

We cannot say from the evidence before us that it is
not a reasonable hypothesis that the accused had sufficient
money to buy these rings without having stolen it. There
are circumstances which may seem suspicious but we can-
not convict him on suspicion. Giving him, as we must,
the benefit of a reasonable doubt he is hereby acquitted
with costs de officio.

IN THE UNITED STATES COURT FOR CHINA.
United States v. Jose A. Diaz.

[Causes Nos. 678, 679; filed September 27, 1918.]

SYLLABUS.
(By the Court.)

1. EVIDENCE: MARRIAGE of a defendant in a criminal cause may be

proved by his own admissions.

2. Id.: Adultery found sufficiently proved in one case but not in the

other.

3. STATUTES: APPLICABILITY: Where a general Act of Congress, like

the Federal Penal Code, is applicable it will be applied in
preference to an act intended for a particular locality.

R. T. Bryan, Jr., Esq., Special Assistant U. S. Dist. Atty.,
for the prosecution.

M. L. Heen, Esq., for the defence.

LOBINGIER, J.:

The information in cause No. 678 charges that the de-
fendant

"did between the 15th day of February, 1917, and the 17th day of
June, 1918, live as man and wife, with one * * =i.^ being at the
time married to one * * *^ and did during the times aforesaid, at
various times, commit adultery with the said * * * and thereby
was and is guilty of the crime of adultery, against the laws of the
United States."

The information in cause No. 679 is similar except that
the name of the woman and the dates are different.

It is admitted by the defendant that he did live with the

' Id., 5. Cf. U. S. V. Martin, ante, p. 549.

UNITED STATES V. DIAZ, SEPT. 27, 1918. 785

woman named in the first information during the period
there specified and the sole question is whether the proof
of defendant's marriage is sufficient. For it is not claimed
that the woman is married and unless defendant is, the
acts charged fail to constitute that particular crime. ^

The evidence of defendant's marriage consists of the cer-
tificate (Ex. "I") of his registration at the American Con-
sulate-General which cites that:

"He is married to * * *, who was born in Alcala, Pangasinan,
Philippine Islands."

Following this is a list of children, five in all.

Defendant's counsel contends that this certificate is not
sufficient evidence of marriage because the facts recited
were not \vithin the official cognizance of the one who made
the certificate. Whether, standing alone, the certificate
would suffice we need not stop to determine for the vice-
consul who prepared the certificate testified that the accused
made oath that the information contained in the certificate
was true, and this statement is corroborated by the accused
himself. Moreover, at the bottom of the original certificate
appears a signature purporting to be, and which the cer-
tificate recites is, that of the accused. We consider this
quite sufficient to constitute an admission of marriage on
the part of the accused. Indeed, it was unnecessary for that
purpose that the accused should have made the oath and
subscribed his signature; if he had simply told the vice-
consul or any one else that he was married such a statement
would by the great weight of authority - have been compe-
tent evidence against him and, in the absence of contrary
proof, would have been accepted as sufficient. There is no
attempt at contrary proof here. The defendant did not
even take the stand in his own behalf in these cases. We
must, therefore, find that the fact of marriage is proved by
defendant's admission. In cause No. 679 it is conceded by
the prosecution that the evidence is not sufficient to convict,
but in cause No. 678 we must find him guilty as charged.

There are several acts of Congress relating to the crime

'Federal Penal Code, 316; Corpus Juris, XI, 14.
' Corpus Juris, XI, 27, note 44,

14008 O. W. 50

786 I EXTRATERRITORIAL CASES.

of adultery and imposing different penalties, but as the
Federal Penal Code is applicable we apply it in preference
to any special law. The maximum penalty fixed by said
code ^ is three years but as the accused has already been in-
carcerated for nearly two months, he is hereby sentenced
to nine months of imprisonment to be served in the Amer-
ican Prison at Shanghai until he can be transferred to Bili-
bid Prison, Manila, territory of the Philippines, where the
remainder of the said sentence shall be served. He is fur-
ther adjudged to pay the costs of this prosecution.

IN THE UNITED STATES COURT FOR CHINA.

United States v. Charles August Krausch alias
Charles Nelson.

[Cause No. 676; filed October 1, 1918.]

SYLLABUS,

(By the Court.)

CRIMINAL PROCEDURE: "STATE'S EVIDENCE:" REDUCTION OF PENALTY.
A recommendation of clemency by the prosecutor because the
accused has turned "state's evidence" w^ill ordinarily be adopted.

Earl B. Rose, Esq., Acting U. S. Dist. Atty., for the pros-
ecution.
H. D. Rodger, Esq., for the defense.

LOBINGIER, J.:

The accused pleads guilty to an information charging
him with participation in the crime of armed robbery,
the maximum penalty for which (there being no specified
minimum) is fifteen years of imprisonment.^

The accused appears to have no previous criminal record
and his participation in this offence appears to have been
brought about in part at least by the fact of his German
name which, tho he is American born, prevented his obtain-
ing employment. On this ground and also because he
assisted materially in furnishing evidence for the convic-
tion of his fellow offenders the prosecution recommends

a moderate sentence. Such a recommendation would seem

'Federal Penal Code, sec. 316.
' Id., sec. 284.

UNITED STATES V. DIAZ, OCT. 4, 1918. 787

proper for consideration by the Court in view of the fact
that it has long been the practice for the prosecuting
officer to grant immunity where an accomplice in a crime
becomes what is known as "state's evidence." ^

The Court, therefore, finds the accused guilty as charged
but with extenuating circumstances, and sentences him to
two years of imprisonment to be served in Bilibid Pris-
on, Manila, territory of the Philippines, unless duly
transferred elsewhere, and to pay the costs of this pros-
ecution.

IN THE UNITED STATES COURT FOR CHINA.
United States v. Jose A. Diaz.

[Cause No. 677; filed October 4, 1918.]

SYLLABUS.
(By the Court.)

PERJURY: EVIDENCE. A chai-ge that the accused did "swear that
a certain passport was issued in his name and for him" is
not supported by evidence that he merely delivered an altered
passport to an official without any statement, sworn or otherwise,
as to the name in which it was issued nor for whom.

R. T. Bryan, Jr., Esq., Assistant Special U. S. Dist. Atty.,
for the prosecution.
M, L. Heen, Esq., for defense.

LOBINGIER, J.:

The information in this cause charges that the accused:

"on or about the 18th day of October, 1916, at the American
Consulate-General at Shanghai, China, did feloniously on his exam-
ination as an affiant, before an American Consular official, duly sworn
to testify to the truth, in matters relating to his registration as an
American citizen, which Consular official had the authority to ad-
minister the said oath, swear that Philippine passport No. 4871
was issued in his name and for him when in truth and in fact
the said passport was issued in the name of one Raymundo Conni,
the name of said Raymundo Conni having been erased by him, the
said Jose Ampil Diaz, and his own name put in place thereof, the

^ Bishop, New Criminal Procedure, II, sec. 1161.

788 I EXTRATERRITORIAL CASES.

matters so testified to being material to his registration as an Amer-
ican citizen, and the testimony given being willfully false."

The evidence discloses that the accused did appear at
the Shanghai Consulate-General and present the passport
in question which, as found in another cause (No. 689),
had been altered by him. It does not appear that any
specific questions were asked him regarding the passport.
It seems to have been accepted as genuine and while the pres-
entation of it in its altered form was doubtless an act of de-
ception on the part of the accused we find no evidence in
support of averment that he did "swear that Philippine
passport No. 4871 was issued in his name and for him."
To swear in legal parlance is "to take an oath before an
ofl?icer" ^ that a specific assertion is true. We cannot see
how one can be said to "swear" to the genuineness of a
passport by merely delivering it, and no authority is cited
for such a contention. Doubtless the act of delivery under
the circumstances implied genuineness but it did not con-
stitute swearing thereto. It may be also that such act was
as morally reprehensible as an oath would have been but
the accused is charged with having sivorn to a particular
fact and that charge is not supported by showing that he
did something else tho it may have been equally wrong.

It is unnecessary to construe the language of the statute
under which the information is brought for the latter must
control and would not be aided by the language of the stat-
ute even if it were broader.

There being no evidence to support the specific charge
the accused is acquitted with costs de officio.

IN THE UNITED STATES COURT FOR CHINA.
United States v. Jose A. Diaz.

[Causes Nos. 680, 681; filed October 4, 1918.]

SYLLABUS.
(By the Court.)

1. ASSAULT : Grades. As defined in the Federal Penal Code (sec.
217) assault consists of two grades, one of the distinctions
between which is the "intent to do bodily harm."

* Anderson's Law Dictionary, ad verbum.

UNITED STATES V. DIAZ, OCT. 4, 1918. 789

2. Id. : Intent. An accused cannot be convicted of the more serious
grade where the information fails to charge such intent.

R. T. Bryan, Jr., Esq., Assistant Special U. S. Dist. Atty.,
for the prosecution.

M. L. Heen, Esq., for defense.

LOBINGIER, J.:

The information in cause No. 680 charges that the ac-
cused

"on or about the 27th day of March, 1918, at BC 53-54 Range
Road, Shanghai, China, did without just cause or excuse, with intent
to do bodily harm, assault one * * * by throwing poison in her
face, causing her great bodily harm, and thereby was and is guilty
of the crime of felonious assault, against the laws of the United
States of America (Federal Penal Code of 1910, sec. 276)."

In cause No. 681 the information charges that he

"on or about the 15th day of April, 1918, at BC 53-54 Range
Road, Shanghai, China, did unlawfully strike, beat, wound, and kick
one * * * causing her great bodily harm and injury, and there-
by was and is guilty of the crime of felonious assault, against the
laws of the United States of America (Federal Penal Code of 1910,
sec. 276)."

The accused and the complaining witness were living
together, tho unmarried, at the time of these alleged oc-
currences and continued so to live until the latter part of
June of the same year. The complaining witness, however,
is the only one who testifies to the occurrence alleged in the
first information and there is no corroboration, except the
affirmative answer of a Chinese witness (Kong Woo) to the
very suggestive question —

Do you or do you not remember ever having helped * * * wash
some poison off her face?

There is no explanation as to how he knew it was poison
or why he should be called to remove it. The defendant
admits that he had prepared a poisonous mixture but claims
that it was for use in his professional work as a physician,
that the complaining witness had taken possession of it with-
out his knowledge and was about to swallow it and that in
taking it from her some of it was accidentally spilled upon
her person. This explanation may not seem very credible

790 I EXTRATERRITORIAL CASES.

but on the other hand it appears strange, if the complaining
witness had been the victim of such a serious attempt, that
she did not complain to outsiders and still more strange that
she continued to live with the accused for nearly three
months longer.

The failure to complain is the more conspicuous because
it appears that she did make prompt complaint regarding
the assault alleged in the second charge. Several witnesses
testify to seeing marks of violence upon her person which
she stated were caused by the accused and the same Kong
Woo specifically testifies to having seen the accused strike
the complainant. The explanation offered by the accused
does not in our judgment overcome this testimony and we
must find the evidence sufficient to convict in cause No. 681
tho insufficient in cause No. 680.

It will be seen that the information in cause No. 681 does
not allege that the assault was committed "with intent to do
bodily harm" or "without just cause or excuse" which are
the phrases used in the statute ^ to define the more serious
assaults. Such intent "is an essential element of the of-
fence," - and in the absence of the averment or proof thereof
we can find the accused guilty of no more than the lighter as-
sault specified in the statute. He is accordingly so con-
victed, and a fine of fifty dollars. United States currency,
is imposed with the costs of this prosecution, and with sub-
sidiary imprisonment, in Bilibid Prison, Manila, according
to law, in case of insolvency.

IN THE UNITED STATES COURT FOR CHINA.
United States v. Chris Leonhardt and Bert Terry.

[Cause No. 683; filed October 7, 1918.]

SYLLABUS.

(By the Court.)

1. CONSPIRACY: ESSENTIALS. To commit the crime of conspiracy

as defined in the Federal Penal Code the conspirator need have
no previous acquaintance with, nor need either know of the
exact part performed by, his confederate.

2. Id.: Nor need more than one of the conspirators commit an overt

act.

' Federal Penal Code, sec. 276.

' Corpus Juris, V, 739 and cases cited in note 9.

U. S. V. LEONHARDT ET AL., OCT. 7, 1918. 791

3. Id. : Evidence. The crime may be proved by circumstantial evi-

dence in the reception of which great latitude is allowed.

4. Id. : Id. : The Order of Proof is discretionary with the trial court

and evidence of a conspirator's declarations may be received
before the conspiracy is fully proved, provided such proof is
presented subsequently.

5. Id. : Res Gestae. Such declarations may sometimes be admitted

as part of the res gestae.

6. Id. : Impeachment. Evidence offered by the government of prior,

extraforensic statements by one of its witnesses inconsistent
with his testimony, admitted by way of impeachment.

7. Id. : The possessor, even constructively, of stolen property, has

the burden of showing that his possession is innocent.

8. Id. : The failure to produce, or explain the nonproduction of doc-

umentary evidence raises the presumption that it would be
adverse.

Major Arthur Basset, U. S. A., Special U. S. Dist. Atty.,
for the prosecution.

Harry A. Lucker, Esq., for the defense.

LOBINGIER, J.:

The information in this cause charges that the defend-
ants

"on or about the 27th day of June, 1918, falsely, unlawfully and
wickedly, did conspire, combine, confederate and agree together with
Robert E. Marlowe, J. T. Jespersen, and other parties whose
names are unknown, to defraud the United States of America, and
in pursuance of the same conspiracy, combination, confederacy and
agreeing together with intent to defraud the United States of Am-
erica, did take, carry away and appropriate to their own use seventy-
five pairs of shoes of the value of three hundred and thirty-seven
dollars and fifty cents, United States currency, the property of
the United States of America which had been intrusted by the
Quartermaster of the China Expedition, United States Army, to
Robert E. Marlowe, Regimental Supply Sergeant, Fifteenth In-
fantry, United States Army, at Tientsin, China, for issue to the
organizations of the Fifteenth Infantry, United States Army."

The prosecution is brought under the following pro-
vision :

"If two or more persons conspire either to commit any offense
against the United States, or to defraud the United States in any
manner or for any purpose, and one or more of such parties do any
act to effect the object of the conspiracy, each of the parties to such

792 I EXTRATERRITORIAL CASES.

conspiracy shall be fined not more than ten thousand dollars, or
imprisoned not more than two years, or both." ^

The undisputed testimony shows that the Sergeant
Marlowe, mentioned in the information', received from
the Quartermaster's department (p. 31) on June 28, 1918,
112 pairs of army shoes of which he later invoiced 37. The
remaining 75 pairs were packed in two boxes and at the
request of Sergeant Marlowe (p. 2) loaded on the army
motor truck and conveyed to what is known as the "No.
1 Compound" of the China-American Trading Company's
Engineering Department, of which defendant Leonhardt
was in charge and was the only foreigner (American) in the
compound (p. 49). While en route Sergeant Marlowe
stated (p. 4) that they were being taken to defendant Leon-
hardt for repair. This remark was admitted as part of the
res gestae - tho it was also admissible on the principle dis-
cussed in part II hereof.

Upon arrival at the compound Sergeant Marlowe alighted
and entered the office, which was that of defendant Leon-
hardt (p. 45) , while the boxes were unloaded by two coolies
who were already there (pp. 5, 6, 8) and who, defendant
Leonhardt does not deny, when given the opportunity (p.
48), were under his control.

Up to this point the testimony, as we have said, is un-
disputed; here, it first diverges. The two men who were
on the truck with Marlowe testify that he entered the office
and conversed with defendant Leonhardt. The latter denies
this tho he admits (p. 45) that he was in the office during
the day and that he did see Marlowe the same evening. On
the other hand the mail orderly, who was on the truck,
positively identifies (pp. 8, 9, 10) defendant Leonhardt as
the one who conversed with Marlowe, while the truck driver
(pp. 3, 6) reiterates that "it appeared to be Mr. Leonhardt."
The opportunities of these two men for observation seem
to have been good. They were not over thirty or forty
feet from the office (p. 6) ; it was a hot summer day (as
the writer has reason to remember, the court being in

^ Federal Penal Code, sec. 37,

^ St. Clair v. U. S., 154 U. S. 134, 38 L. ed. 936; Keliher v. U. S.,
193 Fed. 8, 18.

U. S. V. LEONHARDT ET AL., OCT. 7, 1918. 793

session in Tientsin at the time) and naturally the doors and
windows were open; and a few days later, defendant
Leonhardt states (pp. 51, 52) , he was able to see the same
vehicle when it drove in tho he was two rooms back from
the office.

The testimony thus being sharply conflicting on one point
the statements of the two men that they saw Marlowe con-
versing with Leonhardt preponderates over the latter's
denial unless sufficient reason is shown for rejecting said
statements. But no such reason is suggested. These two
men so far as appears are absolutely disinterested, while
Leonhardt is one of the accused.

Moreover, without resolving such conflict, the testimony
seems to show at least a constructive delivery of the boxes
to Leonhardt. As we have seen he "was in charge of the
Engineering Department" (p. 49) ; he was "the only
foreigner (non-Chinese) in the compound" (p. 49) ; and
there had been at least one previous delivery there from
the Quartermaster's Department (p. 49). Now, it is an
elementary rule of evidence that the possession of stolen
goods places upon the possessor the burden of explanation
and of showing that his possession is innocent ^ and the rule
applies where the possession is only constructive. * Here
defendant Leonhardt does not deny the delivery within the
compound, of which he was in charge, and in front of his
office, of the two boxes of stolen shoes. He merely says
(p. 43) that if they were unloaded there it must have been
without his knowledge. This cannot be accepted as a suf-
ficient explanation nor as meeting the burden which the
law places upon him. Either the boxes were delivered to
him or they were not and the fact of delivery is undisputed.
If they were delivered, as he claims, without authority, the
natural course for him would have been to notify the mili-
tary authorities at once and cause the removal of the boxes.
But no such course was taken. And when, in addition, two
disinterested witnesses testify that immediately following
the unloading of the boxes the man who had caused their
unlawful abstraction from the Quartermaster's Department

^ Wigmore, Evidence, I, sec. 152.
* U. S. V. Simbahan, 19 Phil. 123.

794 I EXTRATERRITORIAL CASES.

was seen conversing with defendant Leonhardt, the pre-
sumption against him seems very strong.

II.

Sergeant Page, the storekeeper, who delivered the shoes
to Marlowe (p. 14), testifies that the latter

"came to me next morning as I was coming into the compound to
work and asked if Mr. Leonhardt had seen me and I told him, No,
he had not. And he says that we got a deal on up in Siberia some-
where to get away with some shoes. I don't know who he meant
by 'we' — I don't know who 'we' were — and he said he thought we
could make two or three hundred dollars apiece on it and gave
me a kind of an opening for me to say that I would go in on the
deal." (p. 17.)

This was admissible as the declaration of a co-conspirator.
For

"any declaration made by one of the parties during the pendency
of the illegal enterprise is not only evidence against himself, but
is evidence against the other parties, who, when the combination
is pt'oved, are as much responsible for such declarations and the
acts to which they relate as if made and committed by themselves." *

Of course such declaration cannot be considered as the
basis of a finding unless the conspiracy itself has been
proven. But it is not necessary to wait until "the combi-
nation has been proved" fully before admitting the declara-
tions. For

"according to the great weight of authority the order in which
the testimony shall be received is largely in the discretion of the
trial court. If the circumstances of the case are so peculiar and
urgent as to require it, the acts and declarations of a conspirator
may be introduced in the first instance before proof of the agree-
ment. * * * On account of the difficulty in proving conspiracy
and bringing the guilty to justice there is no class of cases in which
it is more important that the trial judge should have a large dis-
cretion as to the order in which evidence should be received and
this discretion cannot be reviewed on error except in clear cases
of abuse." •

This rule is followed in the Federal courts ^ and conse-
quently in jury trials. ^

' Morrow, J., charging the jury in U. S. v. Cassidy, 67 Fed., 698, 703.
" 8 Cyc, 682.

'Taylor v. U. S., 89 Fed., 954; Drake v. Stewart, 76 Fed., 140.
' State V. Lewis, 51 Or., 467, 94 Pac, 831.

U. S. V. LEONHARDT ET AL., OCT. 7, 1918. 795

Shortly afterwards Marlowe was ordered to the target
range at Leichuang from which place he wrote a personal
letter to defendant Leonhardt enclosing it in another letter
to Sergeant Mitchell which the latter, after reading it, de-
livered to defendant Leonhardt by placing it on his desk
(p. 28) . This letter, it is admitted (p. 47) , asked Leonhardt
for a loan of $10 and, according to Mitchell's testimony
at the trial (p. 30) referring to one J. T. Jespersen (men-
tioned in the information as a co-conspirator) , "wanted to
know how he was getting along." Two army officers,
Colonel Smart (p. 37) and Major Bassett (p. 39), testify
that Mitchell had previously told them that Marlowe had
asked Leonhardt in the letter to see Jespersen and ascer-
tain "if he had finished that deal yet" (p. 37) or "if the
deal had been put thru" (p. 39). This testimony was
admitted by way of impeachment ^ after the point had been
called to Mitchell's attention as a witness and he had denied
having made such a statement (pp. 29, 30, 31). Defendant
Leonhardt contradicted all of these witnesses by declaring
(p. 47) that "Jespersen's name so far as I know was not
mentioned at all." But he failed to produce the letter when
called upon to do so (p. 29) and the only explanation offered
was that "it has presumably been destroyed" (p. 29) altho
as the trial occurred on September 2 the letter had then
been received not so long before and the investigation of
the affair had rendered it of considerable importance.
Nevertheless, he does not even suggest that he had searched
for it. Under these circumstances the rule that a document
not produced must be presum.ed to be adverse to the pos-
sessor " would seem applicable.

in.

The next we hear of the shoes they are found in the
custom house at Tientsin en route to Kalgan and addressed
to the "Mongolian Trading Company," having been for-
warded by the J. T. Jespersen already mentioned (pp. 35,
36, 37). They were exactly the same number (75 pairs)

'Wigmore, Evidence, II, sec. 907; Swift & Co. v. Short, 92 Fed.,
567, 570.

" See Sy Joe Lieng v. Sy Quia, 16 Phil., 137, 161. Cf. Kirby v.
Tallmadge, 160 U. S., 379, 40 L. ed., 463.

796 I EXTRATERRITORIAL CASES.

of government shoes and were tied together in pairs in
the same manner as when they left the Quartermaster's
Department (pp. 22, 23). Jespersen indeed testifies (p.
40) that he .bought these shoes "from time to time from
people who come to my back door" but he does not explain
how he happened to get exactly 75 pairs of new army shoes
tied together in precisely the same way as those which
Marlowe took from the Quartermaster's Depot. Jespersen
came to the trial as a witness on behalf of the accused with
whom he appears to have been closely connected. The
fact that he was afterward called by the Government to
prove that he had shipped the shoes (because defendants'
counsel stated that he would object to the admission of the
shipping papers from the railway company) does not render
any more credible to us Jespersen's testimony on cross-
examination by defendants' counsel as to where he procured
them.

The manager (Mr. Coltman) of the Mongolian Trading
Company, to which the shoes had been shipped, was beyond
the reach of a subpoena at the time of the trial and to
avoid the necessity of postponement on that ground counsel
on both sides agreed that a letter (Ex. ''A") from him to
the Prosecuting Attorney and various correspondence (Ex.
"A-1" to "A-13") should be received in evidence with the
admission "that were Mr. Coltman here, he would testify
according to the tenor of the prosecution's Ex. "A" (p. 42).
The correspondence would probably have been admissible
without the stipulation ^^ but under this admission the
letters may be considered in the same way as if they had
been regularly identified by their respective authors. Mr.
Coltman's letter to the Prosecuting Attorney setting forth
his transactions with defendant Terry and Jespersen reads
as follows:

"When I was in Peking in June, when stopping my car at the China
Amei'ican Trading Co. for gasoline, Mr. Terry of that firm asked me if
I should be able to sell shoes in the north and in reply to the ques-
tions of kind and price he stated that a friend of his in Tientsin had

" Clune V. U. S., 159 U. S., 590, 40 L. ed., 269; Erber v. U. S., 234
Fed., 221.

U. S. V. LEONHARDT ET AL., OCT. 7, 1918. 797

75 pair of Amer. Army style shoes which he could ship me to Kalgan
for $6 per pair and I told him to ship them up and I would see
what I could get for them in Urga, as at the present time there
is a good demand for shoes and boots in Urga and along the Siberian
border. Desiring to make a larger shipment in the same line we
wi'ote the firm of J. T. Jespersen, whom we had been informed had
been supplying various Russian firms in Urga with boots, requesting
from him samples, and on July 13th received a note from him as to
shipment of 75 prs. boots mentioned by Mr. Terry. The further cor-
respondence with this party you will find self explanatory."

Defendant Terry, testifying in his own behalf (p. 54
et seq.), practically corroborates this recital and says in
reply to the question —

"This letter shows that this shipment was made under the arrange-
ment made by you?

"A. I haven't denied that" (p. 61).

He further admits —

"I wrote a letter to Jespersen that Mr. Coltman would take his
shoes and to ship to Mongolia at six pesos a pair " (p. 61).

On July 10 Jespersen wrote Mr. Coltman "I am sending
you 75 pairs boots as agreed with Mr. Terry" (Ex. A-3).

The Mongolian Trading Company replied on July 19
stating that they had not yet received the "75 pairs of boots
following the agreement with Mr. Terry" (Ex. "A-4") and
on July 28 another letter (Ex. "A-11") was sent to
Jespersen with the same complaint. Of course, Mr. Colt-
man was unaware at this time that the shoes had been seized
by the customs authorities.

There seems to be no reasonable doubt, therefore, that
defendant Terry was the intermediary between Jespersen,
the possessor of the stolen shoes after they had left the
compound of which defendant Leonhardt was in charge, and
a prospective purchaser. Defendant Terry, as we have
seen, does not deny his connection with the affair; the
most that he claims is that he was ignorant of its criminal
character. Here again the burden would seem to rest upon
him to offer a reasonable and satisfactory explanation. His
explanation is (p. 53) that he first met Jespersen "some time
in June" (necessarily after the 28th when the shoes had
been taken) at the bar of the "Imperial Hotel" which he

798 I EXTRATERRITORIAL CASES.

reached about 8.15 in the evening and, to quote his account
(p. 58) of this first meeting:

"Mr. Jespersen says 'where are you from' and I says 'from Peking*
and he says *I am a merchant here. Do you know anybody up your
way that would like to buy some shoes?' and I says 'what kind of
shoes?' He says 'men's shoes' and I says 'I \vi\\ look around.' "

This he declares (p. 45) was his only interview with
Jespersen and as he left the hotel "about a quarter of nine"
(p. 57) his entire stay there did not exceed thirty minutes
during which time he first became acquainted with Jespersen
"shook for drinks or cigars" (p. 57) and effected the ar-
rangement which he does not deny having made. Yet that
arrangement must have included many more details than
he recounts, for according to Mr. Coltman's letter (Ex.
"A"), which Terry does not deny, the latter told the former
"that a friend (indicating more than a half -hour's acquaint-
ance) of his in Tientsin had 75 pairs of American army
style shoes which he could ship me to Kalgan for $6 per
pair." Moreover, Jespersen in his first letter refers, as
we have seen, to "75 pairs boots as agreed with Mr. Terry."
When asked on cross-examination (p. 61) "But both Mr.
Coltman and Mr. Jespersen in their letters stated 75 pairs
shoes as arranged by Mr. Terry. How does that happen ?"
he repHed "I don't know, sir."

In other words, he was unable to give any satisfactory
explanation of the source of his knowledge as to the number,
quality, and price of the shoes offered by Jespersen if the
arrangement with the latter had been merely such as Terry
claims. Moreover, his course during the period when the
investigation of this affair first began was not that of a
man who had been innocently misled into a connection with
a criminal transaction. Defendant Terry admits (p. 60)
that he is an ex-soldier and knows the penalty for dealing
in military equipment; also that he was interviewed by
Major Drysdale in Peking (p. 58) who was investigating
this affair. Part of the cross-examination on this point
is as follows:

"Q. Now, Mr. Terry, why didn't you explain to Major Drysdale
then what your connection with Mr. Coltman and Mr. Jespersen had
been?

U. S. V. LEONHARDT ET AL., OCT. 7, 1918. 799

"A. Well, I had heard of this army scandal about United States
army shoes in Tientsin, and I didn't want to be mixed in with it.
"Q. Wanted to conceal your connection with it?
"A. Wanted to conceal my connection with any U. S. Army shoes."
(p. 59.)

It also appears (p. 62) that he was given an opportunity
to explain his connection with the affair to the Judge
Advocate, the present Special Prosecuting Attorney, and
declined to do so. Yet if, as he now claims, defendant
Terry was the innocent victim of a conspiracy of others his
first act would normally have been to have made a clean
breast of his entire connection with the matter and asserted
his innocence then and there.

IV.

More than most offenses conspiracy may be established
by circumstantial evidence.

"While men sometimes have a prejudice against this class of
evidence, Judge Dillon said, in a case he tried while he was on the
circuit bench of Iowa, that altho this was one of the resorts of
lawyers to make a hobgoblin, to frighten jurymen into a prejudice
against this class of evidence, yet circTimstantial evidence was one
of the most important classes." "

Moreover,

"In the reception of circumstantial evidence great latitude must be
allowed. The jury should have before them, and are entitled to con-
sider, every fact which has a bearing on, and a tendency to prove,
the ultimate fact in issue and which will enable them to come to a
satisfactory conclusion. The government has the right to show the
whole history of the conspiracy from its commencement to its con-
clusion." "

Again,

"As has been often remarked, it is not necessary that direct evi-
dence of a formal agreement should be given in such cases. If the
evidence of the separate details of the transaction as it was carried
out indicates with the requisite certainty the existence of a precon-
certed plan and purpose, that is sufficient." "

" Parker, J. (charging the jury) , in U. S. v. Howell, 56 Fed., 21, 35.
"^ Corpus Juris, XII, 634.

" Reilley v. U. S., 106 Fed., 896, 905. Cf . Davis v. U. S., 107 Fed.,
753.

800 I EXTRATERRITORIAL CASES.

Here the parties charged with conspiracy are all mutually
acquainted. Leonhardt (p. 43), Terry (p. 60), who are
ex-soldiers, and Jespersen (p. 40) all admit knowing Ser-
geant Marlowe who, like the two former (pp. 45, 60) was
a member (p. 45) of the Spanish-American War Veterans
Club in Tientsin which all of them frequented (pp. 25, 46,
47, 52, 57). Terry admits (p. 56) that he was "very
friendly with Mr. Leonhardt" while the latter 's relations
with Marlowe are shown by Leonhardt's admission that
Marlowe had frequently borrowed money of him (p. 48)
and wrote him a personal letter after going to Leichuang,
while Leonhardt was a witness in Marlowe's behalf at the
latter's trial (p. 50). The testimony of the two witnesses
already referred to, that Marlowe conversed with Leonhardt
at the time of the delivery of the shoes at the compound,
seems to complete the connection between these two.

"It would not, in such a case, be necessary to show that the parties
had any previous acquaintance, or, with the exception of Rogers,
knew of the exact part the other was to perform. In such a case,
each might be considered a co-conspirator with Rogers, and being
so, would be responsible for his acts in carrying out the illegal pur-
poses." "

Here, therefore, it would not be necessary for each of the
two accused to know "the exact part" performed by the
other in this affair; but in view of their admitted "very
friendly" relations we think there is little doubt but that
each did know. Each at any rate appears to have been
interested in the shoes and they were the connecting link not
only between the accused but between them and the others
mentioned in the information.

The overt act which, as is contended by defendants'
counsel, must appear, is found in the negotiations conducted
by defendant Terry as well as in the original abstraction
by Sergeant Marlowe. For it is not necessary that more
than one of the conspirators commit the overt act.^"

On the whole, the evidence in this case appears to us
quite as strong and sufficient as that in other reported

'° U. S. V. Rindskopf , 6 Biss. 259, 27 Fed. Cas. 813, 814.
"Id.

FORD V. MACDONELL-CHOW CORP., OCT. 31, 1918. 801

cases '^ where defendants have been convicted of the crime
here charged and we find it sufficient to require a convic-
tion in this case.

We accordingly find each of the defendants guilty of the
crime of conspiracy as charged in the information and each
is hereby sentenced to a term of imprisonment for one
year to be served in Bilibid Prison, Manila, Territory of
the Philippines, unless transferred to some other place
of confinement, and to pay a fine of one thousand dollars,
United States currency, with subsidiary imprisonment there
according to law in case of insolvency, and to pay one-half
the costs of this prosecution.

IN THE UNITED STATES COURT FOR CHINA.

H. Leslie Ford, Plaintiff, v. Macdonell-Chow Corpora-
tion, Defendant.

[Cause No. 690; filed October 31, 1918.]

SYLLABUS.
(By the Court,) *

1. CONTRACTS: INTERPRETATION. The rule of contra preferentem

applied.

2. Id. : Employment : The Burden of Proving insubordination jus-

tifying an employee's discharge rests upon the employer.

3. Id.: Id.: Damages. After discharge, tho wrongful, the employee

must seek other employment and accept it if similar and any
amount earned, or which might with due diligence have been
earned, thereby must be applied in mitigation of his damages.

4. Id. : Id. : The Burden op Proving justification for the failure to

accept such employment rests upon the employee.

5. Id.: Id.: An obligation "to pay the travelling expenses" of an

employee in returning home is not discharged merely by re-
serving passage or offering to provide it within a limited time;
nor on the other hand is the employee entitled to such expenses
except in case he actually returns home.

Alexander Krisel, Esq., for plaintiff.

Messrs. Fleming & Davies, by Mr. Fleming, for defendant.

"Taylor v. U. S., 89 Fed., 954; U. S. v. Scott, 139 Fed., 697; Smith
V. U. S., 157 Fed., 721; Heike v. U. S., 192 Fed., 83.

14008 O. W.-

8Q2 I EXTRATERRITORIAL CASES.

LOBINGIER, J.:

This is an action on a contract drawn by defendant's
attorney and director and executed in New York on Feb-
ruary 28, 1918, under which plaintiff entered into the
defendant's employ. Clause 4 provides that:

"The said Ford shall receive for his services and the corporation
agrees to pay to him the sum of at least Fifty ($50) Dollars per
week (payable weekly) during the continuance of his employment.
But it is understood that the salary of the said Ford may hereafter
be increased, if the services rendered by him warrant an increase;
such increase to be arranged and agreed to for the corporation by
the President."

Plaintiff, after alleging his arrival in Shanghai on March
31, further avers:

"That thereafter and on or about the 13th day of April, 1918, the
defendant corporation thru its president and manager at Shanghai,
China, increased the salary of the plaintiff to the sum of Taels Three
Hundred per month, payable monthly."

To this averment the answer

"admits that thru its president and manager at Shanghai it
increased the salary of the plaintiff but alleges that such increase
was only temporary and upon the agreement and understanding that
it should be terminated at any time thereafter at the option of the
said president and manager."

Defendant's only witness in support of its affirmative
allegation of defence following the admission above recited
is its president and manager and he does not testify to
any "agreement and understanding" with plaintiff that the
increase should be terminated at the former's option. He
says, indeed, that he stated he "would temporarily grant
him (plaintiff) an advance pending future developments"
but he does not claim that plaintiff "agreed" that this ad-
vance should be only temporary. Moreover, on the same
date as that alleged in the answer as the occasion of the
increase, the president and manager wrote to the home
office as follows :

"Mr. Ford, on his arrival here, has found the cost of living
greatly in excess of what he had previously understood they would
be. In consequence, I have had to make a temporary readjustment
of his salary, which I beg to refer to you for continuation."

FORD V. MACDONELL-CHOW CORP., OCT. 31, 1918. 803

Here, while speaking of the readjustment as "temporary,"
he does not indicate any agreement or understanding with
plaintiff to the effect that the same might be terminated at
the manager's option.

On the other hand, plaintiff testifies that the increase to
Tls. Three hundred per month was reached as the result
of a discussion in which various figures were named and .
that nothing was said about the increase being temporary.
It is conceded also that the manager did pay plaintiff the
sum of Tls. Three hundred for each of several months
without question and the conditions which required the
increase to that sum — principally the low price of Amer-
ican currency in which the minimum salary was fixed —
became more and more aggravated as the employment
continued. Finally, it will be noticed, that while the con-
tract authorized the president and manager to arrange in
the corporation's behalf an increase of plaintiff's compen-
sation there is no provision authorizing him to decrease it
and it seems doubtful if such authority, to be exercised
without plaintiff's consent, could be inferred.

The contract was drawn, as we have seen, by defendant's
attorney and director and the rule of interpretation in such
cases is that of contra preferentem, i. e., that the instrument
is to be construed most strongly against the framer.^
Moreover, the burden rests upon defendant to prove its
affirmative defence "that such increase was only temporary
and upon the agreement and understanding that it should
be terminated at any time thereafter at the option of said
president and manager." In the light of the whole tes-
timony we are unable to say that this burden has been met
and we must therefore find that the increase to Tls, Three
hundred per month continued until changed by mutual
agreement or by other circumstances not here shown.

II.

The complaint further alleges:

"That thereafter and on or about the 31st day of July, 1918, the
defendant corporation, thru its president and manager of the

'Corpus Juris, XIII, 545; King Ping Kee v. American Food Mfg.
Company,, ante, p. 735.

804 I EXTRATERRITORIAL CASES.

Shanghai office, wrongfully discharged the plaintiff and refused to
permit him to serve as aforesaid, tho the plaintiff then and there
offered to continue in said service and still offers to perform all
conditions on his part to be performed under the said agreement."

The answer admits (par. 4) the discharge on the date
mentioned ''but denies that said discharge was wrongful"
and "alleges that said plaintiff was discharged for miscon-
duct and insubordination." Here again the burden of proof
rests upon defendant; having admitted the discharge the
justification thereof is for it to show. The particular cause
alleged by the manager, who is again defendant's only wit-
ness on the point, is the application to him of an offensive
epithet by plaintiff. The latter denies this and the testi-
mony is therefore equally balanced; for it cannot be said
that one of these witnesses is more interested than the other.
Moreover, it is conceded that immediately after the inter-
view at which the alleged epithet was applied, the manager
came to the plaintiff and asked him to continue tho at the
minimum salary. This, if not actually inconsistent with
the alleged misconduct, would seem like a condonation
thereof and —

"If there has been an actual forgiveness of a breach of contract
on the part of a master to a defaulting servant, he cannot afterwards
rely upon such breach in discharging the servant." ^

Especially in view of the letters from the home office
(Ex. C. & E.), praising the quality of plaintiff's services,
we cannot say that sufficient cause for his discharge has
been shown.

III.

Plaintiff testifies that after his discharge he sought em-
ployment with other firms, that he was finally offered a
position with a local house at a salary considerably larger
than he had been receiving from defendant, but that he
voluntarily chose not to accept it, giving as the sole reason
negotiations with defendant for reemployment. The rule
is that the amount which a discharged employee earns, or

* Dick, J., charging the jury in Leatherberry v. Odell, 7 Fed., 641,
648.

FORD V. MACDONELL-CHOW CORP., OCT. 31, 1918. 805

might with due diligence have earned, after his discharge
must be applied in mitigation of his damages.^

Whether the negotiations referred to justified plaintiff in
failing to accept this new position is not clear; for both
parties have treated them as privileged, the details are
not in evidence, and it does not even appear when they
terminated. A cable (Ex. F) from defendant's home office
appears to have been received on Aug. 14 advising plaintiff
to "do nothing further; await our instructions." But a
letter of the same date (Ex. 6) from defendant's attorneys
announced that "under no circumstances will they make
any further offer, or consider the reemployment of Mr.
Ford in the Shanghai office." At that time, it is undisputed,
he could have taken the new position and any delay would
seem to have been at his risk. Moreover, there is no
evidence that the offer has ever been withdrawn. For
while plaintiff states that he "was told that the position
had been filled" the department manager of the firm which
made the offer, testifies that it still remains open so far as
he is concerned, and that his "wishes very much control."
Upon the evidence before us we are unable to find that
plaintiff was justified in not accepting the offer, at least
before the complaint was filed.

It is true that defendant does not set up this defence in
its answer and had plaintiff objected to the admission of
evidence disclosing this other opportunity of employment
it would necessarily have been excluded. But plaintiff not

'26 Cyc, 1013, note 4; Page, Contracts, III, p. 2411; Kramer v.
Wolf Cigar Stores Co. 99 Tex., 597, 91 S. W., 775, 777; Williams
V. Chicago Coal Co., 60 111., 149; Birdsong v. Ellis, 62 Miss., 418.

"As she did not actually perform the services stipulated in the
contract, the defendants may show in mitigation of damages that
during the balance of the unexpired term she received other similar
employment, or might have received such emplojrment by proper
efforts; as she is only entitled to actual loss from the breach of the
contract, and cannot recover for loss which might have been pre-
vented by reasonable diligence. A discharged servant cannot law-
fully spend the balance of an unexpired term of service in idleness
and sloth, but must use reasonable efforts to relieve the employer
from damage and loss." Leatherberry v. Odell, 7 Fed., 641, 646-7.

806 I EXTRATERRITORIAL CASES.

only did not object to the admission of such evidence but,
as already stated, he himself testified, before its admission,
of a search for other employment resulting in the offer.
In such cases the rule is that evidence received without
objection, tho not strictly admissible under the pleadings,
must be considered.'

It is also true that the evidence fails to show the duration
of the employment offered by the new firm and therefore
should it cease before "the expiration of the first year"
(within which under clause 3 defendant is entitled to ter-
minate) under the old contract, plaintiff might still have a
cause of action thereon. But that could only be tested by
accepting the new employment and seeking in good faith
to retain it as long as possible. We cannot presume that
such employment would cease before March 31, when the
year above referred to ends, nor is there any evidence from
which we could even conjecture the value of the contract in
the improbable contingency that defendant should fail to
give notice of cancellation before said date. The sixty days'
notice provided by said clause is required only for termina-
tion at the end of the first year.

We feel obliged, therefore, to limit plaintiff's recovery
of salary at this time to the period between July 31, the
date of his discharge, and September 25, the date of filing
the complaint, and necessarily after plaintiff terminated the
negotiations with defendant. At the amount to which we
have found he was entitled under his contract, his total
salary for this period would be Tls. Five hundred and fifty.

IV.

The contract further provides —

"Upon the expiration in regular course (or at any earlier tirae
by mutual consent of the parties) of the term of employment above
stated, or of any extended term of employment, the corporation '
agrees to pay the travelling expenses of the said Ford and of his
wife for the return trip to New York or any other point or place j
in the United States."

^Lesser v. Gilbert Mfg. Co., 72 N. Y. App. Div., 147, 75 N. Y.^
Supp., 486.

FORD V. MACDONELL-CHOW CORP., OCT. 31, 1918. 807

A similar privilege is reserved to plaintiff in case of can-
cellation of the contract at the expiration of one year or in
case of his discharge for cause, tho in each of said cases
there is a proviso that plaintiff and his wife must "leave
the Orient for the United States not more than thirty days
after such cancellation." As we have found that the evi-
dence is not sufficient to establish a discharge for cause and
as a year has not expired since the execution of the contract
neither of these latter provisions would seem applicable
and the one above quoted must be applied unless we are to
hold that defendant is able to escape this concession by a
wTongful discharge. The employment has now been ter-
minated and again bearing in mind the contra preferentem
rule we are of the opinion that the paragraph above quoted
includes this case.

Defendant shows that it reserved passage for plaintiff' on
a steamer leaving within forty-eight hours from the time
of notifying him and within which time he testifies he was
unable to leave. It is also shown that defendant offered to
provide transportation for plaintiff during the balance of
August but that no transportation was available for that
period. Of course mere reservation or offer to provide
transportation does not constitute performance of an agree-
ment "to pay the travelling expenses," etc. There is no
claim here that defendant has ever paid these expenses nor
tendered the amount thereof to plaintiff and without such
a showing we do not consider this clause of the contract
performed.

On the other hand it is only the expenses of "the return
trip" which defendant undertakes to pay. Plaintiff is not
entitled to these unless he actually makes "the return trip"
and in view of the possibilities of other employment in
China we are of the opinion that he should present a show-
ing of an intention to return and evidence, of which there
is none, as to the amount of such expenses. If the parties
cannot agree as to these items, further evidence will be
received in relation thereto.

It is accordingly considered and adjudged that plaintiff
have and recover at this time from defendant the sum of

808 I EXTRATERRITORIAL CASES.

Tls. Five hundred fifty, together with his costs, without prej-
udice to future recovery upon any cause or causes of action
hereafter arising from the contract sued upon.

IN THE UNITED STATES COURT FOR CHINA.
Huang Mien Chow, Plaintiff, v. The Machinery & Metals
Sales Company, Defendant.

[Cause No. 707; filed November 9, 1918.]

SYLLABUS.

(By the Court.)

JUDGMENTS: CONFESSION. An agent upon whom a summons may

be served may confess judgment against a corporate defendant.

Alexander Y. Ting, Esq., for plaintiff.
Nemo contra.

Lobingier, J.:

On November 16, 1918, plaintiff filed his petition claiming
judgment in the amount of Tls. 4,395.55 for salary and
money advanced under a compradore agreement with the
defendant corporation. By amendment this claim was later
reduced by Tls. 300. Summons was duly issued and served
November 18 on defendant's "Manager for China." Two
days later an instrument entitled "Confession of Judgment,"
signed by the latter, was filed reading as follows:

"Now comes the above named defendant and confesses judgment
for the amount of plaintiff's claim as set forth in his petition filed
herein."

Subsequently the said manager presented a power of
attorney which, however, is a general one containing no
specific authority to confess judgment. In the absence of
such authority it was at least doubtful whether an agent
might confess judgment for his principal at common law.^

The Court Regulation of August 18, 1888, provides for
the confession of judgment by an individual, requiring
his oath and signature. But a corporation must act thru
an agent and if we stop with the Regulation above referred
to we must hold that a corporation cannot confess judg-
ment at all which would leave an undesirable situation.

^ Cyc, XXIII, 701, 702.

ERZA V. MERRIMAN, NOV. 13, 1918. 809

In this emergency we adopt as an amendment to said
Regulation and apply the following statutory provision :

"When the action is against a public * or a private corporation,
the confession shall be made by the person who at the time sustains
the relation to such corporation as would authorize the service of
a summons upon him. In all other cases the confession shall be
made by the defendant in person." *

It may be added that if the instrument entitled "Confes-
sion of Judgment" is not sufficient for that purpose it is
quite as inadequate as an answer. Moreover, the testimony
of defendant's manager has been taken and it alone fully
establishes the validity of plaintiff's claim. No meritorious
defence having been pleaded and the time for answer having
expired plaintiff is entitled in either view to judgment.

It is accordingly considered and adjudged that plaintiff
have and recover from defendant the sum of Tls. 4,095.55
together with his costs.

IN THE UNITED STATES COURT FOR CHINA.
JuDAH I. Ezra, Plaintiff, v. W. L. Merriman, Defendant.

[Cause No. 701; filed November 13, 1918.]

SYLLABUS.
(By the Court.)

1. STATUTES: APPLICABILITY: The doctrine that a general act of

Congress, applicable in this jurisdiction, will be applied in pre-
ference to a special act, reaffirmed.

2. Id.: Id.: Where the special act merely supplements the general

the former may also be applied but only where the two are
consistent.

3. Id.: Depositions: The act of Congress of 1789, governing the

production of evidence, is a general act and may be applied
in this jurisdiction.

4. PLEADING: DEFAMATION: The rule as to particularity is stricter

in defamation than in ordinary cases and the time, place and
hearer of the offending statement must be set out if required
by defendant.

Allison D. Gibbs, Esq., for plaintiff.

Messrs. Jernigan, Fessenden & Rose, for defendant.

' Act of Congress of June 6, 1900, Sess. I, 31 U. S. Stats, at Large,
369, Ch. 786, Tit. II, sec. 242.

810 I EXTRATERRITORIAL CASES.

LOBINGIER, J.:

The petition herein was filed on November 1 and three
days later plaintiff presented a motion to have the de-
fendant's deposition taken before the Court. The Court
Regulations do not yet provide for the taking of depositions
and this motion is based upon a section of the Act of
Congress providing civil laws for Alaska and authorizing
the taking of a deposition "at any time after the service
of the summons * * * when the witness is a party to
the action," etc.^ That section forms part of the evidence
provisions of the Alaska Code and constitutes one of three
distinct enactments by Congress on the subject of taking
depositions. The first was passed at the very foundation
of the Federal government - and has ever since controlled
the practice of the federal courts in such matters. The
second was the act relating to Alaska, above mentioned,
and the last was one enacted primarily for the District of
Columbia.'

In applying federal statutes in this jurisdiction the
general have always prevailed over the special. As this
Court said in a recent decision:^

"Where a general act of Congress * * * jg applicable it will
be applied in preference to an act intended for a limited locality."

So the Court of Appeals in the leading case ^ on the
subject only applied the special acts for Alaska and the
District of Columbia after it had found that "there is no
general statute applicable." Of course where the general
act is deficient or where the special act is merely supple-
mentary it often happens that both may be applied. But
that is possible only where there is no conflict between
the two, for in such a case the general act must necessarily
prevail.

'Act of Congress of June 6, 1900, Sess. I, 31 U. S. Stats, at
Large, Ch. 786, Tit. II, sec. 644.

^ Act of Congress of September 24, 1789, 1 U. S. Stats, at Large,
Ch. 20, p. 73 (the Judiciary Act).

'Act of Congress of June 30, 1902, Sess. I, 32 U. S. Stats, at
Large, Pt. I, p. 538 (District of Columbia Code), sec. 1058.

* U. S. V. Diaz, ante, p. 784.

' Biddle v. United States, ante, p. 120.

EZRA V. MERRIMAN, NOV. 13, 1918. 811

It is contended indeed that the statute here invoked is
not inconsistent with the general federal law governing
the taking of depositions. But unfortunately for that con-
tention the Supreme Court has already decided otherwise.
In a case '' removed from the state courts of New York to
the Federal Circuit Court plaintiff sought to invoke a state
statute similar to, but less drastic than, this for it was
only intended to take the deposition of defendant before
trial and not before answer. The Supreme Court '^ in
granting a writ of habeas corpus to the defendant, who
had been committed for contempt in failing to obey the
circuit court's order to give his deposition, quoted the
principal sections of the general law above referred to and
said :

"No one can examine these provisions for procuring testimony
to be used in the Courts of the United States and have any reason-
able doubt that, so far as they apply, they were intended to provide
a system to govern the practice, in that respect, in those courts.
They are, in the first place, too complete, too far-reaching and too
minute to admit of any other conclusion. But we have not only
this inference from the character of the legislation, but it is en-
forced by the express language of the law in providing a defined
mode of proof in those courts, and in specifying the only exceptions
to that mode which shall be admitted.

"This mode is 'by oral testimony and examination of witnesses in
open court, except as hereinafter provided.' "

After noting the exceptions to this general practice the
court continued:

"These are the exceptions which the statute provides to its positive
rule that the mode of trial in actions at law shall be by oral testimony
and examination of witnesses in open court. They are the only
exceptions thereinafter provided. Does the rule admit of others?
Can its language be so construed?

"On the contrary, its purpose is clear to provide a mode of proof
in trials at law to the exclusion of all other modes of proof; and
because the rigidity of the rule may, in some cases, work a hardship,
it makes exceptions of such cases as it recognizes to be entitled to
another rule, and it provides that rule for those cases. Under one
or the other, all cases must come. Every action at law in a Court
of the United States must be governed by the rule, or by the exceptions

'Ex parte Fisk, 113 U. S., 713, 28 L. ed., 1117. Cf. Carpenter v.
Winn, 221 U. S., 533, 55 L. ed., 842; Zych v. American Car etc. Co.,
127 Fed., 723.

812 I EXTRATERRITORIAL CASES.

which the statute provides. There is no place for exceptions made
by state statutes. The court is not at liberty to adopt them, or
to require a party to conform to them. It has no power to subject
a party to such an examination as this. Not only is no such power
conferred, but it is prohibited by the plain language and the equally
plain purpose of the Acts of Congress, and especially the chapter on
Evidence of the Revision."

We do not think this decision any less pertinent because
the statute there in question had been passed by a state leg-
islature nor because the one here invoked was enacted after
the decision was rendered. The principle announced therein
seems to us equally applicable here and if the state statute
there invoked was so repugnant to the prescribed practice
of the federal courts that the latter could not apply it we
must conclude that they would be equally inhibited from
applying the statute here relied upon even tho it is au-
thorized in the territorial courts of Alaska. In other words
the conclusion seems irresistibly to follow that if an ex-
clusively federal court like this were established in Alaska
it would be obliged under the decision above cited to follow
the general and not the local law in the taking of deposi-
tions.

Nor do we think that the Act of 1789 is any less a
general law because its provisions for taking depositions
de bene esse do not apply to causes in the Supreme Court ^
nor in foreign countries.^ That is only one of the modes
of procuring extra-forensic testimony provided by the act
(the others expressly apply in "any court of the United
States")" and it is in vogue in all federal courts of general
jurisdiction. Formerly these included both district and
circuit courts but the latter having been abolished there
is now but one class of nisi prius federal tribunals, viz.,
the district courts to which this Court, as both nisi prius
and exclusively federal, naturally belongs.^" The original
act provided that "the modes of proof * * * shall be

' The Argo, 2 Wheat, 287, 4 L. ed., 241 ; Richter v. Jerome, 25 Fed.,
679.

•The Alexandra, 104 Fed., 904; Bird v. Halsey, 87 Fed., 671.
"U. S. Rev. Stats., sees. 866, 867, 868.
"/n re Corrigati's Estate, ante, p. 717.

EZRA V. MERRIMAN, NOV. 13, 1918. 813

the same in all courts of the United States" ^^ and the act
as a whole being still applicable to all of such courts and
the particular provisions referred to being applied to all
trial courts thereof we think the act clearly general as dis-
tinguished from one restricted to the courts of a single
locality like Alaska or the District of Columbia. The
inapplicability of said particular provisions in foreign
countries must of course be interpreted here from the stand-
point of this Court whose jurisdiction covers the territory
of China which is, therefore, not foreign to it.

Stress is laid in plaintiff's argument upon the restrictions
of the general act as regards the officers who may take
depositions de bene esse. But in construing extended
legislation it is a fundamental rule that a law is not in-
operative merely because officers of the same titles are not
found in the region to which the extension is proposed. It
is sufficient if there are corresponding officers with similar
functions.^- Here the state officers named in the section
referred to are not found but we have all of the cor-
responding federal officers — Judge, Commissioner and
Clerk — with almost literally the same titles.

We are convinced, therefore, that the act of 1789 is
general and may be applied in this jurisdiction at least
until the Judge of this Court has exercised his statutory
"authority to modify and supplement" '=* the existing pro-
cedure by promulgating new rules for taking depositions.
It follows that plaintiff's motion must be overruled; but
we do not see that any real hardship will result because,
until defendant has filed his answer, the taking of his
deposition would be hampered by the fact that the issues
have not been joined and that it would be difficult to deter-
mine what evidence would be relevant and what should be
excluded.

" Act of Congress of Sept. 24, 1789, 1 U. S. Stats, at Large, Ch.
20, p. 88, sec. 30.

"Alaska Gold Mining Co. v. Ebner, 2 Alaska, 611; U. S. ex rel.
Raven v. McRae, ante, p. 655.

" Act of Congi-ess of June 30, 1906, 34 U. S. Stats, at Large, Ch.
3934, sec. 5.

g]^4 I EXTRATERRITORIAL CASES.

11.

Defendant also files a motion asking for "a bill of par-
ticulars stating the exact time and place and the persons
to whom" certain statements therein alleged "were actually
spoken and published." The rule applicable to that subject
is thus stated in a work of authority :

"It is generally held that defendant is entitled to know definitely
the time and place of the publication of the alleged slander or libel
and the name of a party to whom publication was made, and if the
complaint fails to show these particulars, a bill will be ordered." "

Numerous authorities, both English and American, are
cited in support of this statement and defendant's counsel
presents additional citations ^^ to the same effect. Plain-
tiff's counsel invokes the following passage from a leading
text-book on the subject:

"When the means of the party who applies for the bill of par-
ticulars for ascertaining the information sought are equal to the
means of the adverse party to furnish it, no bill of particulars will
be ordered." "

But only three decisions are cited in support of this pro-
position, all of which are from nisi prius courts, and the
only one here accessible ^^ was not a case of libel or slander
at all. Of course in other cases the statement last quoted
is perfectly correct but in actions for defamation the rule
first stated seems to prevail. Defendant's motion for a
more specific statement is accordingly sustained.

Defendant also asks for an order extending the time to
plead so as to allow after the filing of the bill of particulars
the full period of twenty days provided by rule after the
date of service. But defendant has already had ten days
and the averments of which the bill of particulars is asked
form but a small part of the petition. It is believed, there-
fore, that by allowing ten days after the bill of particulars
is filed defendant will have ample time.

IT IS SO ORDERED.

"25 Cyc, 467.

"Cole V. Babcock, 78 Maine, 41, 2 Atl., 545; Young v. Cook, 144
Mass., 39, 10 N. E., 719.

"Newell, Slander and Libel (3d ed., 1914), sec. 906.

"U. S. V. Tilden, 10 Ben. (U. S. D. C), 547, 28 Fed. Cas., 171.

IN RE PETITION OF NARODEZKY, NOV. 19, 1918. §15

IN THE UNITED STATES COURT FOR CHINA.

In re Petition of Paisach Narodezky for Change
OF Name.

[Cause No. 697; filed November 19, 1918.]

SYLLABUS.
(By the Court.)

1. NAMES: CHANGE: At Common Law a change of one's name might

be without judicial sanction.

2. Id.: Id.: But Under the Statutes prevailing in this jurisdiction

such a change may be effected only in a legal proceeding and
"for sufficient reasons not inconsistent v^rith the public interest
and satisfactory to the Court."

3. Id. : Id. : Record Examined and found to establish such reasons.

Lobingier, J.:

The petition in this cause which is duly verified, reads
as follows:

"Comes now Paisach Narodezky and shows this honorable Court:

1. I was born at Radomis, State of Kieff, Russia, on the 26th of
December, 1892.

2. I emigrated to the United States and landed at Galveston, on
or about the 7th day of July, 1913. On the 15th day of February,
1915, before the United States District Court of the Western District
of Texas, at San Antonio, Texas, I renounced my Russian citizenship
and declared my intention to become a citizen of the United States.

3. On the 22nd day of July, 1915, I enlisted in the United States
Army and am now serving as a private 1st class in Company M,
15th Infantry, United States Army, Tientsin, China. It is my in-
tention to return to the United States and to complete my naturaliza-
tion as a citizen of the United States.

4. I desire to abandon the use of the name Paisach Narodezky
and to adopt and hereafter be known by the name Paul Norman.

Wherefore, I pray this honorable Court to change my name from
Paisach Narodezky to that of Paul Norman and that henceforth I
be known as and be entitled to use the name of Paul Norman."

At common law judicial sanction was not required ^ in
order to effect a change of name; but under the Act of
Congress of June 6, 1900,

"No lawful change of the name of a person, except a woman upon
her marriage or divorce, shall be made in the district unless for

' Cyc, XXIX, 271.

816 I EXTRATERRITORIAL CASES.

sufficient reasons not inconsistent with the public interest and satis-
factory to the court." ^

This act further requires public notice both of the ap-
plication and of the disposition thereof.^ The later Act
of March 3, 1901, while in no way inconsistent with the
foregoing, is more elaborate. It provides:

"Sec. 1298. Any person of full age, being a resident of the district
and desirous to have his name changed, may file a petition in the
supreme court setting forth the reasons therefor and also the name
desired to be assumed.

Sec. 1299. Notice of the filing of such petition, containing the sub-
stance and prayer thereof, shall be published for three consecutive
weeks in some newspaper in general circulation published in the
district prior to the hearing of the petition.

Sec. 1300. The court, or the justice holding an equity term thereof,
on proof of such notice and upon such showing as may be deemed
satisfactory, may change the name of the applicant according to the
prayer of the petition."*

This legislation seems perfectly applicable in this juris-
diction, and sufficient, under the act extending here *'the
laws of the United States," to confer jurisdiction on this
Court as the one most nearly corresponding to "the Supreme
Court" mentioned therein.^ Proof is presented of the pub-
lication of a notice in the North China Daily Sta7% a news-
paper of general circulation in the locality where the peti-
tioner resides, as required by the second section above
quoted. The petition lacks an averment "setting forth the
reasons" for the desired change but that appears to be
supplied by the petitioner in his deposition, taken before
the Judge Advocate ** of the China expedition at Tientsin,
in which he testifies,

"I applied to the United States Court for China to change my name
from Paisach Narodezky to Paul Norman because it is my intention
to complete my naturalization as an American citizen and to reside
in the United States. The name of Paul Norman is to my mind

* 31 U. S. Stats, at Large, Sess. I, Ch. 786, Tit. Ill, sec. 32.

* Id. sec. 33.

* 31 U. S. Stats, at Large, Sess. II, Ch. 854, sees. 1298-1300.
'Alaska Gold Mining Co. v. Ebner, 2 Alaska, 611; U. S. ex rel.

Raven v. McRae, ante, p. 655. Ezra v. Merriman, ante, p. 808.

* Under Articles of War, 114.

IN RE PETITION OF NARODEZKY, NOV. 19, 1918. 817

more American than my present name and is easier pronounced and
spelled than my present name and I believe it will be better for me
as an American, residing in the United States, to have this name
than the one I now bear. I have nothing to conceal in my past life
and the purpose of the change is to aid me in becoming a better
American citizen. I have two brothers who now reside in the United
States both of whom have taken and are known by the name of
Norman and it is our intention that our family name in the United
States shall be Norman. I have purchased land in the United States
and the contract of purchase was made in the name of Paul
Norman."

This declaration seems also to meet the purpose of some
statutes, like those of New York,^ in requiring petitioner
to state whether there are judgments, suits, or claims
against him under the old name. The reason assigned for
the change appears to be sufficient and "not inconsistent
with the public interest." Accordingly, in the language of
the statutes, we find the showing "satisfactory."

Due notice having been given, no opposition having been
offered, and no reason to the contrary appearing, it is
hereby considered and decreed that the name of Paisach
Narodezky be, and the same hereby is, changed to Paul
Norman by which name the petitioner shall hereafter be
known, the same as if it had been duly given him at baptism ;
and that he pay the costs of this proceeding.^

'In re Snook, 2 Hilt., 566; Matter of Hamilton, 10 Abb. N. Cas., 79.

* Upon a similar petition by Peter Ohio Nangle (Cause No. 732),
the court rendered the following decree on April 18, 1919 :

This cause comes on for hearing upon the petition and the evidence,
upon consideration whereof the Court finds:

1. That the petitioner is a citizen of the United States, having
been born at Columbus, Ohio, on April 7, 1895;

2. That the petitioner was christened under the name of Peter
Ohio Nangle but during a portion of his early life and subsequently
he was known by the name of John William Cotter, which was that
of his god-father;

3. That under said last mentioned name the petitioner was married
and is known by that name in the community where he lives;

4. That notice of his application to change his name from that
under which he was christened to the one last mentioned has been
duly published and that ample time has been given for objection or
opposition to such change;

5. That no reason appears why said change of name should not

14008 O. W. 52

818 I EXTRATERRITORIAL CASES.

IN THE UNITED STATES COURT FOR CHINA.

John Layton Company (a Corporation), Complainant, v.
Carl Blomberg, Respondent.

[Cause No. 657; filed December 3, 1918.]

SYLLABUS.
(By the Editor.)

1. INJUNCTIONS: CONTEMPT. EVIDENCE equivalent to that required

for conviction of crime is necessary in order to establish the
violation of an injunction.

2. CONTRACTS: RESTRAINT OF TRADE: TESTS. Limits of time and area

are no longer the controlling tests of validity for contracts in
restraint of trade; the test of reasonableness,, as regards the
business in question, applied.

3. Id. : Divisibility. A prohibition of entering at any time ,anywhere

in China, other similar employment in a business of which the
employer has but one plant, is indivisible and \mreasonable ;
but a prohibition of divulging trade secrets is separable from
the above and enforceable.

Messrs. Jernigan, Fessenden & Rose, Geoffrey H. Wright,
H. G. C. Bailey, and R. T. Bryan, Jr., for complainant.

Ralph A. Frost, Esq., and Messrs. Fleming & Davies, forj
respondent.

Lobingier, J.:

The bill in this cause prayed the enforcement by in-
junction of a contract by which the respondent

"agrees that he will at no time without the written consent of saidj
Employer either in his own behalf or any person or company other]
than said Employer or said International Export Company, enter]
into any business in China in any way connected with or pertaininf
to eggs or poultry or any other kind of business transacted by orj
in behalf of the International Export Company and that he will not
give out any information to any one other than the Employer anc

be effected and that sufficient reasons appear from the evidence that
it would be to the petitioner's advantage to effect such change.

It is accordingly considered and decreed that the name of Peter
Ohio Nangle be and the same hereby is changed to that of John
William Cotter, by which name the petitioner shall hereafter be
known the same as if it had been duly given him at baptism.
Cf., In re Pfeffer, Cause No. 848.

JOHN LAYTON CO. V, BLOMBERG, DEC. 3, 1918. 819

said International Export Company or the duly ci'edited representa-
tives of them or either of them in respect of any branch of the egg
or poultry business in China or any other kind of business transacted
by the Employer or the International Export Company.

If the employee shall at any time wilfully neglect or refuse or in
any way prove himself dishonest or untrustworthy or from any other
cause shall not satisfactorily carry out his duties, of which breach,
incompetency, unsatisfactory conduct, insubordination or disobedience
the Employer shall be the sole judge and whose decision shall be
binding and conclusive, the Employer shall be at liberty to dismiss
him and terminate this contract and pay to said employee the portion
of salary due to him for the time actually served up to the date of
his dismissal."

The bill alleged complainant's dismissal of respondent,
the latter's acceptance of employment by a rival firm and
that

"by so doing the defendant caused and is causing great and irrepa-
rable damage to the plaintiff."

Principally upon the strength of this last averment and
after an ex parte hearing, the court, in order to preserve
the status quo ante during the brief period which should
elapse before the cause could be heard upon its merits,
granted on June 6, 1918, a temporary injunction

"restraining the respondent from continuing in the employ of
any one in Hankow other than complainant and the International
Export Company whose business is in any way connected with eggs
or poultry." ^

The answer filed on June 20, alleges that respondent's
dismissal was wrongful, denies that his present employer
is a business rival and finally avers

"that the clause of said agreement which provides that 'he (the
defendant) will at no time without the written consent of said em-
ployer (the plaintiff) or said International Export Company, enter
into any business in China in any way connected with or pertaining
to eggs or poultry or any other kind of business transacted by or
in behalf of the International Export Company,' is in restraint of
trade, contrary to public policy, illegal and void; and (6) that the
clause in said agreement which provides in substance that the em-
ployer (the plaintiff) shall be the sole judge and that its decision
shall be binding and conclusive on questions of alleged misconduct,
neglect or breach of the agreement on the part of the defendant, is
contrary to public policy, illegal and void."

^ See ante, p. 762.

820 I EXTRATERRITORIAL CASES.

Previous to the hearing, complainant offered certain
affidavits in support of a claim, made orally in open court,
that respondent had violated the terms of the injunction.
But as no formal motion for an order to show cause w^as
presented, said claim was heard in connection with the
hearing on the merits and both parties were given op-
portunity to present evidence thereon.

Aside from the affidavits, which are mainly to the effect
that respondent was seen upon the premises of his em-
ployer after the service of the order of injunction (which
did not prohibit him therefrom), a Chinese mason named
Wong Her Gee testified that on the night of June 10, two
days after the service of the order, the respondent gave
directions to the witness and others regarding the placing
of two layers of brick on the premises of respondent's em-
ployer. On cross-examination he admitted that a certain
clerk told him that respondent had given orders to work
at night. A Chinese coolie also testified to orders by re-
spondent but on cross-examination admitted that he did not
hear them given. On the other hand, respondent states
positively that he did nothing in the way of "working,
giving orders or constructing" after the service of the order ;
and we must find the evidence of violation insufficient under
a well known rule which has been thus stated in a work ^
of authority :

"Proceedings in contempt being in their nature criminal in
character the strict rule of construction applicable to a criminal
prosecution obtains therein, and presumptions and intendments will
not be indulged to sustain a conviction. The guilt must be estab-
lished by clear and satisfactory evidence; a mere preponderance is
not enough. The accusations must be supported by evidence sufficient
to convince the mind of the trior beyond a reasonable doubt of the
actual guilt of the accused."

II.

In granting the temporary injunction we had occasion to
observe —

"It is no longer the rule either in England or America that a
contract by which one party agrees not to engage in a certain
business for a limited time within even an extensive area is void."

' 9 Cyc, 45, 46.

JOHN LAYTON CO. V. BLOMBERG, DEC. 3, 1918. 821

Neither the able and exhaustive argument of counsel in
this case nor our own subsequent researches have given us
any reason for qualifying that statement of the law. But
the prohibition above quoted from the contract is not, it will
be seen, "for a limited time." On the contrary the re-
spondent agreed that he would "at no time * * * enter
into any business in China," etc. The authority ^ chiefly
relied upon by complainant in oral argument and cited in
the former opinion upheld a contract unlimited in area
but limited in time to twenty-five years.

On the other hand, H. B. M. Supreme Court in China *
refused an injunction to enforce as to other ports than
Shanghai an agreement by an employee not to enter for
ten years into the service of any other person in Shanghai
or any other place where the employer might have a branch
business.

However, it seems now to be well recognized that the
former tests by limits have lost their importance. As was
said in a case ■' in which this Court declined to uphold a
clause forbidding a retiring member of the pilots' associa-
tion to pursue his calling for a period of two years, it is
neither the duration of the contract nor the area over
which it is meant to extend which constitutes the deter-
mining factor as regards its validity; they are merely
elements in the general consideration of its reasonableness.^

An English work of authority '^ summarizes the result of
the "all important decision" ^ by the House of Lords above
cited, as follows:

"1. The old rule distinguishing between general and particular
restraints has ceased to afford the practical test, which is now in
all cases the reasonableness of the covenant i/a the interests of the
covenantee.

' Nordenfelt v. Maxim etc. Co. Ltd., 1894, A. C. 535.

'Hall & Holtz Ltd. v. Tozer, North China Herald, LXXX, 54, 94
(July, 1906).

° Woosung-Hankow Pilots' Association v. Butland, ante, p. 270.

' Citing Anson on Contracts, 230.

' Matthews & Adler, Covenants in Restraint of Trade (2nd ed.,
1907), 63.

'Nordenfelt v. Maxim etc. Co. Ltd., 1894, A. C. 535.

g22 I EXTRATERRITORIAL CASES.

"2< In weighing the reasonableness of the restraint regard must
be had to the following considerations:

"(a) The generality of the covenant, whether as to time or space,
may i-ender it unreasonable. A covenant is not necessarily valid
because restricted as to time, but may be void because it is not so
restricted.

"(6) Different degrees of protection are reasonable in different
cases; e. g., in the sale of a trade secret, sale of goodwill, or dis-
solution of partnership and contracts of service respectively. A
trade secret needs absolute protection, and there is greater freedom
of negotiation in the case of the sale of goodwill than in cases of
apprenticeship.

"(c) The reasonableness of the restriction must be judged by the
character and nature of the business or its customers."

One of the authorities ^ presented by complainant's
counsel contains the following discussion on this point:

"No better test can be applied to the question whether a particular
contract is reasonable than by considering whether the restraint is
such only as to afford a fair protection to the interests of the party
in favor of whom it is given, and not so large as to interfere with
the interests of the public. Whatever restraint is larger than the
necessary protection of the party can be of no benefit to either; it
can be only oppressive, and if oppressive it is, in the eye of the law,
unreasonable.^"

"The covenant is inserted only to protect one of the parties from
the injury which, in the execution of the contract or enjoyment of
its fruits, he may suffer from the unrestrained competition of others.
The main purpose of the contract suggests the measure of protection
needed, and furnishes a sufficiently uniform standard by which the
validity of such restraints may be judicially determined. In such a ,
case, if the restraint exceeds the necessity presented by the Tnadn
purpose of the contract, it is void for two reasons : first, because it
oppresses the covenantor, without any corresponding benefit to the
covenantee; and, second, because it tends to a monopoly. It may
be added that even though there is an apparent main lawful purpose,
yet if the obvious purpose and necessary result of the contract are
to establish a monopoly, the contract is void.

"The validity of the contract should be determined not by what ,
has been done under it, but by what may be done under it; by what
will be its real tendency with reference to trade and monopoly when
in full operation."

Applying to this case the foregoing tests we may now
inquire,

° Ruling Case Law, VI, sec. 194, p. 789.

^^ Citing Harrison v. Glucose Sugar Refining Co., 116 Fed., 304,
58 L. R. A., 915, and other cases.

JOHN LAYTON CO. V. BLOMBERG, DEC. 3, 1918. 823

1. What feature of complainant's business needs the pro-
tection of the clause prohibiting respondent from entering
into similar business anywhere in China at any time? The
evidence discloses but one plant of complainant in China
and that at Hankow. In the case " already cited from
H. B. M. Supreme Court in China, the agreement not to
enter for a period of ten years into the service of any
other person in Shanghai where the employer might have
a branch business, was held unreasonable, as to all except
Shanghai, in the absence of proof that branches had been
opened elsewhere.

2. What of "the character and nature of the business
or of its customers?" Complainant's customers are ap-
parently not found in China at all for its business appears
to consist in manufacturing its product and shipping it
to outside countries. No evidence has been produced which
would justify us in finding that complainant would suffer
any loss of custom whatever thru the mere fact of re-
spondent's employment by a concern engaged in similar
business in Shanghai or Tientsin. Indeed if we are to
accept the estimate given by complainant's local manager
as to the quality of respondent's services, the result would
be quite the contrary.

On the other hand, the literal enforcement of the clause
renders respondent wholly useless for the balance of his
life to the development in China of an important industry.
This, as recited in the works above quoted, is not only
oppressive to him but tends to prejudice the public. It is
suggested indeed that the commercial area of China is after
all quite limited; but it appears that this particular
business is already conducted in various parts of the coun-
try. Moreover, to repeat a portion of the language above
quoted, we must consider "what may be done" and it re-
quires little stretch of the imagination to conceive that
industries of this class may in time become not only ex-
tensive but very numerous in a country of such vast extent
as China.

In the oral argument complainant's counsel cited no

"Hall & Holtz, Ltd., v. Tozer, North China Herald, LXXX, 94
(July, 1906).

824 I EXTRATERRITORIAL CASES.

case where a contract unlimited in time and covering an
area as extensive as this was upheld. In an able and
exhaustive brief presented since the trial various author-
ities are cited on the main proposition but none of them
conflicts with the rule of "reasonableness" announced above.
The facts in each of them differ widely from those of this
record.

In the one Supreme Court decision " cited on this point
it was found that the business extended over a number
of states and a sale of the goodwill with an agreement
not to reengage in the business was enforced, the court
thus applying the rule we have followed:

"Public welfare is first considered, and if it be not involved, and
the restraint upon one party is not greater than protection to the
other requires, the contract may be sustained. The question is
whether, under the particular circumstances of the case, and the
nature of the particular contract involved in it, the contract is, or
is not, unreasonable.

Two of three cases cited by court are English.^-

In what complainant's counsel say is the latest decision ^'

which they have found and which, it is claimed, "supports;

our contention to the fullest degree" the court emphasizes!

the extent of the business which had been sold as follows:

"At the time of the sale, when appellee's business in diggers was]
five years old and in augers two, it had marketed these articles in '
thirty-four of the United States and in two Canadian provinces.
* * * By reasonable attention the trade could be expected to j
extend 'throughout all parts of the United States and Canada where]
augers and diggers can be used.' So it is evident that appellee wasj
selling and was covenanting to protect a national and international]
goodwill."

The court then states the precise rule we have applied
here, viz.,

"A restraint of 500 miles and 50 years on a village doctor, who!
had only a local practice, would be unreasonable, because not reason-]
ably necessary to the protection of his successor, while a general
covenant by Pears Soap Company should be enforced (at least toj

" Fowle v. Park, 131 U. S., 88, 33 L. ed., 67.
""Rousillon V. Rousillon, L. R. 14 Ch. Div., 351; Leather Cloth Co.
V. Lorsont, L. R. 9 Eq., 345.

" Hall Mfg. Co. V. Western Steel & Iron Works, 227 Fed., 588.

JOHN LAYTON CO. V. BLOMBERG, DEC. 3, 1918. 825

the extent of the decreeing court's reach) because the goodwill of
the business is world-wide and of expected indefinite continuance."

In another case " the trial court, whose decree was
affirmed, spoke of "the wide area over which business was
transacted" and found that "the firm had built up a
business extending practically throughout the country."
The Court of Appeals merely rejected appellant's conten-
tion that the seller's agreement not to reengage in the
business was

"broader than necessary to protect the complainant in the reasonable
enjoyment of the business purchased, upon the ground that the proofs
do not show that the business in question was, at the time of the
purchase of appellant's interest, conducted throughout the entire
United States."

Nothing in this conflicts with the doctrine we have stated.

In the case ^^ which complainant cites as the first of
those "where there is no limit as to time or territory" the
court merely sustained on demurrer complainant's claim,

"That a restrictive covenant, made by one capable of contracting,
which is unlimited as to time, and in area covers the entire United
States, and is ancillary to the main lawful contract, being in part
consideration of the goodwill sold, and is reasonable, and is no broader
than is necessary to save to the covenantee the rights and privileges
for which he has paid, may be enforced."

In a case ^*^ which turned largely upon the question of
unlawful combination the contract is not set out in full
but respondent's contention was not disputed that the
real purpose of the sale there involved was to "control
the business of buying, importing and selling fruit through-
out the United States."

In the last '^ of complainant's citations on this point
the court deduces from various authorities the same rule
which we have derived, viz.,

"With respect to the territory to which the restriction should apply,
the rule has always been that it might extend to the limits wherein
the plaintiff's trade would be likely to go."

" Frame v. Ferrell, 166 Fed. 702.

" Nat. Enameling etc. Co. v, Haberman, 120 Fed. 415.
" Canors-McConnell Co. v. McConnell, 140 Fed. 412.
" Knapp v. S. Jarvis Adams Co., 135 Fed. 1008.

g26 I EXTRATERRITORIAL CASES.

Surely nothing in this record would justify the enforce-
ment of this contract as to all China under such a rule.
As to all of these cases it is to be observed then:

1. The business in question was conducted over an ex-
tensive area and the contract merely folloived the business.

2. The doctrine applied invariably was the doctrine of
reasonableness which we have adopted.

3. The contracts enforced were not mere contracts of
employment but sales of the good will of the business.

For respondent's contract is in the nature what one of the
authorities above calls an "apprenticeship" regarding which
it is said there is not the same freedom of negotiation
as in the sale of goodwill. In other words, if respondent
had been conducting a rival business which he had sold
upon a sufficient consideration to complainant with an
incidental agreement not to engage again in the same
business in China, there would have been more reason for
its literal enforcement. But here respondent sold nothing.
He merely engaged at the very moderate salary of $200
a month to serve complainant under what purports to be
an arrangement terminable at complainant's will.

Counsel admit that they have "been unable to find a
case where a contract of employment like ours has been
construed by the Federal Courts." Necessarily, then, the
alleged conflict between the doctrine of those courts and
what counsel in argument called the "English rule" has not
been established. The one case ^^ which they cite relates to
a contract of employment for two years only, on a restricted
laundry route in a single city — surely a very different
situation.

On the whole, we are unable to find that the clause here
invoked meets the tests of reasonableness imposed by the
authorities, and after reviewing them we are forced to
the conclusion that said clause "exceeds the necessity pre-
sented by the main purpose of the contract."

" Eureka Laundry Co. v. Long, 146 Wis., 205, 131 N. W., 412, 35
L. R. A. (N. S.), 119.

JOHN LAYTON CO. V. BLOMBERG, DEC. 3, 1918. 827

III.

In granting the temporary injunction we referred to
the rule that where "the contract is divisible it may be
enforced locally even tho the provisions as to a larger
area are not upheld." This doctrine is well recognized in
England ^^ and it was thereunder that in the case above
cited H. B. M. Supreme Court in China was able to seg-
regate the prohibition regarding Shanghai from that
relating to any other place where complainants might have
a branch business. In the decision -'^ on this point cited
in our former opinion and now invoked by counsel for
complainant, the Supreme Court, applying the same doc-
trine, upheld that portion of the contract in judgment which
related to one state tho in fact another state was included.

Counsel assert "that there is no conjunctive word used,"
etc. ; but the contract bound the steamship company not
to operate on the "waters of the state of California or the
Columbia river." On the authority of English decisions
construing similar clauses ^^ the Supreme Court held this
contract divisible, saying:

"This stipulation excluded the steamer from the territory covered
by the former stipulation exacted by the California Company, and
also from the territory occupied by the Oregon Company itself. The
latter portion of the stipulation stands on the same ground and reason
as did the first stipulation between the California and Oregon Com-
panies."

It is true that the court enforced the contract for only
a part of the stipulated period but it did so because that
part related to the Oregon branch of the contract which
it found divisible from the California branch. The court
upheld the seven year provision for the Oregon branch only
because the latter was severable from the former. In
other words the division was primarily territorial and not

" Matthews & Adler, Covenants in Restraint of Trade (2d ed.,
1907), Ch. IV.

'° Oregon Steam Nav. Co. v. Winsor, 20 Wall., 64, 22 L. ed., 315.

" E. g., in Price v. Green, 16 M. & W., 346, where the contract
excluded "London or within 600 miles thereof."

828 I EXTRATERRITORIAL CASES.

temporal and the latter was merely a corollary from the
former.

Counsel admit that the Supreme Court "cite some English
decisions in support of their opinion." The fact is that
out of eight cases cited in the opinion all save two are
English and those two are cited on a minor point. In-
stead of a conflict such as counsel suggest between "the
English Courts and our Federal Courts" the English
cases are the only ones upon which the Supreme Court
assumes to base its main conclusions and a review of those
cases would seem to be in order.

Where a tailor's employee engaged not to carry on "any
business whatsoever within the distance of one mile of"
the employer's establishment for a period of two years,
the court said in denying an injunction:

"If the plaintiff's argument be good, therr in every such case the
Court could carve out of the unreasonable distance a distance which
would be reasonable. Thus if the covenant were, e. g., not to carry
on a business in any part of the whole world, the court would be asked
to uphold it by construing it as a covenant not to carry on the busi-
ness within, say, a limit of 2 miles, which would in effect be making
a new covenant, not that to which the parties agreed." "

The sam.e course was taken where the employee had
agreed "that he would not be in any way connected with
any other business within three miles," Byrne, J., holding
that the phrase "any other business" was not divisible.**

Where the employee, also a tailor,

"bound himself not to enter into any business arrangement in com-
petition with or that would in any way interfere with the business
carried on by the plaintiff at his establishments in Weybridge or the
city of London, or at any of his addresses of the future," "

Lord Alverstone, in giving judgment,

"said that the Court could not break up covenants of this sort, unless
after severance an enforceable contract remained; and here the words
'will not enter into any business arrangement in competition with
the plaintiff' were too wide both as to time and as to space, and too
vague. There was no residuum not open to objection that the Court
could enforce."

^ Baker v. Hedgecock, 39 Ch. Div., 520 (1888).
"Woods v. Thornburn, 103 L. T. J., 421.
"Beetham v. Fraser, 21 T. K. R., 8 (1904).

JOHN LAYTON CO. V. BLOMBERG, DEC. 3, 1918. 829

So where the clause read "30 miles from either the Town
Hall at Bournemouth or the Bargate at Southampton" it
was held indivisible.-^

The doctrine of these cases has been summarized as
follows :

"The covenant must, however, be so expressed that it is severable
without malcing a new contract between the parties for the sake of
validating an instrument otherwise void; the test is, whether it can
be stated as two or more distinct covenants.

"It is not permissible to sever a proviso from the rest of the
covenant when the proviso affects the meaning of the whole; and
one part of a covenant may not be severed from another unless an
enforceable contract remains." ^'

The Supreme Court having followed the English doctrine
it would not matter what the inferior Federal courts might
hold tho a 'priori it would be strange indeed if any of
the latter should differ from the former. But the two
cases cited by counsel announce no doctrine which, in our
judgment, conflicts with that of either the Supreme Court
or the English Cases. In the first -' there was no attempt
to divide the contract because the court considered that
it was valid as a whole, and limited to one country instead
of being, as was contended, unlimited. In the second ^^
the question of divisibility does not seem to be touched upon.

Nor do we find any different doctrine announced by the
state courts. On the contrary

"It is a recognized principle that when a contract is or can be
so separated in parts as to constitute two agreements, one illegal
and the other legal, the latter may be enforced, and the transaction
pro tanto sustained. But it is otherwise where the contract in its
nature is not divisible." ^

'"Hooper & Ashey v. Willis, 21 T. L. R., 691, affirmed 22 T. L. R.
451.

'" Halsbury's Laws of England 27, 574, 575. Of. American &
English Encyc. of Law (2d ed.), XXIV, 855, 856, citing numerous
cases English and American.

" Frame v. Ferrel, 166 Fed., 702.

"* Hall Mfg. Co. V. Western Steel & Iron Works, 227 Fed., 588.

" Consumers' Oil Co. v. Nunnemaker, 142 Ind., 560, 41 N. E., 1048.
See also Wiley v. Baumgardner, 97 Ind., 66; Beard v. Dennis, 6 Ind,,
200.

830 I EXTRATERRITORIAL CASES.

If the contract before us had prohibited respondent from
entering into other employment in Hayikow or elseivhere
it might have been upheld as to Hankow, and it was in
partial contemplation of such a possibility that the tem-
porary injunction, limited to Hankow alone, was granted.
But a study of the contract in the light of the authorities
convinces us that the prohibition as to place of employ-
ment is not divisible.

We are of the opinion, however, that said covenant may
be segregated from certain other clauses of the contract,
e, g., the undertaking that the employee is not "to divulge
any secret * * * which he may receive or obtain
relating to the business," etc. As stated in one of the
authorities above quoted "a trade secret needs absolute
protection," -° and while the testimony in this case fails to
show any specific secret which respondent has so obtained,
still, if there is none such, the prohibition will not pre-
judice him and if, as would be only natural, some such
secret has been learned, complainant is entitled to its con-
cealment.

The answer as we have seen assails the validity of that
clause of the contract which makes the employer "the sole
judge" of whether certain specified grounds of dismissal
have accrued. But in view of the conclusion which we
have reached we consider it unnecessary to enter into a
discussion of that question which, it was intimated in
argument, is now being litigated in another forum. Any-
thing we might say on that point, therefore, would not
only be unnecessary here but might needlessly prejudice
the rights of parties to said proceedings. As none of the
evidence offered under this clause of the answer has been
considered no time need be spent on the first contention
in complainant's brief, viz., that said evidence should not
have been received.

The motion for a new trial is accordingly overruled and
the decree heretofore entered, dissolving the temporary
injunction but enjoining respondent from divulging any

"Matthews and Adler, Covenants in Restraint of Trade (2d ed.,
1907), 64.

IN RE KRISEL, DEC. 6, 1918. 831

secret or giving out any information which he may have
obtained v^hile in complainant's employ relating to its
business or that of the International Export Company and
likely in any way to affect its interests, is confirmed.

IN THE UNITED STATES COURT FOR CHINA.
In re Alexander Krisel.

[Cause No. 705; filed December 6, 1918.]

SYLLABUS.
(By the Court.)

1. DISTRICT ATTORNEY may call to his assistance in special cases

another member of the bar who may act temporarily without
commission or oath.

2. Id. : Disbarment Proceedings may be instituted by another than

the District Attorney.

William S. Fleming, Esq., for respondent's motion.
Robert T. Bryan, Jr., Esq., Special Assistant U. S. Dist.
Atty., contra.

Lobingier, J.:

The respondent moves to quash the motion, in the nature
of an information, on the ground that the one who appears
therein as accuser and who signs and verifies the same
"has not been lawfully appointed Special Assistant United
States District Attorney." It appears from the evidence
that the following document is on file in the office of the
official whose name is attached:

"TO WHOM IT MAY CONCERN:

"This is to certify that I have appointed Robert T. Bryan, Jr.,
Esquire, as Special Assistant District Attorney of the United States
to act for the Government of the United States of America in
criminal proceedings against Jose A. Diaz.

(Sgd.) Chauncey p. Holcomb,
United States District Attorney.
Shanghai, China, July 26, 1918."

The general rule is that a prosecuting attorney has
authority with the approval of the court to employ special

832 I EXTRATERRITORIAL CASES.

counsel to assist him.^ Special assistants for Federal
district attorneys in the United States are expressly ^
provided for whenever in the opinion of the Attorney
General "the public interest requires it." As respondent's
counsel concedes, the Secretary of State must be substituted
for that officer in dealing with the District Attorney for
China. The records of this Court show that the present
Acting and Special District Attorney was originally ap-
pointed by the Court upon authority previously received
from the State Department, which was renewed later at
the request of the regular District Attorney, and that the
former took, subscribed and filed an official oath.

The proceedings referred to in the District Attorney's
letter of appointment of July 26 led not merely to one
prosecution but to seven, in all of which the Special As-
sistant Attorney so appointed appeared as prosecutor with
the full sanction of the Court and without objection by
any one. Later his services were continued and utilized
in other proceedings by the Acting District Attorney who
ultimately prepared and signed the following:

"TO WHOM IT MAY CONCERN:

"This is to inform you that Robert T. Bryan, Jr., is the Special
Assistant United States District Attorney of the United States
Court for China."

This was not, as suggested by respondent's counsel, the
delegation of delegated power; for, as has been said, the
State Department was the direct source of the Acting, as
well as of the regular, District Attorney's authority. It
was rather the statement of a fact and the recognition
of a situation which had existed for some time with the
Court's knowledge and approval. The appointment, in-
deed, was made after the Court had left for sessions on
the circuit so that its formal sanction was not obtained.

' State V. Bezou, 48 La. Ann., 1369, 20 So,, 892; Stave v. Anderson,
29 La. Ann., 774; Sneed v. People, 38 Mich., 348, 251; Am. & Eng.
Encyc. of Law (2d ed.), XXIII, 273.

' U. S. Revised Statutes, sec. 363. The Act of May 28, 1896,
Sess. I, 29 U. S. Stats, at Large, 181, Ch. 252, sec. 8, cited by re-
spondent's counsel, refers to regular assistant district attorneys and
not special ones as in this case.

IN RE KRISEL, DEC. 6, 1918. 833

But upon its return, learning of the appointment, the
Court was pleased to approve it and to utilize the special
attorney so designated in making certain investigations,
the regular District Attorney having meanwhile gone on
leave. But such formalities as commissions and oaths,
however necessary they may be for the regular incumbents
of an office, especially where compensation from public
funds is involved, have not usually been required for those
whose employment is by its very terms casual and tem-
porary. Recently at Tientsin the Court had occasion in-
formally to call upon the Judge Advocate of the Army
to act as Prosecuting Attorney and previously Special
Attorneys had been named either by the Judge or the
District Attorney without oath or commission. Respond-
ent's counsel states that when he was Special United States
Attorney he thinks he was given a written appointment
by the Court and he thinks that he filed a written
oath. A careful search by the staff of this Court fails to
disclose either but does disclose a letter written to said
counsel by the then regular District Attorney (Dr.
Hinckley) , reciting that the former

"took charge at my request of prosecutions in two actions for forgery
against P. A. Grimes,"

and expressing the opinion that

"the authority of this office under the Statutes extends to engaging
such assistance."

The implication seems plain that no other authority was
invoked in that instance and it was manifestly less formal
than that of the present accuser.

II.

We have said this much in justice to the Special Assist-
ant District Attorney whose authority to sign as such has
been challenged and of whose right thus to appear we have
no doubt. But we are equally convinced that it would
have made no difference in this instance if he had not
been originally appointed by the regular District Attorney
nor his services utilized and continued by the Acting and
Special District Attorney with the knowledge and sanc-

14008 O. W. 53

834 I EXTRATERRITORIAL CASES.

tion of the Court. For the statute under which this pro-
ceeding is brought expressly provides that where the facts
are not within the knowledge of the court the proceeding
"may be taken upon the information of another." ^ This
would not even require the moving party to be an attorney-
at-law, and if respondent's contention were sound the only
effect would be to treat the phrase "Special Assistant
United States District Attorney" as surplusage just as
respondent now asks us to treat a part of the information.
For respondent's inquiry as to who is his accuser is an-
swered by the information itself in which the party who
signs and verifies it "accuses Alexander Krisel," etc.

We cannot, therefore, regard this motion as a merito-
rious one and as it avowedly does not affect the merits of
the case and as the accuser's capacity, whatever it might
be, could not prejudice the respondent, the motion is over-
ruled.

III.

Respondent also files a motion to strike from the in-
formation the following excerpt from the charge to the
jury in H. B. M. Supreme Court in the cause in which,
it is alleged, another was convicted for following respond-
ent's advice:

"Now we come to Mr. Krisel. Mr. Ki'isel's evidence is undoubt-
edly in favor of the accused. If you were to follow Mr. Krisel's
evidence it seems to me you would be pretty well bound to acquit
the accused. The Crown Advocate did not refer to him in his reply,
nor did Mr. Jenkin, and I think that it was perhaps a wise for-
bearance on Mr. Jenkin's part that he did not do so. You will
feel at once that if, altho he happens to be a witness for the Crown,
he was the accused's own lawyer, you ought not to be asked to treat
him as hostile to the accused, as a witness for the Crown and so
to follow implicitly what he said in order to discredit the case for
the Crown. He was wisely left out. If he is left out, we are
reduced to the evidence of one witness, and that is Sergt. Woodfield."

We are of the opinion that this is evidence rather than a
proper part of the information. It is true that the Supreme

'Act of Congress of June 6, 1900, Sess. I, 31 U. S. Stats, at
Large, 450, Ch. 786, Tit. II, sec. 744.

IN RE KRISEL, DEC. 6, 1918. 835

Court has held * that formal pleadings are not required
in disbarment proceedings. That, however, was before the
enactment of the statute just cited, and where, as here,
the proceeding was instituted by a formal pleading it
seems better, in order to avoid making unwise precedents,
to follow the settled rules. The motion to strike is there-
fore sustained but without prejudice to the admissibility
in evidence of the matter therein specified.

Respondent's application for an extension of time to
December 10 for answer is also granted.

On December 10, 1918, the following order was entered in the
same cause:

A demurrer to the information is here interposed and from the oral
argument of counsel it appears that the basis of the first two grounds
is the contention that the deceit and misconduct which will justify
disbarment must have been committed in the course of professional
employment and toward a client. We find, however, that the Court of
Appeals has rejected this contention in a decision which contrues the
identical statute under which this proceeding is brought, saying —

"it is contended that the 'misconduct' of an attorney referred to in
section 743 is misconduct in his relation to his client only, and not
misconduct in his relation to the court. We find no ground for placing
so narrow a construction of the statute. An attorney owes a duty to
the court not less important than his duty to his client, and misconduct
toward the judge, whether in or out of court, is not less reprehensible
than misconduct toward the client. But if, indeed, the offense with
which the plaintiff in error is charged is not among those enumerated
in the statute, the court is not by such enumeration deprived of its
inherent power to suspend or disbar an attorney for such unprofes-
sional conduct as renders him unworthy to be a member of the bar." ^

For—

"It is not only for professional or official misconduct in the capacity
of an attorney that a licensed attorney may be disbarred. An attorney
may be suspended or disbarred for such misconduct unconnected with
his professional duties as shows him to be an unfit and unsafe person
to manage the legal business of others." "

Since, then, misconduct in general is a sufficient ground for disbar-
ment it would seem to be not strictly necessary to allege or prove injury
to some specific person; but the objection here that the information
fails to show "when, how or in respect to whom" the deceit and mis-
conduct were committed appears to be unfounded as the information

"Randall v. Brigham, 7 Wall. (U. S.), 523, 19 L. ed., 285; Ex
parte Wall, 107 U. S., 265, 27 L. ed., 552.

' Cobb V. U. S., 172 Fed., 641. See also In re Terrell, 2 Phil-
ippine, 266; Ex parte Wall, 107 U. S., 265; 27 L. ed., 552.

' Corpus Juris, VI, 599, 600.

836 I EXTRATERRITORIAL CASES.

alleges a series of acts commencing on September 10, 1918, committed
against one Yu Zien Chien and the Standard Oil Company involving
the bribery of the latter's employee and the unlaw^ful taking of its
launch w^ithout its knowledge and to its serious damage.

Another ground of the demurrer is that the charge of false testi-
mony by the respondent is insufficient to justify disbarment, the argu-
ment being that a prior conviction of the offense is necessary. But
this contention is likewise foreclosed by the Federal decisions,^ and
while some of the state courts may hold otherwise ^ it seems doubtful
if even a majority of them support the contention of respondent.'
For, as was observed by one of them in a similar proceeding:

"If the accused made a false professional statement, or swore false,
as specified in the accusation, a conviction of perjury was not necessary
to justify the court in rejecting him from the bar." "

Finding no merit in the demurrer it is overruled, and the order here-
tofore made as to date of answer will stand.

IN THE UNITED STATES COURT FOR CHINA.
MARY M. GuNN, Plaintiff, v. Charles C. Gunn, Defendant.

[Cause No. 706; filed December 13, 1918.]

SYLLABUS.

(By the Court.)

1. DIVORCE: ADULTERY: CORROBORATION of the plaintiff's testimony as

to admissions of adultery by the defendant is not indispensable
where defendant, knowing of the charge against him, fails to
traverse it.

2. Id: Custody of the Children cannot be controlled absolutely by

stipulation between the parties; the interests of the children are
the prime consideration.

Messrs. Rodger & Haskell, by Mr. Rodger, for plaintiff.
M. L. Heen, Esq., for defendant.

" Ex parte Wall, 107 U. S., 265, 27 L. ed., 552 ; hi re Ulmer, 208
Fed., 461, 467.

* B:ckn r v. Ccmmonwealth, 126 Ky., 318; 31 Ky. L. Reporter, 708;
103 S. W., 378.

^ Ex parte Walls, 64 Ind,, 461; Ferry v. Stale, 3 Gie.ne (la.), 550,
and other state decisions referred to in the Federal authorities above
cited.

"Perry v. State, 3 Greene (la.), 550, 552.

GUNN V. GUNN, DEC. 13, 1918. 837

LOBINGIER, J.:

This is a proceeding for divorce on the grounds of adul-
tery, intemperance and cruelty. The answer is in effect a
general denial but the defendant failed to appear at the trial
tho he was represented by counsel. The plaintiff testified
to excessive intemperance and acts amounting to cruel treat-
ment and to admissions by defendant of adulterous relation's
with various women. The only other witness was defend-
ant's counsel whose testimony tended to corroborate rather
than otherwise that of plaintiff, but even had it been un-
corroborated plaintiff's testimony would seem to be suffi-
cient under the circumstances.^

Plaintiff's right to a decree of absolute divorce is not,
however, seriously questioned by defendant's counsel and
the main question in the case is the custody and maintenance
of the three children. A stipulation is presented, signed by
counsel for both parties, agreeing that in the event of di-
vorce two of the children shall be awarded to the plaintiff
and the third to the defendant. But such a stipulation,
while entitled to consideration by the Court, is binding only
so far as it coincides with the interests of the child.- In
this case the child which it is proposed by stipulation to
turn over to the father is but three years old. The father's
home is at Mukden where very few Americans reside and
his habits according to the testimony are such as to make
it very doubtful, to say the least, if he is a proper person
to bring up a child. Even were he otherwise the child's
natural custodian at such an age is its mother. It may be
that when the child is older it can be returned to the custody
of the defendant provided he meanwhile makes a showing
of reform. But that is a matter for future consideration.

'Ruling Case Law, 9, sec. 240; Sylvis v. Sylvis, 11 Colo., 319, 17
Pac, 912; Baker v. Baker, 195 Pa., 407, 46 Atl., 96.

'Lowrey v. Lowrey, 108 Ga., 766, 33 S. E., 421; White v. White,
75 la., 218, 39 N. W., 277; Slattery v. Slattery, 139 la., 419, 116 N.
W.. 608: Pearce v. Pearce. 30 Mont.. 269. 76 Pac, 289; Connett v.
Ccnrett, 81 Neb. 777, 116 N. W. 658.

338 I EXTRATERRITORIAL CASES.

The petition prays for "a reasonable sum of alimony and
also a reasonable sum for maintenance of the said children."
The stipulation contains no provision on that point but
plaintiff at the trial disclaimed any desire for alimony as
such. But the maintenance of the three children of tender
age is another matter and the Court would be derelict in
its duty should the decree fail to provide for them. The
testimony shows that the defendant is earning at least Yen
350 per month with probably other perquisites and it is
fair neither to the children nor to the mother that the
father should assume none of the burden of maintenance.
We are of the opinion that an award of Yen 100 per month
is a very moderate allowance for such a purpose.

A statute in force in this jurisdiction provides:

"Whenever a marriage shall be declared void or dissolved the court
shall have pow^er to further decree as follows:

"First. For the future care and custody of the minor children of
the marriage as it may deem just and proper, having due regard to the
age and sex of such children, and unless otherwise manifestly improper
giving the preference to the party not in fault. * * *

"Fifth. For the appointment of one or more trustees to collect,
receive, expend, manage, or invest, in such manner as the court shall
direct, any sum of money adjudged for the maintenance of the wife or
the nurture and education of minor children committed to her care and
custody." ^

Exercising the authority conferred by this statute as well
as that authorizing an absolute divorce on the ground of
adultery,* it is hereby considered and decreed :

1. That the bonds of matrimony heretofore existing between the
plaintiff and defendant be dissolved; that the plaintiff be granted a
divorce a vinculo matriinonii but that she be not permitted to remarry
within six months from date of this decree and that the defendant be
not permitted to remarry at all.

2. That the plaintiff have the permanent custody of the children
Emalita Mary and Robert William and the temporary custody of the
remaining child Charles Hugh, the latter to be surrendered to the
plaintiff by the defendant forthwith subject to defendant's right to

' Act of Congress of June 6, 1900, Sess. I, 31 U. S. Stats, at Large,
Ch. 786, Tit. II, sec. 472.

'Act of Congress of March 3, 1901, Sess. II, 31 U. S. Stats, at
Large, Ch. 854, sec. 966.

GUNN V. GUNN, DEC. 13, 1918. 839

apply for the return of said last named child at a later time and upon
a showing of reformation on the part of said defendant.

3. That the defendant deposit with the Clerk of this Court each
month the sum of Yen 100 or its equivalent in Mexican currency for
the benefit and maintenance of said children and especially of the
last named child.

4. That the defendant pay the costs of this proceeding.

On February 11, 1919, the following decree was rendered in Lane
V. Lane (Cause No. 726), where the facts were somewhat similar:

This cause comes on for hearing upon the petition and the evidence,
the defendant having failed to answer or otherwise plead tho duly
served with summons and having failed to appear after being called
three times in open court.

The charge of adultery rests upon the testimony of the plaintiff to
a written confession made by the defendant and to his affliction with
a venereal disease. The paper embodying the alleged confession was
also shown to plaintiff's attorney. It appears, moreover, that de-
fendant was informed of this charge against him and had an oppor-
tunity to refute it, of which he has failed to avail himself. As in a
previous case (Gunn v. Gunn, Cause No. 706) such failure must be
treated under the circumstances as corroborating the charge.

Two children of tender age are shown to have been born to the
couple and for the present the wisest disposition of them would seem
to be to leave them with their mother at least until a better arrange-
ment can be made. It appears that the defendant is receiving Tls.
500 a month and plaintiff's claim of Mexican $200 a month for the
support of herself and the children seems not unreasonable under such
circumstances.

It is therefore considered and decreed:

1. That the bonds of matrimony heretofore existing between the
plaintiff and defendant be absolutely dissolved; that the plaintiff be
granted a divorce a vinculo matrimonii but that she be not permitted
to remarry within six months from the date of this decree and that the
defendant be not permitted to remarry at all.

2. That for the present the plaintiff have the custody of the two
children named in the petition but that said arrangement shall be
subject to further order if it appear subsequently that a change in
said custody is to the best interests of said children; and that mean-
while defendant be permitted to visit said children once each day so
long as he conducts himself properly.

3. That the defendant pay to the Clerk of this Court monthly, for
the support of plaintiff and of said children the sum of Mexican .$200;
the distribution of said amount in case of a change of custody as above
indicated to be the subject of further order.

4. That defendant pay the plaintiff's attorney a fee of Tls. 50, and
that the former also pay the costs of this proceeding.

840 I EXTRATERRITORIAL CASES.

IN THE UNITED STATES COURT FOR CHINA.

Chang Quai Ching et al., Appellants, v. Dodge & Seymour
(China), Ltd., Appellee.

[Cause No. 718; filed December 19, 1918.]
SYLLABUS.

(By the Court.)

1. CONTRACTS: EMPLOYMENT: QUANTUM MERUIT. Under the rule pre-

vailing in this and the majority of American jurisdictions an
employee may recover accrued wages regardless of the time of
leaving the employment, the master having the right to counter-
claim in case of wrongful termination.

2. Id. : Id. : Custom must be general and cannot override the provisions

of positive law.

Messrs. Rodger & Haskell, for appellants.
No appearance in this Court for appellee.

LOBINGIER, J.:

On October 4, 1918, five Chinese filed their petition in
the Consular Court for the District of Shanghai alleging
that they had "worked for the defendant company * * *
as mechanic fitters in their motor garage" and that the de-
fendant owed each of them a specified amount of wages of
which it had "absolutely refused payment."

The answer admitted the employment as alleged but
averred :

"that the term of such employment was indefinite but with the right
of terminating the same upon a month's notice as required by local
custom.

"4. That the said plaintiffs in breach of the terms of their said
employment left the employ of the defendant without defendant's
consent and without giving one month's previous notice or any previous
notice of their intention so to do.

"5. That by reason of the acts and conduct of the plaintiffs as
aforesaid they have forfeited all wages then due and claimed in the
petition herein."

The Consular Court rendered judgment in favor of the
leading plaintiff who left at the end of the month but denied
recovery to the four others who now bring their case to
this Court by appeal. We find no evidence in the record
which would justify us in holding that there is any general

CHANG QUAI CHING V. DODGE, DEC. 19, 1918. 841

custom to the effect that an employee for an indefinite term,
such as this is conceded to have been, forfeits accrued wages,
admittedly earned, by leaving upon less than a month's
notice. One witness testifies to such a practice in two
garages and another says that notice of ''at least half a
month is required" in his garage. But this is far from
establishing a general custom thruout the locality. On the
other hand, defendant's former superintendent (Neuborg)
testifies that there is no such custom and that in no previous
instance for the last six years has defendant so refused
payment. Defendant's manager (Haughwout) claims that
there is such a custom but admits that he "can't mention
a specific case" and that the matter "was handled by
Neuborg" who contradicts Haughwout's other claim that
plaintiffs were hired "by the month." There is also a con-
tradiction between Haughwout and several of the plaintiffs
who claim that they gave notice to him some days before
leaving.

"Evidence of isolated instances of a certain course of trade is not
sufficient to establish a usage by which the rights of parties are to be
measured and determined." '

But even if such a custom as defendant alleges had been
established it could not apply here because it conflicts with
the American law in force in this jurisdiction." Nearly a
century ago the Supreme Court of New Hampshire, in
a leading case,^ repudiating

"the technical reasoning that the performance of the whole labor
is a condition precedent, and the right to recover anything dependent
upon it,"

announced a new rule

"binding the employer to pay the value of the service he actually
receives, and the laborer to answer in damages where he does not
complete the entire contract."

This is merely an application of the Scriptural maxim
"The laborer is worthy of his hire" and it is now the general

^Cyc. XII, 1040.

- Id., 1054. Cf. J. Spunt & Co. v. American Machinery & Export
Co., ayite p. 778.

'Britton v. Turner, 6 N. H., 481, 26 Am. Dec, 713 (1834).

842 I EXTRATERRITORIAL CASES.

rule in America * including the Federal Courts.^ Under it
plaintiffs are entitled to recover their wages for the time
they actually worked and defendant would have been entitled
to plead a counter-claim for any damage which actually re-
sulted from plaintiffs' departure. No such counter-claim
was pleaded, however, and no reason appears why plaintiffs
should not have the full amounts due them. The amounts,
indeed, are small but that is all the more reason why they
should have been paid promptly. There is some suggestion
in the testimony that plaintiffs left to join a rival concern
but as their employment was admittedly indefinite this
would afford no excuse, legal or moral, for withholding their
wages. In view of the long delay we feel that plaintiffs
are also entitled to interest from the date when they should
have been paid."

The judgment of the Consular Court is accordingly re-
versed as to all of the appellants and it is further considered
and adjudged that each of them have and recover from de-
fendant the full amount claimed by each in the joint petition
with interest thereon at six per cent per annum from the
date of terminating the employment, and his proportion of
the costs of both courts.

IN THE UNITED STATES COURT FOR CHINA.
In re John Kavanaugh's Estate.

[Cause No. 715; filed December 23, 1918.]

SYLLABUS.
(By the Court.)

I.WILLS: Holographic wills are those written entirely in the hand-
writing of the testator or at least containing sufficient matter
so written as to constitute a complete instrument.

* Page on Contracts, III, sec. 1604, and see Steiner v. Frazar & Co.,
ante, p. 249.

' McDonough v. Evans Marble Co., 112 Fed., 634, referring to it as
"the more modern rule laid down in Britton v. Turner, 6 N. H., 481,
26 Am. Dec, 713, and followed by the great weight of authority in this
country since."

" Act of Congress of March 3, 1901, 31 U. S. Stats, at Large, Sess,
II, Ch. 854, sees. 1184, 1185; cf. Act of Congress of June 6, 1900, 31
U. S. Stats, at Large, Sess. I, Ch. 786, Tit. Ill, sec. 255.

IN RE KAVANAUGH'S ESTATE, DEC. 23, 1918. 843

2. Id. : Where the instrument is partly printed and partly written

and the latter portion is not complete in itself it is not entitled
to probate.

3. Id. : Administration. In such a case ordinary letters of adminis-

tration will be issued and the estate administered according
to the rules of intestate succession.

LOBINGIER, /. ;

An instrument is presented for probate as the last will
and testament of the late John Kavanaugh. It consists of
a printed blank with insertions in the handwriting of the
said deceased and is signed by him but not witnessed.

This Court has probated holographic wills ^ but such a
will is defined as one written entirely by the deceased.^
Where the instrument was, as here, partly so written and
partly printed, but unattested, probate was denied, the
court saying:

"The paper before us was not entirely written by the hand of the
deceased. Portions of it were printed. The Legislature has seen fit
to prescribe forms requisite to an olographic will, and these forms
are made necessary to be observed. It was strenuously urged before
us that the portions of the paper which were written by the de-
ceased should be admitted to probate, omitting the printed portions.
We are not at liberty to so hold. We should, thereby, in effect, change
the statute, and make it read that such portions of an instrument
as are in the handwriting of the deceased constitute an olographic
will. The instrument, in its entirety, is before us. It was not en-
tirely written by the hand of the deceased." '

There is, indeed, some authority * for the proposition that
where the handwritten portion is complete in itself it may
be considered as sufficient and the printed part rejected as

^ In re Allen's Will, ante, p. 92; In re Lucy Lucker's Will, ante,
p. 626.

'Louisiana. Heirs of Williams v. Hardy, 15 La. Ann. 286.

Mississippi. Davis v. Williams, 57 Miss. 843.

Tennessee. Tate v. Tate, 11 Humph. 464.

Virginia. Gibson v. Gibson, 28 Gratt. 44.

Cyc. XL, 996, 1129.

' Estate of Rand, 61 Cal. 468, 44 Am. Rep., 555. See also Estate
of Billings, 64 Cal. 427; Estate of Plumel, 151 Cal. 77, 121 Am. St.
Rep., 100.

* Heirs of McMichael v. Bankston, 24 La. Ann. 451 ; Baker v.
Brown, 83 Miss. 793, 36 So. 539.

344 I EXTRATERRITORIAL CASES.

surplusage. But this is contrary to the decision above
quoted and it would make no difference here for the hand-
written portions are not complete and would constitute no
intelligible instrument if considered apart from the printed
portion.

We have no alternative, therefore, but to hold that the
instrument ° before us is not entitled to probate but the
petition, which prays the appointment of an administrator
cum testamento annexo, may be granted to the extent of
issuing ordinary letters of administration.

We find from the evidence :

1. That the deceased was a citizen of the United States of America
who died at Manila, Philippines, on October 21, 1918.

2. That at the time of his death he was a resident of Shanghai,
China, and had property within the territorial jurisdiction of this
Court of greater value than $500 United States currency;

3. That Howard Upton, Esquire, a brother-in-law of the deceased
and whose appointment is asked by the latter's widow, is the proper
one to be appointed administrator.

It is accordingly considered and decreed that Letters of Adminis-
tration issue to the said Howard Upton upon his taking the oath,
submitting himself to the jurisdiction of this Court, and executing a
bond as required by law.

IN THE UNITED STATES COURT FOR CHINA.

In re John Wright Davis' Will, Cause No. 573; In re
Alice Parker Davis' Estate, Cause No. 633.

[Filed January 20, 1919.]

SYLLABUS.

(By the Court.)

1. EVIDENCE: PRESUMPTIONS. Marital status once shown to exist is

pi'esumed to continue and any person, especially a female, is
presumed to be unmarried in the absence of proof to the con-
trary.

2. WILLS: Interpretation. Under the maxim Nemo haeres viventis

est a bequest to a person "or his heirs" is equivalent to a be-
quest to him if he is living.
3. Id.: Id. Where a brother and a sister are named in a will as "my
two children" and are made the sole beneficiaries, and the latter

" A valid will was afterward discovered and probated.

IN RE DAVIS' WILL, JAN. 20, 1919. 845

dies intestate before distribution, the former takes her entire
estate including her share under the will.

LOBINGIER, /. ;

Petitions are presented in each of these causes for leave
to make final distribution and for the personal represen-
tative's discharge, the latter claiming as the distributee in
each instance. The will heretofore admitted to probate in
Cause No. 573 bequeaths the entire estate "into two equal
parts * * * to each of my two children, John Ker
Davis and Alice Parker Davis." It further provides :

"In case Alice should die unmarried let the entire property be
given to John Ker or his heirs i. e. widow or child or children.

"In case Alice should marry and die leaving child or children said
child or children shall receive Alice's share."

Alice Parker Davis died intestate, according to proof
on file, in November, 1917, and it is her estate which is being
administered as Cause No. 633. From the language of the
will above quoted it is evident that at the date of its execu-
tion, October 10, 1912, she was unmarried and while there
is no other express proof that she so continued at the time
of her death the rule is that a status once proven to exist con-
tinues ^ — a presumption which is strengthened in this case
by the fact that she was still known by her maiden name
at the time of her death. Moreover, anyone,- particularly a
female,^ is presumed to be unmarried unless the contrary
appears. Under the express terms of the will, therefore,
what would have been her share passes to her brother **or
his heir's," but in view of the maxim Nemo haeres viventis
est * this phrase is equivalent to bequeathing the property
to the brother in case he is living. The designation in the
will of the brother and sister as "my two children" also
appears to be sufficient proof of the petitioner's averment
that he is her surviving next of kin.

' Moore v. Ry. Co., 173 Mass., 335, 53 N. E., 816, Thayer's Cases, 51.
"■ Lackland v. Nevins, 3 Mo. App., 336 ; Gaunt v. State, 50 N. J. L.,
490.

' People V. Martinez, 13 Porto Rico, 246.
'Broom's Legal Maxims (8th ed.), 522.

846 I EXTRATERRITORIAL CASES.

The statute which governs distribution in such cases reads
as follows:

"If there be a brother or sister, or child or descendant of a brother
or sister, and no child, descendant, or father or mother of the in-
testate, the said brother, sister, or child or descendant of a brother
or sister shall have the whole." ^

The brother being one of the two original beneficiaries
named in the will, with a contingent interest in his sister's
share, and she having died meanwhile without issue, it is
evident from the foregoing that he is entitled to the entire
assets of both estates.

It is accordingly considered and decreed that the personal
representative in each cause, after payment of all claims
against either estate presented within the time required by
law, proceed to distribute the entire assets to the petitioner
John Ker Davis and that said personal representative be
discharged upon filing with the clerk of this Court a receipt
in full from the petitioner for all of -said property and a
further showing that all of such claims have been paid.

IN THE UNITED STATES COURT FOR CHINA.
In re Alexander Krisel.

[Cause No. 705, filed February 14, 1919.]

SYLLABUS.
(By the Court.)

1. EVIDENCE at a former trial may be proved by a transcript sworn

to be correct by the stenographer who need not be an official
one.

2. Id. : Burden of Proof. The possessor of another's property, taken

without the owner's consent, has the burden of showing that
his possession is innocent.

3. ATTORNEYS: DISBARMENT: MISCONDUCT OR Deceit need not be
practiced toward a client nor in the course of technical profes-
sional employment, in order to justify disbarment under 31
U. S. Stats, at Large, Ch. 786, sec. 743.

4. Id. : Misconduct. An attorney who uses, for pursuing a defend-
ant in civil action, another's launch, obtained without the ovnier's

"Act of Congress of March 3, 1901, Sess. II, 31 U. S. Stats, at
Large, Ch. 854, sec. 381.

IN RE KRISEL, FEB. 14, 1919. 847

knowledge or consent, by the payment of an unusual sum to one
who was understood not to be the owner nor to have authority to
hire, and who violates the owner's orders with the result that
the launch is wrecked, is guilty of such misconduct, especially
where he ignores marks, facts and circumstances which should
put him upon inquiry.
5. Id. : Deceit may include suppressio veri as well as suggestio falsi
and where in testifying or otherwise the attorney fails to state
fully and fairly his part in the affair and the extent of his
knowledge thereof, he is guilty of deceit.

Robert T. Bryan, Jr., Esq., Special Assistant U. S. Atty.,
for the information.
Respondent, pro se.

LOBINGIER, J.:

This is a proceeding for disbarment. The pleading by
which it was begun alleges :

"That on or about the 10th day of September, 1918, an action
was instituted in the International Mixed Court at Shanghai, China,
by Judah I. Ezra against one Yu Zien Chien for damages for libel
and slander printed in the Shanghai Gazette, and that the plaintiff
believing that the said Yu Zien Chien was about to leave the juris-
diction of the said International Mixed Court at Shanghai, China,
obtained a warrant in the nature of a special summons for the arrest
of the said Yu Zien Chien and did on the date aforesaid together with
Ellis Ezra and Sergt. Woodfield depart on the tender Alexandra for
Woosung to the steamship China which was anchored there, believing
that the said Yu Zien Chien was about to depart from the jurisdic-
tion of the said Mixed Court; and that upon boarding the said steam-
ship China the said Judah I. Ezra, Ellis Ezra and the said Sergt.
Woodfield were unable to find the said Yu Zien Chien or to serve
upon him the warrant which was out for his arrest, and that they
then and there returned to Shanghai on the said tender Alexandra
and that upon arriving at Shanghai, China, the said Ellis Ezra was
met by the said Alexander Krisel, who advised and counseled him,
the said Ellis Ezra, in the capacity of his attorney and counselor-
at-law, to hire a private launch and return to Woosung to the steam-
ship China and serve upon the said Yu Zien Chien the said warrant,
and that said Ellis Ezra did then and there take the advice of the
said Alexander Krisel, and requested the said Sergt. Woodfield to
return to the said steamship China which the said Sergt. Woodfield
agreed to do provided a launch could be obtained; and the said Ellis
Ezra, counseled, aided and abetted by the said Alexander Krisel,
did then and there attempt to obtain a launch on the Bund at Shang-
hai, China, by corruptly offering money as a bribe or reward to the

848 I EXTRATERRITORIAL CASES.

laodahs thereof, and that after several attempts the said Ellis Ezra,
aided, abetted and counseled by the said Alexander Krisel, unlaw-
fully and corruptly bribed the laodah of the Mei Foo IV, whose name
is Zung Lao Hung and who is in the employ of the Standard Oil
Company, to take them to Woosung (the said Mei Foo IV being a
launch owned by the Standard Oil Company), in the amount of two
hundred dollars ($200), the said Ellis Ezra and the said Alexander
Krisel, well knowing that Zung Lao Hung, the laodah of the said
Mei Foo IV, did not have authority to take the said boat to Woosung
and that the said boat was either a foreign or Chinese owned boat,
or that it belonged to the Standard Oil Company; and the said Alex-
ander Krisel did then and there in company with the said Sergt.
Woodfield and one Hope proceed to Woosung to attempt to arrest
the said Yu Zien Chien by virtue of the warrant hereinbefore men-
tioned, but owing to the inclemency of the weather the said Mei Foo
IV was wrecked upon the breakwater at Woosung; and that on ac-
count of the said conduct of the said Ellis Ezra and the said
Alexander Krisel, the said Ellis Ezra was prosecuted on or about
the 18th day of September, 1918, in the British Police Court at
Shanghai, China, upon the following charge:

'For that he on the 10th day of September, 1918, at Shanghai did
conspire with a Chinese 'go-between' and others, whose names are
to the prosecution unknown, to unlawfully and corruptly give or agree
to give or offer to one Zung Lao Hung a servant of the Standard
Oil Company of New York a gift or consideration of Mexican Dollars
two hundred as an inducement or reward for permitting him the
said Ellis Isaac Ezra to make use of the launch Meifoo No. U the
property of the Standard Oil Company of New York for his own
purposes, contrary to the Statute 6, Edward 7; c. 34; Section 1,'
and bound over for trial in the British Supreme Court at Shanghai,
China; and after due consideration by a duly empaneled jury in said
British Supreme Court the said Ellis Ezra was convicted on or about
the 15th day of October, 1918, of the aforementioned charge and fined
two thousand dollars; and if the said Alexander Krisel had been sub-
ject to the jurisdiction of the said British Supreme Court he could
have been convicted together with the said Ellis Ezra on the charge
aforesaid; and in the trial of the case aforementioned the said Alex-
ander Krisel was called as a witness and * * * testified falsely,
the matters so testified being material to the case and wilfully false;
for the jury would have acquitted the said Ellis Ezra had they be-
lieved the said Krisel's testimony * * * ^^^ ^j^^t the said Alex-
ander Krisel by all of such acts, conduct and testimony as herein
set forth is guilty of willful deceit and willful, fraudulent, and un-
professional misconduct, unseeming and unfitting for an attorney and
counsellor-at-law to commit and contrary to the laws of the United
States of America."

IN RE KRISEL, FEB. 14, 1919. 849

Respondent's answer contains no general denial and while
there are specific denials of deceit, misconduct, etc., it is
not seriously disputed that the main events outlined above
actually occurred. At the hearing, the Special Assistant
District Attorney who filed the information and conducted
the case in support of it offered in evidence transcripts of
the testimony of respondent and Sergt. Woodfield at the
trial above mentioned in the British Court. These and
other offers of evidence were objected to but in order not
to delay the trial rulings on some of them were reserved.
Respondent states in his brief that he has prepared it on
the assumption "that the Court is going to admit all the
evidence introduced by the prosecution." Such being the
case and the rule being that in trials to the court alone
error may be committed by rejecting, but never by admit-
ting, evidence ^ (since the court is presumed to be able
to discriminate between what is and what is not properly
considered), we shall treat respondent's undisposed of ob-
jections and motions to strike as overruled.

The testimony in the British Court was not only relevant
but indispensable in order to decide the issue of false swear-
ing raised by the pleadings and, therefore, constituted in
itself a substantive fact - while much of respondent's own
testimony there (Ex. B.) was also competent as admissions
The objection "that there are no official stenographers"
in that court is of course not valid. For the Federal
Courts in America do not all have official stenographers
and they require no more, even in a criminal case, than

"a copy of the stenographic report of the entire former testimony,
supported by the oath of the stenographer that it is a correct tran-
script of his notes and of the testimony." *

Here such "oath of the stenographer" was given in the
form of testimony which also showed his thirteen years'

' Fuentes v. Gaines, 25 La. Ann., 87; Andrews v. Johnston, 7 Col.
App., 551, 44 Pac, 73. Cf. 16 Cyc, 1114, note 33.

■ McKelvey, Evidence (2nd. ed.), sec. 148.

'Mattox V. U. S., 156 U. S., 237, 39 L. ed., 409. Cf. Chicago etc.
R. Co. V. Myers, 80 Fed., 361; 16 Cyc, 1108.

14008 O. W. 54

850 I EXTRATERRITORIAL CASES.

experience in stenography. Moreover his notes, as those of
a disinterested witness, are clearly more reliable than re-
spondent's unaided recollection of which he does not even
claim to be positive, but which is the sole basis for ques-
tioning certain features, mostly unimportant, of the tran-
script.

There was some discussion at the trial as to the capacity
in which respondent acted on the night in question and
his own versions thereof appear to be conflicting. Accord-
ing to General Manager Sprague of the Standard Oil
Company, to whom respondent went the morning after the
wreck :

"In response to my question he stated that he acted entirely as a
friend in this matter; that he received no recompense for his service."

Later, before the British Court respondent testified:

"Q. You were one of the party, were you not, which went to Woo-
sung on the night of September 10?
A. I was.

Q. At that time you were acting as legal adviser for Ellis Ezra?
A. I was."

It appears moreover that some time later, but before
these proceedings were begun, respondent sent to the party
last named a bill for $5,000 for legal services which was
characterized as "some bill" in a letter (Ex. F.) which
the former signed and sent respondent in reply and which
further contained the following:

"I consider that instead of me owing you any money I have good
cause of action against you as the sole responsible person for all the
trouble I have had for the Meifoo adventure.

"You will remember that when the tender came back from Woo-
sung, I intended to drop the matter and go home. You on the con-
trary urged that had you been asked to direct the operations, the
thing would have been successful as you had had previous experience
on similar matters as an American Vice Consul, and you insisted
that a private launch be hired and the China visited again, with the
result that I found myself in a nice mess — sued criminally and facing
a civil case to come."

"I want also to emphasize that apart from the above action on
your part I have had from you no other legal assistance in any shape
or form.

"How you can dare to think that you are entitled to such a
compensation for your services surpasses my imagination. I can

IN RE KRISEL, FEB. 14, 1919. 851

only say that I wish I had not met you that evening or had had less
confidence in your ability and knowledge."

The signer of this letter testified as follows :

"Q. Who wrote that letter?

A. I did.

Q. The first letter?

A. I did; which one?

Q. Under d-te November 14, 1918— Ex. 'F.'

A. I don't think it is necessary for me to say.

Q. It wouldn't do any harm; did you write it yourself?

A. Rather not answer the question.

Mr. Bryan : I think he testified that he signed the letter.

The Court: Did you sign the letter?

A. I did.

The Court: Was it sent out with your approval and knowledge?

A. Yes, my approval and my sentiments.

The Court: Do you mean to say that some one else copied the
letter?

A. No; I saw my legal adviser, one of my legal advisers, and
put the proposition before him, gave him the facts and he drafted
the letter.

The Court: You signed it and sent it out?

A. I did and sent it out. They were my sentiments and exactly
as I directed my lawyer to write."

In view of this it would have been clearly improper to
have compelled him to disclose, over his objection, the
name of one who he said drafted the letter; for that was
wholly immaterial. The correspondence is chiefly valuable
as revealing the real relation of the parties at the time
it was written. Respondent claims that it was "repudiated"
by another (Ex. 3) from the same party five days later.
But the latter neither withdraws nor qualifies a single state-
ment in the former and the client's opinion of the disbar-
ment proceedings is not competent evidence and must there-
fore be excluded. In the interval between the letters the
two seem to have reconciled their differences over the fee
and the client was, on the whole, a favorable witness for
the respondent, tho still maintaining that he would not
have entered into the transaction but for the latter.

Notwithstanding the statement that he had rendered "no
other legal assistance" respondent testified that he had been
consulted frequently by the signer of the letter and had

352 I EXTRATERRITORIAL CASES.

assisted the latter's lawyer in the British Court, tho he
admitted not having appeared of record. He claims that
his bill was for such services and that it was not out of
proportion to what was charged by the other lawyers. We
are not concerned here, as its recipient was, with the amount
of the bill but it seems difficult to believe, on the face of it,
that said amount was not intended to include the services,
whatever they were, of September 10 and at any rate
respondent's ov^m evidence discloses the relation of attorney
and client at the time. It has already been shown, in
ruling upon the demurrer, that the misconduct which will
justify disbarment need not be in relation to a client,* but
here the client, in the letter above quoted, did complain.
And certainly if respondent "acted entirely as a friend"
he was not only a most energetic one but his services were
wholly in a legal matter. For the sole purpose of the un-
fortunate enterprise in which he engaged so zealously was
to effect the atirest of a defendant in a purely civil action.

II.

It was reiterated in oral argument and again in respond-
ent's brief, that there is nothing wrong in hiring a launch.
But that depends upon the circumstances. There is nothing
wrong, of course, in hiring a launch from the owner for
a lawful purpose, which is another way of saying that there
is nothing wrong in doing what is right. But to hire one
which is not for hire ; to deal exclusively with a mere servant
in the owner's absence and without his knowledge; to
induce the former, by offering a large sum of money, to
betray his trust, use the launch in forbidden ways and
undertake a voyage that caused its destruction is a very
different matter indeed and if done by a member of the

* The following' are a few of the cases where nothing was done
adversely to a client:

Federal. Ex parte Wall, 107 U. S. 265, 27 L. ed. 552; Bradley
V. Fisher, 13 Wall 335, 20 L. ed. 646; Cobb. v. U. S., 172 Fed. 641,
644; In re Uhner, 208 Fed. 461.

Nevada. In re Schnitzer, 33 Nev. 581, 112 Pac. 848.

Philippines. In re Terrell, 2 Philippine 266.

Tennessee. Smith v. State, 1 Yerg. 228.

IN RE KRISEL, FEB. 14, 1919. 853

bar knowingly or recklessly, would seem to constitute "the
moral turpitude" which respondent emphasizes as a pre-
requisite to disbarment.

Now it is practically undisputed that all of the above
steps were taken; the disputed element is whether they
were taken knowingly by respondent. He seems to have
participated in every phase of the affair. He advised the
hiring of a launch; he was present during part, at least,
of the negotiations; knew of the offer of the $200, saw
money handed over, and accepted the results of the bargain.
Nor was he a mere participant in the affair. For when
asked

"If it had occurred to you that these people did not own the
launch would you have hired it?"

He replied:

"If had thought that, / should not have permitted it."
Elsewhere (Ex. B, p. 13) he says:

"/ certainly would not have permitted the $200 to be paid to the
laodah of a Standard Oil Launch knowing it to be a Standard Oil
launch."

These statements clearly seem equivalent to admissions
that respondent exercised some authority as regards hiring
the launch and paying the money.

Again, when the others were about to give up the pursuit,
respondent

"saw Gensburger hand something which I presumed to be money.
I said to him 'Are you not going?' and he said 'No. I am tired,'
and I turned to Ellis Ezra and said 'One of you boys ought to go.'
Then they called Judah Ezra who refused to go. Time was wasted
and I said 'You do not seem to want to go; I will go.' " (Ex. B, 10).

In this Court he testified:

"Q. Why did you think it was necessary to accompany the police
officer on that sort of an expedition; was there any point on which
he needed your advice?

A. No, I didn't go down there to give him any advice. I told
Mr. Ezra that I thought one of them ought to go as they were
interested in the action; that first it wasn't fair to ask two strangers
to go down so late at night, and I also told him, confidentially, that
I did not think they would go down to the China if he let them go
alone.

g54 I EXTRATERRITORIAL CASES.

Q. Only one person could serve the process?

A. Yes.

Q. You thought it was necessary in order to see that he served

it?

A. To see that they went down to the China and attempted to

serve it."

This testimony seems to contain a sufficient answer to
respondent's claim that the laodah was in charge of the
launch. For why was the sum of $200 paid the laodah and
how could respondent '"see that they went down to the
China" unless he had control of the launch? Surely the
laodah was not free to take it where he pleased and it
seems to us that respondent was the one ultimately in
charge of the expedition and hence, for the time being, in
at least constructive possession of the launch. And as
such possession was manifestly unlawful the burden would
seem to rest upon him to show that he was ignorant of
its unlawfulness. In other words one who is found in
possession, even constructively ' of another's property which
has been taken without the owner's consent, must explain
such possession satisfactorily or it is presumed intentionally
wrongful.'' Moreover, where the facts are substantially
admitted the burden rests upon respondent to show his good
faith ' and

"unless the respondent fairly and in detail explains to the court his
entire connection with the transaction wherein he is charged with
improper conduct, it will be presumed that he is unable to do so." '

Respondent's explanation is that he boarded the launch
in good faith, believing that it had been properly hired

■' U. S. v. Simbahan, 19 Philippine, 25.

" Wigmore, Evidence, I, sec. 152. Compare U. S. v. Leonhardt &
Terry, ante, p. 790.

' "The burden was upon him to show that statements made in
the communication which were scandalous upon their face were not
maliciously or willfully published, or were not false, and he cannot
complain that upon his refusal to sustain such burden of proof, or
to adduce any testimony whatever, the court took the information
to be true." Cobb v. United States, 172 Fed. 641, 644, 96 C. C.
A. 477.

'People V. Webster, 28 Col. 223, 64 Pac. 207.

IN RE KRISEL, FEB. 14, 1919. 855

and not knowing that it was being wrongfully used. The
fundamental task in the case as we see it is to determine
whether this explanation is justified by the evidence. And
in so determining we are not, of course, restricted to re-
spondent's own protestations of innocence. On the contrary,
as those of the most interested party, they must be taken
with caution. Nor should the opinions as to his conduct,
or even the testimony, of his fellow participants, control.
For they, too, are involved in the transaction, one of them
having been convicted by reason thereof, and are naturally
anxious to place it in as favorable a light as possible. In-
deed, Mr. Sprague testifies that respondent informed him,
on the morning after the wreck, of an arrangement by which
one of these parties "had promised not to mention Mr.
Krisel's name" and that respondent had also complained
that this same party "had called upon me (Mr. Sprague)
without the knowledge or consent of any of the other people
concerned in the matter of the Meifoo IV wreck."

There are, however, certain facts and circumstances
which stand out prominently and which seem to us control-
ing:

1. As we have seen, the launch which was taken and
wrecked was named Meifoo. That, it is conceded, is the
Chinese name for the owner. Respondent testifies

"I have known the Chinese name of the Standard Oil Company
for the past five or six years; it is Meifoo."

He also states that he speaks the Mandarin dialect of
Chinese and understands about "half of the local (Shang-
hai) dialect" (Ex. B, p. 3) .

Now, Sergt. Woodfield saj''s that while with respondent
at the French Town jetty, after the party had failed to
obtain a launch elsewhere, a Chinese came up and said
"Meifoo can catch" which would seem to have been suffi-
cient notice to respondent or any one else familiar with
"pidgin English" that a Standard Oil launch was being
offered for hire. The testimony on this point is in part
as follows:

"It was at the French Town jetty I heard 'Meifoo can catch.'
I think I heard 'all right, we have it' or something like that.

856 I EXTRATERRITORIAL CASES.

Q. Did you hear the phrase 'Can catch Meifoo?'

A. At the French Town jetty, the first jetty.

Q. Was Mr. Krisel there?

A. Undoubtedly he was there, that was why, that is why we left
the French Town jetty.

Q. Because someone said 'Can catch Meifoo?^

A. Yes.

Q. Was this said in a loud tone of voice?

A. At the French ToAvn jetty.

Q. How far was Mr. Krisel from you?

A. I don't know, but we were grouped together; he was prob-
ably on my right.

Q. About how far?

A. Groups were formed, we were generally together, sometimes
three of us talking together.

Q. Would you say it was possible for — that it would have been
possible for Mr. Krisel to have heard those words 'Meifoo can catch'?

A. Oh, yes."

Respondent denies that he heard the offer of this Chinese
tho he admits that it may have been made; but as between
himself and Sergeant Woodfield we feel bound to accept
the latter as less interested. Nor, in our judgment, is
his testimony overcome by the fact that the other interested
parties present on that occasion do not admit having heard
the offer.

2. The offer of the Meifoo was important enough, then,
to cause the party to leave the "French Town jetty" and
proceed to the Nanking Road jetty where they negotiated
for a motor boat (said to belong to the Standard Oil Com-
pany) and a discussion followed with the Chinese which
respondent participated in, or at least heard, relative to
the payment of two hundred dollars for the use of a launch.
Later the party proceeded to the Canton Road jetty where
the bargain for the Meifoo IV was consummated and re-
spondent went on board.

This launch, it is conceded, had the letter "S" painted on
its funnel and the trade name "Socony" on its pilot house
and in several other places. Respondent had seen this
trade name "a good many times;" indeed it was familiar
to him from his work in the American Consulate and he
admits that he "would recognize that as the trade mark

IN RE KRISEL, FEB. 14, 1919. 857

of the Standard Oil Co. in any part of the world" (Ex. B,
p. 13). Mr. Sprague testifies that shortly after the affair
in question he went to the same jetty on two different nights
at about eleven o'clock and had no difficulty in picking out
the marks of the various launches moored there. From
his motor car in the street he states "that he could see the
"S" on the funnel of the Meifoo III, practically a sister
ship of the wrecked one, and that the trade mark "Socony"
on the pilot house was visible to any one passing to the
front of the boat. Respondent characterizes this witness
as "an interested party," but he is surely not a party to
this proceeding and he is a reputable business man of high
standing. The further objection that his experiments were
made "on an ordinary night" is contrary to the testimony
of Mr. Sprague who says that the second occasion "was
a dark night." Moreover he shows that it was the lights
and not the condition of the night that enabled him to see
and that "the Canton Road jetty is lighter at night than
the other jetties along the Bund."

Sergt. Woodfield made a similar experiment which he
describes as follows :

"A few nights ago I was down there. I do not know how the
tide was, didn't take notice how it was running; I looked at this
particular jetty, there was no Standard Oil launch there at that
time; there was a Robert Dollar launch lying further out in the river;
her sign was perfectly clear to me; I looked for the sign and read
it perfectly clear; the conditions that night I do not think were the
same as on the previous night.

Q. You mean they were better or worse, on the last night you
refer to for purposes of observation than on the night when you
made the trip down the river?

A. They may have been better, I do not think it was such a
dark night. This last occasion it was raining but I noticed a very
strong glare from the Bund lights; it was not raining on the night
down the river."

But rain would seem to make the conditions less favor-
able. Sergt. Woodfield also saw the trade name "Socony"
on the pilot house of the Mei Foo IV as he stepped aboard
altho he did not look for it. In his brief (p. 8) respondent
refers to this as follows :

858

I EXTRATERRITORIAL CASES.

"Woodfield testified that he knew it was a Standard Oil boat as
soon as he got on it, because one of the crew passed in front of
the sign on the deckhouse with a lantern which lit the sign up."

But what the witness said was :

"It seems to me I have the impression in the back of my mind
and it seems to me that lights were being moved about the boat
and it seems to me a light passed it as I passed on the boat and
I noticed it."

In other words, he has nothing more than an "impression"
regarding hghts and as Mr. Hope, who accompanied him on
board saw none, it is evident that the "impression" is hardly
to be relied upon. Mr. Hope did, however, see the "S"
on the funnel of the Met Foo IV.

Respondent does not admit having seen any of these
marks. He states (Ex. B, p. 10) that he "did not look for
it." But he was the only one of the three foreigners who
boarded the launch at the time who does not admit having
seen one or more of them.

3. The information, as we have seen, charges that re-
spondent and his client dealt with the laodah in charge of
the launch

"well knov/ing that Zung Lao Hung, the laodah of the said Mei Foo
IV, did not have authority to take the said boat to Woosung."

That averment is not denied in respondent's answer.
The absence of such denial was called to his attention during
the oral argument but tho he asked and obtained leave to
amend by adding a denial as to another charge this partic-
ular one was left undenied. The rule, as conceded in re-
spondent's brief, is that all averments not denied are deemed
admitted in civil cases and in disbarment proceedings the
rules of civil evidence prevail according to the weight of
authority.^

But this admission does not consist merely in a failure
to deny. For respondent testified:

"Q. Did you think these Chinese owned the launch?
A. No, I did not think that.

' Corpus Juris, VI, 607, notes 88, 89.

IN RE KRISEL, FEB. 14, 1919. 859

Q. Did you think when the money was passed it was going to
the owner of the launch?

A. Yes. That was my assumption at the time.

Q. You saw the Chinese?

A. What would be seeing a Chinese at 50 ft. on a dark night?

Q. Did they look like men who happened to be owning a fine steam
launch?

A. It would be impossible to say, but I did not think they owned
the launch. * * *

Q. You did not think Chinese owned the launch?

A. I did not think at the time. I think I should not (have had)
any idea that they owned it.

Q. Having that idea, did it occur to you to inquire who owned
the launch?

A. No, it did not. * * *

Q. As a lawyer; there were two men who you had no reason to
believe owned a launch?

A. These two people were down near the Nanking Road jetty.

Q. They went to the Canton Road jetty?

A. I suppose so. I don't know. We went in motor cars to the
neighborhood of the Canton Road jetty and when I got there Wood-
field and Hope were on board.

Q. Were there any Chinese on the Canton Road jetty who you
had reason to believe were the owners of the launch?

A. I had no reason to look around. There were 20 or 30 Chinese
there.

Q. All touting?

A. I assumed they were all laodahs. * * *

Q. These Chinese came up and asked for money. You did not take
be to owners of the boat?

A. No. I never thought of it at the time, but I do not think
that I would have thought they were the owners. I did not suppose
that the owners would be living on board. I thought the man in
charge would be the laodah (Ex. B, pp. 7, 9, 11).

The conclusion seems irresistible from this testimony that
respondent knew that he and his companions were not deal-
ing with the owners of the launch in question, and that
he at least made no effort whatever to pursue the inquiry
which the facts naturally suggested. That he knew the
wrongfulness of dealing with others than the owners is
also apparent from the following passages in his testimony :

"Q. If you had known the launch belonged to anybody else would
you have made inquiries?

A. If I had knoAvn it was a foreign hong I should have known
that the laodah was doing this on his own part and I should not have
consented. * * *

860

I EXTRATERRITORIAL CASES.

Q. If you had any reason to believe the Mei Foo IV was a
Standard Oil launch you would have communicated with the Standard
Oil?

A. I certainly would. I certainly would not have permitted the
$200 to be paid to the laodah of a Standard Oil launch knowing it to
be a Standard Oil launch because I know the Standard Oil Co. has
been very nice that way in assisting people by letting them have the
launches on occasion."

(See also his testimony quoted above (p. 7) (Ex. B, pp. 12, 13).

Shortly after the launch started, two Chinese approached
him and asked for money but the respondent did not refer
them to their employers altho he admits that he did not
take them to be the owners or in charge. Nor did he in-
quire of these men even then who their employers were.
No such inquiry was made by him until after the wreck,
at which time escape from a very embarrassing situation
seemed imperative, and the inference would appear to be
that had the launch completed its voyage and returned in
safety respondent would have paid no attention to the
ownership. He admits (Ex. B, p. 12) knowing as soon as
he learned of the ownership that the Standard Oil Company
could not have known of this use of its launch and the
facts which originally placed him upon inquiry would, there-
fore, if followed up, have shown him at once that he was
engaged in an unlawful transaction. He appears to have
been well aware of the fact to which Mr. Sprague testifies,
that the Standard Oil Company does not maintain launches
for hire, that no such bargain as this was ever authorized
by it and it was a necessary consequence that the act of the
laodah in so using it amounted substantially to a conversion
of the property.

4. The amount paid the laodah was another circumstance
which should have warned respondent. He testifies

"Q. Did you hear the conversation about the hire to be paid?

A. Yes. I heard about $200 was offered, and as far as I could
judge it was agreeable to the laodah in charge. He raised no objection
as to the hire. * * *

Q. Did you see any money pass?

A. Yes. As I was coming up I saw Mr. Gensberger hand some-
thing which I at the time presumed to be money to one of the two
men, Hope or Woodfield, on the launch." (Ex. B, pp. 5, 6.)

IN RE KRISEL, FEB. 14, 1919. 861

The objection that this testimony includes references to
different jetties appears to us unimportant. The fact that
this amount was known by respondent to have been offered
to any laodah should have put respondent upon inquiry as
to subsequent ones.

Sergt. Woodfield testified that during the negotiations he
remarked :

" 'Good gracious, are you paying $200 for a launch to go down to
Woosung.' I said they would be lucky if they got $150. * * *

Q. In point of fact he had $250.

A. I know he handed $50 to Mr. Hope. I said to Mr. Hope,
'Good gracious, that is a large amount, what is the legal fare?' Mr.
Hope said probably $75. Then I stepped back; I was not paying
the money." (Ex. C, p. 20.)

In other words that witness did not consider it a matter
in which he should further interfere. Respondent, how-
ever, was taking charge of the expedition and availing
himself of the services of the laodah who he knew, or at
least had reason to believe, had received that large amount.
Did such knowledge never lead him to inquire why this
unusual payment was necessary? And can he be said to
have met the burden of showing that his presence on
the launch, and his constructive possession thereof for the
time being, were innocent and without knowledge of its
unlawful character, so long as all these marks and cir-
cumstances were ignored?

5. Finally we may refer again to the testimony of Mr.
Sprague that respondent informed him that the latter's
name was not to be mentioned. But why not if he were
innocent and the transaction legitimate? The "deceit"
mentioned in the statute as a ground for disbarment need
not, of course, be overt. For suppressio veri constitutes
deceit as well as suggestio falsi^°

III.

The fact that his client was convicted in the British
Court for this very transaction in which respondent par-

" Strong V. Gutierrez, 213 U. S., 419, 53 L. ed., 853; Parker v.
Ausland,13 S. D., 169, 82 N. W., 402.

862 I EXTRATERRITORIAL CASES.

ticipated does not, of course, constitute res adjudicata as
to the latter. But it would certainly be anomalous if the
client could be convicted and punished for doing exactly
what the attorney advised and participated in and the
latter still remain immune. It is true he protests that
he did not advise the commission of a crime and that
similarly the client protests that he did not commit a crime ;
but the fact remains that the highest local tribunal of a
sister nation has decided, by dismissing the appeal, that
a crime was committed and that the acts which respondent
admits having advised and participated in constituted that
crime.

We do not well see how that fact can be ignored in a
proceeding like this. We have here an international com-
munity where members of the bar of one court are per-
mitted by courtesy to practice in other courts. In order
that this highly gratifying and mutually beneficial arrange-
ment may not be impaired it is important that each court
see to it that the members of its bar so conduct themselves
that their appearance in the foreign court will not be objec-
tionable. We would hardly welcome here the appearance
of a foreign lawyer who had advised an American client
to commit acts which constitute a crime under American
law tho they might not be such under the law of the former's
0W71 jurisdiction. On the other hand we could hardly expect
our colleagues of H. B. M. Supreme Court to look with
complacency upon the appearance there of a member of
the bar of this Court whose client had been convicted for
acts which the attorney had advised and participated in.
The situation is quite different from one where the conduct
of the attorney in question affects, and is reviewed solely
by, the courts of a single sovereignty.

^Vhether the acts above set forth constitute under our
law the precise offense for which the client was convicted
in the British Court we need not now determine. But
it would be a reproach to American justice if the property
of another could be taken without his consent in the manner
shown by this evidence, and destroyed, or at least badly
injured, with impunity. Under some circumstances it

IN RE KRISEL, FEB. 14, 1919. 863

might constitute the offense known as receiving misap-
propriated property which in this jurisdiction is defined
as follows:

"Every person who shall buy or in any ivay receive anything of
value, know^ing the same to have been embezzled, taken, or secreted
contrary to the provisions of any of the three next preceding sections,
shall be punished in the same manner and to the same extent as
prescribed in said sections, respectively." "

The "next preceding sections" here referred to include the
case of the "servant of any * * * incorporated com-
pany" who

"shall wrongfully convert to his own use, or fraudulently take,
make way with, or secrete, with intent to convert to his own use,
anything of value which shall come into his possession or under his
care by virtue of his employment-" "

We have said that the acts here shown might constitute
this crime under certain circumstances. The particular
circumstance which we had in mind was that of knowledge.
The property converted by the servant must have been
received by the offender "knowing the same to have been
* * * taken, or secreted," etc.

"The guilty knowledge, however, need not be direct and actual; it
may be circumstantial and inductive. It is sufficient if the receiver
believed or reasonably suspected, from the circumstances of the
transaction, that the goods were stolen." "

"If you find that all the facts and circumstances surrounding the
receiving of the goods by defendant were such as would reasonably
satisfy a man of defendant's age and intelligence that the goods were
stolen, or if he failed to folloiv up such inquiry so suggested, for fear
he would learn the truth and know that the goods were stolen, -the
defendant should be rigidly held responsible as if he had actual knowl-
edge." "

"In determining whether the fact (of guilty knowledge) existed,
the jury will be justified in presuming that the prisoner acted ration-

" Act of Congress of March 3, 1901, sess. II, 31 U. S. Stats, at
Large, Ch. 854, sec. 836. Cf. Act of Congress of March 3, 1899, sess.
Ill, 30 U. S. Stats, at Large, Ch. 429, Tit. I, sec. 52.

''Act of Congress of March 3, 1901, sess. II, 31 U. S. Stats, at
Large, Ch. 854, sec. 834.

" Cyc, XXXIV, 516.

" Charge to the jury in State v. Feuerhaken, 96 Iowa, 299, 65 N. W.
299.

864 1 EXTRATERRITORIAL CASES.

ally, and that whatever would convey knowledge or induce belief in
the mind of a reasonable person, would, in the absence of counter-
vailing evidence, be sufficient to apprise the prisoner of the like fact, or
induce in his mind the like impression and belief." "

"If the defendant did not know the facts, but believed, from the
circumstances, that the property had been either embezzled or stolen
and it had been actually stolen, it was competent for the jury to find
the defendant guilty of the offence charged" (receiving stolen goods)."

In this case, as we have seen, respondent seeks to excuse
himself by pleading inadvertence. He **did not look closely
at the boat" on boarding; he "did not look for" the sign
on the Meifoo IV; he "didn't think" about ownership. A
typical passage is the following from his examination in
the British Court:

"Q. Now when you saw the money pass that night, to whom did
you understand it was to be paid?

A. I gave no thought. I saw something handed over as I came
up.

Q. I will ask you a plain question as a lawyer. To whom do you
think the money was to be paid? It was on your advice that it was
done. Who was the money to be given to?

A. It was given to Hope. I presumed it was money and I gave
the matter no further thought.

Q. I would like you to give me an answer. To whom did you
think the money was to be paid?

A. I have answered that I did not give the matter further thought."
(Ex. B, p. 6.)

So when Sergt. Woodfield as he states made a remark
regarding the launch which would have opened the way for
a discussion of its ownership there was no response.

In view of the authorities just cited, such testimony would
hardly afford a defense to a prosecution under the statute
above quoted and it would seem less effective in a proceed-
ing like this. It was respondent's duty to think, to look,
to take notice. It was his business to know what he was
doing.

" Huggins V. People, 135 111., 243, 25 N. E., 1002, 25 Am. St. Repi,
357.

"Commonwealth v. Leonard, 140 Mass., 473, 4 N. E., 96, 54 Am.
Rep., 485.

IN RE KRISEL, FEB. 14, 1919. 865

IV.

The limits already reached in this opinion leave little
space to consider in detail the charge of false swearing.
Suffice it to say on that subject that the charge to the
jury in the British Court appears clearly to have submitted
the question of respondent's veracity. For the jury was
told "If you were to follow Mr. Krisel's evidence it seems
to me you would be pretty well bound to acquit the accused."
As the jury failed to "acquit" the accused it would seem
clear that they did not believe the respondent. So here
we cannot, in view of respondent's well known keenness
and opportunities for observation, believe as he would have
us that he had no idea that he was boarding a Standard
Oil launch nor even one belonging to some foreigner. We
cannot escape the conclusion, from a survey of the whole
evidence, that he was so anxious to effect the service of
the order of arrest that he was ready to employ almost
any means "to do so. We do not suppose that he inten-
tionally sought out a Standard Oil launch but we think
the evidence discloses that after a failure to obtain one
elsewhere he was ready to and did take any that came
along, without considering its ownership and hoping to
accomplish his purpose and return without detection in
case of failure. This involves such a disregard of the
right of property, such a lack of adherence to the ethical
standards which should govern a member of the bar, that
it cannot be characterized as anything short of misconduct.

We, therefore, find from the evidence:

1. That respondent was guilty of misconduct in knowingly
using another's launch, obtained without the owner's knowl-
edge or consent by the payment of an unusual sum to
one who was understood not to have authority to hire
it and in recklessly permitting servants of the owner to
use said launch in such a way as to cause it serious injury.

2. That the respondent was guilty of willful deceit in
failing to state fully and fairly in Court the extent of his
knowledge of the ownership of said launch.

14008 O. W. 55

855 I EXTRATERRITORIAL CASES.

3. That such misconduct and deceit would have been

sufficient to have prevented respondent's admission ^^ to

the bar — at least without some period of probation — and

are sufficient to justify disbarment under the statute.^*
*******

It is a painful duty which these findings impose. For
the respondent's professional career is one in which we
have had a special interest. His was the first application
for admission which was presented to us after taking charge
of the Court nearly five years ago. It had been pending
for some time but the report of the examining committee
had not been made for reasons which we were unaware of
at the time. The report was finally secured, however, and
the respondent admitted. Shortly after that we had occa-
sion to suggest to the Minister his transfer to Shanghai
and his assignment to the International Mixed Court on
account of his legal knowledge. Naturally, it is a keen dis-
appointment to find him involved in an affair of this kind
which has acquired such wide notoriety and indirectly
affected the good name of the bar of this Court.

But while we are of the opinion that the facts of this!
record would justify permanent disbarment we are loth to
impose that extreme without giving respondent further
opportunity to retrieve himself within the legal profession.
He is a young man of much more than average ability
and acuteness (which unfortunately only aggravates his]
offense) and with proper moral standards there is no reason]
why he should not attain success at the bar. We prefer]
to allow him a chance to show that this experience has]
taught him a lesson and that hereafter he will adopt some]
other rule of conduct than that the end justifies the means.!
We have accordingly decided to suspend him from practice
in American Courts in China, and from all the privileges
resulting from such practice, for a period of one year, at
the end of which an application for reinstatement, accom-
panied by a showing of intermediate good conduct and a]

"Corpus Juris, VI, 584.

" 31 U. S. Stats, at Large, Sess. I, Ch. 786, Tit. II, sec. 743.

EVERETT V. S WAYNE ET AL., MAR. 5, 1919. 867

guaranty of changed standards for the future, will be
considered.

The foregoing order was duly announced and read in
full to the respondent in open court on January 25, 1919,
but at his earnest request that it be withheld from entry
until he might finish his pending cases, it was not then
signed or filed.

At the same time he moved orally for a new trial and
was heard later at length in support thereof. In some par-
ticulars— notably as to costs — we have modified the opinion
to conform to said motion. But on the whole we find no
sufficient reason to change the conclusions already an-
nounced and, regardless of whether the motion was in
proper form, a new trial is denied.^"

IN THE UNITED STATES COURT FOR CHINA.

LEONARif Everett, Plaintiff, v. Swayne & Hoyt,
Defendant.

[Cause No. 507; filed March 5, 1919.]

SYLLABUS.
(By the Court.)

1. STARE DECISIS. The doctrine of U. S. v. Engelbracht, ante, p. 169,

followed and applied.

2. LAW. The Court Regulations for China are "so far as practicable,"

and except as modified by the Judge of this Court, given pre-
ference herein over other procedural provisions.

3. JUDGMENTS: INTEREST at the rate of 12% on judgments is allowed

by said Regulations.

Messrs. Fleming & Davies, by Mr. Fleming, for the mo-
tion.

Messrs. Jernigan, Fessenden & Rose, by Mr. Rose, contra.

"A notice of appeal was filed but the attempt was abandoned.
The rule in the Federal courts is that neither appeal nor writ of
error lies from an order of disbarment by a district court. Ex parte
Robinson, 19 Wall., 513, 22 L. ed., 205; Ex parte Bradley, 7 Wall.,
364, 19 L. ed., 219; Bradley v. Fischer, 13 Wall., 335, 20 L. ed., 646;
In re Ulmer, 208 Fed., 461, 468, & cit^ Nor will mandamus lie to
compel respondent's reinstatement. Ex parte Secombe, 19 How., 9,
15 L. ed., 565. Ed.

ggg I EXTRATERRITORIAL CASES.

LOBINGIER, J. :

Plaintiff moves for execution of the judgment herein
rendered on December 28, 1916, and affirmed by the Court
of Appeals on January 6, 1919, and claims interest thereon
at 12% per annum from the date of its rendition. This
claim is based on the following provision:

"On the second day after judgment (exclusive of Sunday) , execution
may issue, enforcing the same, with interest at 12 per cent a year
against the property and person of the debtor, returnable in thirty
days, and renewable." '

Defendant objects to this item of interest

"on the ground that the Acts of Congi-ess applicable in this jurisdic-
tion provide that the rate of interest on judgments shall be six per
cent per annum." "

The question presented, therefore, is whether we shall
follow the Court Regulation or the special Act of Congress
in awarding interest on judgments. But that question is
not an open one in this jurisdiction. A decision ^ of this
Court rendered nearly a decade ago upholds a provision of
these Court Regulations as against a general (not merely
special, like that invoked by defendant) Act of Congress.

The point there under consideration related to prescrip-
tion or the limitation of actions which is hardly more of
a procedural subject than interest on judgments. Moreover
it is unquestionably ''practicable" to apply the Regulationj
regarding such interest.

The Rules of the Court of Appeals provide :

"In cases where a writ of error is prosecuted in this court, and th«
judgment of the inferior court is affirmed, the interest shall be calcu-j
lated and levied from the date of judgment below until the same is'
paid, at the same rate that similar judgments bear interest in the
courts of the State or Territory where such judgment was rendered." *

Under the authorities above reviewed it is obvious that
the "rate that similar judgments bear in the court * * *
where this judgment was rendered" is 12% and the motion
for execution on that basis must accordingly be sustained.

'Court Regulations for China (1864), 21.

' Citing Act of Congress of March 3, 1901, Sess. II, 31 U. S. Stats,
at Large, Ch. 854, sees. 1178, 1186.
' U. S. V. Engelbracht, ante, p. 169.
^Rule 30 (1).

IN RE FITCH'S ESTATE, MAR. 8, 1919. 869

IN THE UNITED STATES COURT FOR CHINA.
In re Alberta C. K. Fitch's Estate,

[Cause No. 736.]

Yao Sui Dong, Plaintiff, v. American Food Mfg. Co., Ltd.,

Defendant.

[Cause No. 740.]
(Filed March 8, 1919.)

SYLLABUS.

(By the Court.)

1. COURTS: Jurisdiction of American Consular Courts in China has

always been concurrent only — first with that of the Commis-
sioner, then with that of the Minister and now with that of
this Court.

2. Id.: Id.: Shanghai Consular Court. While the Act of Congress

of March 2,M909, was in force the only functionary authorized
to preside over the Consular Court for the district of Shanghai
was one holding the office of "vice-consul-general."

3. Id. : Id. : Transfer. By the abolition of said office, in the Act of

Congress of February 5, 1915, the jurisdiction of said Court lapsed
and merged with that of this Court.

4. Id.: Id.: Whether or not the subsequent act declaring "judicial

authority * * * vested in" another officer was effective to
undo such merger and recall such lapsed jurisdiction, it is con-
current only.

Robert T. Bryan, Jr., and Rodger & Haskell, by Mr.
Haskell, for tlie demurrants.

Dr. H. C. Mei, for the petitioner in Cause No. 736.

Jernigan, Fessenden & Rose, by Mr. Rose, for the peti-
tioner in Cause No. 740.

LOBINGIER, J.:

The petitions here assailed by demurrer invoke the
jurisdiction of this Court in causes each involving in China
less than $500, U. S. currency. As both demurrers present
substantially the same question they have been considered
together tho argued separately. They go to the root of the
jurisdiction of American Courts in China and call for a
review of legislation relating thereto.

It was assumed, rather than urged, by demurrants that
the Consular Court alone has jurisdiction of these causes.

g70 I EXTRATERRITORIAL CASES.

We certainly cannot agree with the contrary contention
that the Consular Courts were never really vested with
probate jurisdiction. It must be remembered that our
original treaty of 1844 with China reserved to the "author-
ities" of our own government

"All questions in regard to rights, whether of property or person,
arising between citizens of the United States in China." '

Then the Act of Congress of August 11, 1848, provided

"That in regard to civil rights, whether of property or person, the
said functionaries are hereby vested with all the judicial authority
necessary to execute the provisions of said treaty".^

This was repeated in the Act of June 22, 1860 '■' and its
language clearly seems ample to include probate, along
with other, jurisdiction.* The fact that a much earlier
statute ^ gave the consuls certain administrative powers over
estates of deceased Americans in no way affected this later
grant as to extraterritorial countries, the consuls in the
latter may have been content to exercise merely those
powers.

But it does not follow that the consuls ever had exclusive
jurisdiction in probate or other causes. For who were the
"authorities" and "functionaries" referred to in the above
excerpts? The first section of the Act of 1848 answers this
by investing "the commissioner and the consuls * * *
with the judicial authority herein described."

We have not overlooked the opinion of Attorney General
Cushing " regarding that act and his opinions, like those
of other Attorneys General, are entitled to consideration.
They are not, however, binding like the decisions of a
court but are to administrative officers advisory only " and

' Art. XXI, Malloy, Treaties, I, 202, ante, p. 2.

'9 U. S. Stats, at Large, Sess. I, Ch. 150, sec. 3, p. 276.

' 12 U. S. Stats, at Large, Sess. I, Ch. 179, sec. 3, p. 73.

*In re Roberts' Will, U. S. Court for China, May 15, 1907; In re
Consul General's Report, ante, p. 291; Mather v. Cunningham, ante,
p. 136.

° Act of April 14, 1792, 1 U. S. Stats, at Large. Ch. 24, sec. 2, p.
255. See In re Consul General's Report, ante, p. 291.

' Opinions of Attorneys General, VII, 507.

' Id., IX, 32.

IN RE FITCH'S ESTATE, MAR. 8, 1919. 871

to courts more in the nature of arguments which are ex-
tremely helpful when sound and fortified by authority.
In said opinion Mr. Gushing concedes that

"it is nowhere said by the statute, in so many words, that the judicial
authority of the commissioner in the trial of the above described
cases, civil or criminal, is appellate only."

Necessarily then, such "words" must be read into the
statute and the reasons for doing so must be clear. Mr.
Gushing states as his chief reason that

"No original jurisdiction in these two classes of cases is given to him
in express terms by the statute. It is all conferred in express terms
on the consuls."

But in this the distinguished Attorney General hardly
seems to have given full force to the provision

"That the comm^sioner of the United States shall * * * be
fully authorized to hear and decide all cases, criminal and civil, which
may come before him under the provisions of this act." *

Here, it will be seen, his jurisdiction is not limited to
those cases "which may come before him" on appeal but
extends to "all ^ cases." The subsequently conferred au-
thority "to decide finally any case upon the evidence which
comes up with it" is in a separate clause and we see no
reason to treat it as limiting "all" that precedes. Indeed
the "cases which may come before him" are broadly stated
in the second and third sections of the act, the former of
which provides

"That in regard to crimes and misdemeanors, the said public
functionaries are hereby fully empowered to arraign, and try, in
the manner herein provided, all citizens of the United States charged
with offences against law * * * and the said functionaries and
each of them are hereby authorized to issue all such processes as
are suitable and necessary to carry this authority into execution."

The "issue of processes" belongs ordinarily to a nisi p^'ius
court and conferring that function upon the Gommissioner
would seem clearly to imply that his powers were not ex-
clusively appellate. So the grant to "said functionaries"

' 9 U. S. Stats, at Large, Sess. I, Ch. 150, sec. 13, p. 278.

* "Some one had said that there is no more comprehensive word
in the English language than the word 'all.' " Barrameda v. Moir,
25 Philippine, 44, 46, construing a similar jurisdictional clause.

872 I EXTRATERRITORIAL CASES.

in the third section of "all the judicial authority necessary
* * * in regard to civil rights" appears equally broad.

Moreover the provisions ^^ which Mr. Gushing apparently
construed as conferring "original jurisdiction * * *
in express terms on the consuls" do not use that phrase
at all and are devoted rather to prescribing procedure than
to conferring jurisdiction. The jurisdiction is conferred
equally, as we have seen, by the first three sections of the
act and we find no subsequent section where their broad
grants are withdrawn or even qualified.

Mr. Cushing's other reason is that

"It seems fitting, (sic) and in the analogy of other judicial
proceedings that, in ordinary matters, an appellate authority should
exist: which would not be the case here, if the Commissioner had
in all things, original jurisdiction, concurrent with that of the
consuls; and this anomaly would be the greater in the matter, in
consideration that the statute gives no assessors to the Commis-
sioner."

It is clear enough that "an appellate authority did exist"
in the Commissioner; but that it was in the least "anom-
alous" or inconsistent with his original jurisdiction is
purely imaginary fpr such a system is not at all uncommon.
British extraterritorial Supreme Courts ^^ have long en-
joyed both original and appellate jurisdiction and so have
many American courts.^- Indeed, since the consuls were
usually laymen, it seems to us much more "fitting" that a
reserve of concurrent jurisdiction should have been vested
in a tribunal presided over by one who was more apt to
have technical legal knowledge; and it is noteworthy that
the model court of the law reformers is an unified one having

"9 U. S. Stats, at Large, Sess. I, Ch. 150, sees. 7, 8, 9.

" China and Japan Order in Council (1865) sec. 37 (H. B. M.
Supreme Court for China and Japan) ; China and Japan Order in
Council (1878), sec. 6 (5) (H. B. M. Supreme Court for Japan).

" Following are a few taken at random :

Iowa. (District Court) Koons v. Dyer, Morris, 127.

Nebraska. (District Court) Rev. Stats. (1913) sec. 1205, 1237,
8451.

Philippines. (Court of First Instance) Barrameda v. Moir, 25
Philippine, 44.

IN RE FITCH'S ESTATE, MAR. 8, 1919. 873

jurisdiction of all grades and kinds of causes.^^ As Mr.
Gushing advanced no other reasons than the above and
cited no authorities, his argument for exclusive consular
jurisdiction under the act of 1848 seems far from con-
vincing.

That it was not understood by his contemporaries to be
exclusive seems clear from the fact that in drafting a new
act, made necessary by the acquisition of extraterritorial
rights in the other countries,^* the State Department ^'^
was careful to insert a provision

"That the jurisdiction of the respective ministers in the countries
hereinbefore named, where the same is allowed by treaty, in all
matters of civil redress or of crimes, except in the cases mentioned
in the twenty-fourth section, shall be appellate only.""

And this wasMone only after

"advantage had been taken of the views presented in the opinion of
the late Attorney-General, Mr. Gushing, concerning the judicial
powers of the United States ministers and consuls in China and
Turkey." "

But if the State Department had accepted those "views"
to the extent of agreeing that the Commissioner's jurisdic-
tion was already "appellate only" such a provision would
have been wholly unnecessary. And Congress in passing it
seems to have adopted the view that a change was needed
in order to make the consular jurisdiction exclusive.

But the Act of 1860 did not purport to abolish the office
of Commissioner nor to take away his original jurisdic-

'^ American Judicature Society Bulletins, VI, IX; Harley, A Unified
Court System.

'^ The Act of 1848 "was passed in reference to this treaty (China)
and to that with the Ottoman Porte." Dainese v. Hale, ante, p. 32.
Meanwhile treaties granting extraterritoriality had been negotiated
with Borneo (1850), Siam and Persia (1856), and Japan (1857
and again in 1858).

""The new measure was prepared wholly in the Department of
State." Moore, Int. Law Dig., II, 624.

'' Act of June 22, 1860, 12 U. S. Stats, at Large, Sess. I, Ch. 176,
p. 78, sec. 27.

" Moore, Int. Law Dig., II, 613.

874 I EXTRA.TFRRITORIAL CASES.

tion ^^ "to hear and decide all cases," etc. It seems rather
to have been a cumulative one applying to additional
countries, conferring jurisdiction upon another "func-
tionary" (the Minister) but leaving in force existing
provisions for such need as might arise. Hence it did not
even mention the Act of 1848 and repealed ^'^ only "incon-
sistent provisions." But there was nothing "inconsistent"
between these two acts. The first, as we have seen, con-
ferred jurisdiction in China and Turkey -" upon "the com-
missioner and the consuls." The second conferred juris-
diction in other countries as well as China and Turkey upon
"the Minister and the consuls." In the other countries the
Minister alone might share such jurisdiction with the con-
suls but in China there was nothing to prevent the Com-
missioner also from sharing it with them. That it was the
intention to make this possible seems apparent from the
fact that our treaty of 1858 with China confirmed juris-
diction in the "consul or othe?- public functionary" ^^ while
the purpose of the act of 1860, as announced in its title,
was "to carry into effect * * * ^j^g treaties * * *
giving certain judicial powers to Ministers and consuls or
other functionaries of the United States." It was, there-
fore, still in order for the President, if he chose, to appoint

" Such could not have been the effect, as regards China, of the
following clause of section 22 of the act:

"If at any time there be no minister of the United States in
either of the countries hereinbefore mentioned, the judicial duties
which are imposed by this act upon the minister, shall devolve
upon the consul-general or consul residing at the capital of the
country, who is hereby authorized and required to discharge the
same."

For there has never been either "consul-general or consul residing"
at Peking. Besides "the judicial duties" of the minister were, for
the most part, appellate.

" Act of 1860, sec. 32.

Neither the act of 1848 nor "any portion thereof" seems to have
been "embraced in any section of said revision" of 1873 and hence
could not have been repealed thereby. Besides its repeal did "not
affect the right to any oflRce" — such as the Commissioner's.

^" Where the office of Commissioner is said to have continued for
a considerable time.

"Art. XI, ante, p. 3.

IN RE FITCH'S ESTATE, MAR. 8, 1919. 875

a Commissioner for China, who would exercise judicial
authority at nisi prius under the Act of 1848, even tho his
diplomatic functions, and even his appellate jurisdiction,
might be absorbed by the Minister.

Nor would such judicial authority be lost by the failure
so to appoint. That would merely suspend its exercise.
And without the express abolition of the Commissioner's
office his potential jurisdiction remained and so long as
it remained, the jurisdiction of the consuls could not be
exclusive.

Thus the law seems to have stood when the act was
passed establishing this court and conferring upon it

The latter provides:

"The consuls of the United States in the cities of China to which
they are respectively accredited shall have the sa7ne ju7'isdiction as
they noiv possess in civil cases where the sum or value of the property
involved in the controversy does not exceed five hundred dollars
United States money and in criminal cases where the punishment
for the offense charged can not exceed by law one hundred dollars
fine or sixty days' imprisonment, or both, and shall have power to
arrest, examine, and discharge accused persons or commit them to
the said court." ^

Now the jurisdiction which they then "possessed" was,
if we are correct in the conclusion just announced, subject
to the original jurisdiction of the Commissioner and the
Minister. The consuls never did "possess" exclusive juris-
diction ; consequently there was none such to retain. Their
jurisdiction having always been concurrent, it so continued ;
and just as it had previously been concurrent with that
of the Commissioner and the Minister, so now, under the
Act of 1906, it became concurrent, within the specified lim-
its, with that of this court.

" Act of Congress of June 30, 1906, 34 U. S. Stats, at Large, Pt.
I, Sess. I, Ch. 3934, sec. 1.
^Id., sec. 2.

876 I EXTRATERRITORIAL CASES.

Nor was this arrangement merely accidental. For it is
well known that this court was established along the lines
of H. B. M. Supreme Court for China (with which the
author of the organic act, Congressman Denby, was some-
what familiar, having lived a decade in China)-* and less
than two years before the passage of said organic act an
"Order in Council" -^ had been promulgated which reenacted
the following provision :

"The Supreme Court shall have in all matters, civil and criminal,
an original jurisdiction, concurrent with the jurisdiction of the several
Provincial (Consular) Courts, to be exercised, subject and according
to the provisions of this Order."

It is not uncommon for American courts of equity to
study their model, the old English High Court of Chan-
(,gj.y 26 ^j^jj fQj. American courts of law to study their model,
the King's Bench,-'' and other common law tribunals,-® in
determining any doubtful point of jurisdiction. The doc-
trine seems fully applicable here and to require that the
"Order in Council" above quoted be given some force.

II.

But let us assume that this court did not acquire con-
current jurisdiction with the consular courts under the

" Far Eastern American Bar Association Publications, I, 14.

"China and Korea Order in Council (1904), sec. 23.

''Federal. Hovey v. McDonald, 109 U. S., 150, 27 L. ed., 888, 3
Sup. Ct., 136.

California. City of Pasadena v. Superior Court, 157 Cal., 781,
109 Pac, 620.

Massachusetts. Jones v. Boston Mill Corp., 4 Pick., 507, 16 Am.
Dec, 358.

Missouri. State ex rel. v. Dearing, 180 Mo., 53, 79 S. W., 454.
And see the writer's article "Equity," Am. & Eng. Encyc. of Law
(2nd ed.), 11, 147, 154.

" "The jurisdiction of the K. B., which court we have by the
revolution succeeded, was declared by the common law." Ex parte
Heath, 3 Hill (N. Y.), 42, 51.

*' Our district courts * * * are invested with all the attributes
of common law tribunals, to the same extent as the King's Bench,
Common Pleas, and Exchequer Courts of Westminster." Davis
County V. Horn, 4 G. Greene (la.), 94.

IN RE FITCH'S ESTATE, MAR. 8, 1919. 877

Act of June 30, 1906. Nevertheless, by virtue of later
legislation we think the same result followed so far as these
cases are concerned. Both of them arose in the consular
district of Shanghai and the consular court for that
district has had a legislative history of its own, quite dif-
ferent from that of the other American Consular Courts
in China. More than a decade ago Congress enacted :

"The judicial authority and jurisdiction in civil and criminal cases
now vested in and reserved to the consul-general of the United States
at Shanghai, China, by the Act of June thirtieth, nineteen hundred
and six, entitled 'An Act creating a United States Court for China
and prescribing the jurisdiction thereof,' shall, subsequent to June
thirtieth, nineteen hundred and nine, be vested in and exercised by
a vice-consul-general of the United States, to be designated from
time to time by the Secretary of State, and the consul- general at
Shanghai shall thereafter be relieved of his judicial functions." "

It seems clear that, while this enactment was in force,
only "a vice-consul-general" could exercise that jurisdic-
tion. But less than six years later Congress passed another
act providing that

"The offices of vice-consul-general, deputy consul-general and de-
puty consul are abolished" ^°

Here again British legislation for China may have been
the guide, for it provides that all

"jurisdiction, civil and criminal, including any jurisdiction by this
Order conferred expressly on a Provincial Court, shall, for and
within the district of the Consulate of Shanghai, be vested exclusively
in the Supreme Court as its ordinary original jurisdiction."*^

But whatever the reason the conclusion seems irresivStible
that by abolishing the "office of vice-consul-general" Con-
gress eliminated the only functionary who was then au-

'"Act of March 2, 1909, 35 U. S. Stats, at Large, Pt. I, Sess. II,
Ch. 235, p. 679.

This in spite of the fact that the Secretary of State (Hamilton
Fish) had ruled that a "deputy consul general" was not a "consular
officer" within the meaning of U. S. Rev. Stats., sec. 4082. See
Moore, International Law Digest, II, 518. Did this, then, remain
"a consular court"?

^"Act of Feb. 5, 1915, 38 U. S. Stats, at Large, Pt. I, Sess. Ill,
Ch. 23, sec. 6, p. 806.

"China and Korea Order in Council (1904), sec. 21.

378 I EXTRATERRITORIAL CASES.

thorized to hold the consular court for the district of
Shanghai and that its jurisdiction thereby lapsed. And,
since the jurisdiction of this court had previously been, in
said consular district, "exclusive" but for said court, its
jurisdiction was necessarily merged in that of this court.
Subsequently a "rider" was attached to the Diplomatic
and Consular Appropriation act providing:

"The judicial authority and jurisdiction in civil and criminal cases
vested in and reserved to the consul general of the United States at
Shanghai, China, by the Act of June thirtieth, nineteen hundred and
six, entitled 'An Act creating a United States Court for China, and
prescribing the jurisdiction thereof,' and vested by the Diplomatic
and Consular Appropriation Act approved March second, nineteen
hundred and nine, in the vice consul general of the United States
to be designated from time to time by the Secretary of State, shall
subsequent to the approval of this Act be vested in and exercised
by a vice consul of the United States at Shanghai, China."*'

When this was enacted, and ever since, there have been
numerous "vice consuls of the United States at Shang-
hai"— the latest accessible State Department Register
showing no less than eight — yet it will be seen that no
provision is made for selecting the one who is to "exercise"
this "judicial authority." Suppose more than one should
assume to act in a particular case: which would have the
"authority"? Is a litigant free to apply to any vice consul
for judicial relief and if so may the adversary apply to a
different one? These are some of the inquiries which in-
dicate that the "rider" comes dangerously near being void
for uncertainty. And perhaps for that reason the one
now actually exercising such authority is not a vice consul
at all, but a consul whose commission, notwithstanding the
repeal above mentioned, purports to authorize him

"to exercise the judicial authority and jurisdiction in civil and
criminal cases, now vested in and reserved to the Consul General
of the United States at Shanghai, China, in accordance v^^ith the
provisions of the Act of Congress approved March 2, 1909."

"^ Act of March 4, 1915, 38 U. S. Stats, at Large, Pt. I, Sess. Ill,
Ch. 145, pp. 1122, 1123.

IN RE PITCH'S ESTATE, MAR. 8, 1919. 879

Be that as it may the rule is elementary that jurisdic-
tional provisions like that under consideration "cannot be
enlarged by intendment."'^ As was said by Chief Justice
Marshall in a case •'' where it was sought by a liberal
construction to give added powers to the Federal Supreme
Court :

"Courts which are created by written law, and whose jurisdiction
is defined by written law, cannot transcend that jurisdiction."

If this is true of our highest tribunal it is much more so
of the consular courts which are "of limited jurisdiction." ^^

III.

But whether this "rider" was effective to undo the pre-
vious merger and recall the lapsed jurisdiction, we need
not determine in order to decide these cases, for we are
convinced, after a prolonged research, that it left this court
with at least concurrent jurisdiction. For it will be ob-
served that when said subsequent act was passed, the lapsed
jurisdiction had fully accrued to, and become part of, this
court's "exclusive jurisdiction." The subsequent act ex-
presses no intent to impair that nor to affect this court in
any way and

"It is presumed the legislature would not effect a measure of so
much importance as the ouster or restriction of the jurisdiction of the
superior courts without an explicit expression of its intention." '*

"Statutes which merely give affirmatively jurisdiction to one court
do not oust that previously existing in another court; and the
jurisdiction of courts of equity, or of the higher courts proceeding
according to the course of the common law, is never taken away
except by plain words or by an equally plain intendment." "

f Baker v. Chisholm, 3 Tex., 157.

'* Ex parte BoUman, 4 Cranch, 75, 2 L. ed., 561.

'^ The Spark v. Lee Choi Chum, 1 Sawy., 713, 22 Fed. Cas., 871.

In approving the ruling of Minister Seward that such jurisdiction
could not be exercised by a "consular agent" Secretary Fish "ruled
that the judicial power in question could be exercised only by 'an
officer de jure as well as de facto,' i. e., an officer authorized by the
terms of the law to exercise it." Moore, Int. Law Dig., II, 623.

" Endlich, Interpretation of Statutes, sec. 155.

" Black, Interpretation of Laws, 123.

880 I EXTRATERRITORIAL CASES.

In other words, when jurisdiction once vests, the mere
conferring of similar jurisdiction upon another court does
not make it exclusive but only concurrent/^" Unless in the
later act or acts

"there are prohibitory or restrictive words used, the uniform inter-
pretation is, that they confer concurrent and not exclusive remedial
authority." "

In the leading case *** an act of Parliament provided that
causes upon appeal thereunder should be finally determined
by the court of quarter sessions and that no other court
whatsoever "shall intermeddle" therewith. It was con-

^' England. Rex v. Merely, 2 Burr., 1040.

Federal. U. S. v. Louisiana, 123 U. S., 32, 31 L. ed., 69; Ames v.
Kansas, 111 U. S., 449, 28 L. ed., 482; Bors v. Preston, 111 U. S.,
252, 28 L. ed., 419.

Alabama. Barclay v. Plant, 50 Ala., 509, 517; Gould v. Hayes, 19
Ala., 438, 450; Dement v. Admr., 13 Ala., 140, 143; State v. Abram,
4 Ala., 272.

California. Courtv^rright v. Water & Mining Co., 30 Cal., 573.

Connecticut. Loomis v. Bourn, 63 Conn., 445, 28 Atl., 569.

Florida. Hays v. McNealy, 16 Fla., 409.

Georgia. Tritt v. Bize, 51 Ga., 494.

Illinois. Nab v. Heald, 41 111., 326.

Indiana. Redden v. Covington, 29 Ind., 118.

Iowa. Koons v. Dyer, Morris (la.), 127; Sterritt v. Robinson, 17
la. 61; Hummer v. Hummer, 3 G. Greene, 42.

Kansas. Shoemaker v. Brown, 10 Kan., 383.

Kentucky. Case v. Fishback, 10 B. Mon., 40.

Maine. Small v. Swain, 1 Me., 133.

Massachusetts. Com. v. Hudson, 11 Gray, 64.

Missouri. State ex rel Renick v. St. Louis Co. Ct., 38 Mo., 402, 408.

New York. Ex parte Heath, 3 Hill, 42; Delafield v. Illinois, 2
Hill, 159.

North Carolina. Humphrey v. Wade, 70 N. C, 280.

Pennsylvania. Kline v. Wood, 9 S. & R., 294.

South Caroliyia. State v. Glenn, 14 S. C, 118.

Tennessee. Taylor v. Pope, 5 Coldw., 413.

Texas. Johnson v. Happell, 4 Tex., 96.

Vermont. First Nat'l Bank v. Hubbard, 49 Vt., 1, 24 Am. Rep., 97.

Washington. Jones v. Reed, 3 Wash., 57, 27 Pac, 1067.

Wisconsin. Gould v. Dodge, 30 Wis., 621.

"Story, Equity Jurisprudence (13th ed.), sec. 80.

'"Rex. V. Morely, 2 Burr., 1040.

IN RE FITCH'S ESTATE, MAR. 8, 1919. 881

tended that this ousted all the courts of the kingdom and
particularly the King's Bench. But the latter declared

"the jurisdiction of this court is not taken away, unless there be
express words to take it away."

In Iowa, the district court had jurisdiction over the
persons and property of the insane. A later act empow-
ered the probate courts to appoint guardians for the
"management of all insane persons * * * and their
estates." It was held that this was insufficient to divest
the district courts of their jurisdiction which they continued
to exercise concurrently with the probate courts,

"The district court in this state," said the Chief Justice," "possesses
the jurisdiction which is conferred upon those courts which are
designated as supenrior. It has been decided that the jurisdiction of
such courts can only be taken away by express words of repeal, or
irresistible implication." "

In Massachusetts the Court of Common Pleas has general
civil and criminal jurisdiction. In 1858 the legislature
passed an act providing that

" 'the several justices of the peace authorized to hear and determine
criminal cases shall within their several counties have jurisdiction'
of all offences which may be punished by fine not exceeding fifty
dollars, or imprisonment not exceeding six months, or both."

Notwithstanding the phrase "all offences" the Supreme
Court, in an opinion by its most eminent member. Chief
Justice Shaw, held that the act did not take away the juris-
diction of the Common Pleas but merely made it concurrent
tho that word was not used in the part of the act contain-
ing the language construed and was used elsewhere in
reference to another court. The learned judge said:

"Before this statute the court of common pleas had jurisdiction
over this subject matter. Is that jurisdiction taken away? It
is no answer to say that another tribunal has jurisdiction; for that
Is very common. It is in such case concurrent jurisdiction, whether
so called in the statute or not. Then is the jurisdiction of the court
of common pleas, which it had before, taken away? There must be

" Hummer v. Hummer, 3 Greene, 42, 45. Compare Sterritt v.
Robinson, 17 la., 61.
' ''Citing 8 Pick. (Mass.), 453; 1 U. S. Dig., sec. 630 & cit.

14008 O. W. 56

882 I EXTRATERRITORIAL CASES.

words of limitation to take it away, either by using the word 'ex-
clusive,' or by repealing the former act giving jurisdiction, by which
it may appear that the legislature meant not only to confer juris-
diction on justices of the peace, but also to take away the other
jurisdiction. Here are no words indicating that it should be exclusive,
nor repealing any specific statute." *^

This reasoning seems fully applicable here. The Act of
March 15, 1915, by which it was sought to revive the vice
consul's jurisdiction, does not use the word "exclusive"
nor purport to repeal any part of the act creating the
United States Court. In fact it does not mention that
court at all and shows no intention to take away its juris-
diction.

In Missouri the County Court had jurisdiction to appoint
guardians for habitual drunkards. Later

"the Legislature passed a law declaring that the Probate Court of
St. Louis county should have jurisdiction in all cases arising under
an act entitled 'An act concerning insane and other persons, incapable
of managing their affairs.' ''

But in spite of this attempted grant of jurisdiction "in all
cases" to the Probate Court, the Supreme Court said :

"That the County Court possessed full and complete jurisdiction
when the proceedings were initiated, is too clear to require any
consideration. Where a tribunal originally obtains and exercises
jurisdiction, that jurisdiction will not be overturned and impaired
by any legislative enactment unless express prohibitory words are
used. * * * -pi^g Probate Court of the county of St. Louis is a
court of limited jurisdiction, and possesses and can exercise no juris-
diction except what is specially conferred on it by law. And where
jurisdiction has been obtained and conferred on another court and
afterwards the same is extended to the Probate Court, the prior
jurisdiction will not be ousted without words of exclusion. * * *

In the last act here, there is nothing that can be construed as an
intention on the part of the Legislature to confer exclusive jurisdic-
tion on the Probate Court. It must therefore be deemed and taken
as simply concurrent with the County Court." **

A Kansas act gave justices of the peace "original juris-
diction of civil actions for the recovery of money only,
where the amount claimed does not exceed $300." But
the State Supreme Court in an opinion by Brewer, J., later
of the Federal Supreme Court, held that the district court

^'Com. V. Hudson, 11 Gray (Mass.) 64 (1858).

*" State ex rel. Renick v. St. Louis Co. Ct., 38 Mo. 402 (1866).

IN RE FITCH'S ESTATE, MAR. 8, 1919. 883

was not ousted of its jurisdiction by said act but continued
to function concurrently.

"The district court," said Justice Brewer," "is a court of general
original jurisdiction of all matters, both civil and criminal. * * *
Unless jurisdiction in any matter is elsewhere located in such manner
as to exclude that court, it has jurisdiction. The mere granting of
original jurisdiction in ordinary actions to other tribunals does not
of itself operate as an exclusion. Both acts may stand, — both tri-
bunals have jurisdiction. The maxim, expressio unias, exclusio alter-
ius, does not apply, for both tribunals are granted jurisdiction."

An Act of Congress provided

"That the probate courts of the Territory of Idaho, in their re-
spective counties, in addition to their probate jurisdiction, be, and
they are hereby authorized to hear and determine all civil causes
wherein the damage or debt claimed does not exceed the sum of
five hundred dollars, exclusive of interest, and such criminal cases
arising under the laws of the Territory as do not require the inter-
vention of a grand jury: Provided, That they shall not have juris-
diction in any matter in controversy, when the title, boundary, or
right to the peaceable possession of land may be in dispute, or in
chancery or divorce cases: And provided further. That in all cases
an appeal may be taken from any order, judgment, or decree of
said probate courts to the district court." ^^

Notwithstanding the proviso and the inclusion of "all
civil causes," it was held *^ that the jurisdiction thus con-
ferred was merely concurrent with that of the district
courts.

Applying to the case at bar the doctrine of these deci-
sions, we find that the "rider" above quoted, and by which
the lapsed jurisdiction is claimed to have been recalled,
contains no "prohibitory or restrictive" words, no "express
words to take awaiy" the vested jurisdiction of this court,
no "words of repeal or irresistible implication" no "words
of exclusion." It fails, therefore, to meet any of the tests
imposed in said decisions.

It is true that the "rider" purports to confer upon "a vice
consul" jurisdiction previously exercised by (and taken

''Henderson v. Kennedy, 9 Kan., 113, (163), 144, (166), (1872).
Compare Gould v. Dodge, 30 Wis., 621, 623 (1872).

'' Act of Dec. 13, 1870, Sess. Ill, Ch. I, 16 U. S. Stats, at Large,
395.

"Greathouse v. Heed, 1 Idaho, 494 (1873).

884 I EXTRATERRITORIAL CASES.

away from) other officers. But it will be remembered that
the other chief exponent of the exclusive character of such
jurisdiction admitted that "it is nowhere said by the statute,
in so many words" ** to be exclusive. The doctrine of the
decisions (mostly after Mr. Cushing's day) is, as we have
seen, that it must be said "in so many words." Not having
been so said, and quite apart from the question whether it
was in fact exclusive, the phraseology of the "rider" is
clearly insufficient to confer, at most, more than concur-
rent jurisdiction.

In cause No. 736 it is alleged that there are certain "cash
deposits * * * at Cleveland, Ohio, estimated at $800
and it is claimed that this sum should be added to the items
of local assets (less than G. $500) to make the jurisdic-
tional amount. But in view of the conclusion just an-
nounced it is likewise unnecessary to determine that question
here. For, regardless of the amount and under either of
the views above expressed, this court has, and must exer-
cise, jurisdiction in both causes.^^

The demurrers are accordingly

OVERRULED.

IN THE UNITED STATES COURT FOR CHINA.

KUNG Che et al., Plaintiffs, v. Arkell & Douglas, Inc.,

Defendant.

[Cause No. 755.]

Loo Wei Chong et al., Plaintiffs, v. Arkell & Douglas,
Inc., Defendant.

[Cause No. 756.]
[Filed March 26, 1919.]

SYLLABUS.
(By the Court.)

1. INJUNCTION: GROUNDS. Like other equitable remedies, injunction
is available only in the absence of an adequate remedy at law.

*' Gushing, Opinions Attorneys General, VII, 507.

** At the next regular session of Congress after the announcement
of this decision an act was passed which transferred to the Commis-
sioner of the United States Court all the remaining judicial functions
of the Vice Consul at Shanghai. (See 41 U. S. Stats, at Large.)

RUNG CHE V. ARKELL & DOUGLAS, MAR. 26, 1919. 885

2. Id. : Id. When sought as ancillary to the main relief right to the

latter must be clear.

3. RESCISSION as a contractual right distinguished from cancellation

as an equitable remedy, the former being available without

resort to the courts but only for extreme and fundamental
grounds.

4. Id.: Grounds. It seems at least doubtful whether the right to

rescind arises from the mere delivery of goods not specified in
the contract.

Mess7's. Jernigan, Fessenden & Rose, by Mr. Rose, for
complainants.

Messrs. Fleming & Davies, by Mr. Fleming, for de-
fendants.

LOBINGIER, J.:

These are bills in equity each praying for the rescission
of a certain contract therein mentioned, that complainants
be saved harmless from liability upon certain drafts drawn
in pursuance of said contract and for an injunction to
restrain the defendants from suing thereon in another
court. In cause No. 755 it is alleged that —

"defendant tendered delivery to the plaintiffs as the goods sold
under the said contract and that subsequent to the acceptance of
the draft as aforesaid and within a reasonable time after their
arrival, the plaintiffs examined the goods above mentioned and,
finding that they are not up to the specifications called for by the
contract, refused to accept the same and thereupon rescinded the
contract and on the 21st day of March, 1919, did notify the defendant
thereof in writing and did request the defendant to arrange with
the said Philippine National Bank that the plaintiffs should be
released from their acceptance of the draft as aforesaid," etc.

In cause No. 756 it is alleged that —

"plaintiffs refused to accept the said draft because they had been
informed that the goods shipped were not up to contract specifica-
tions and notified the defendants in writing to that effect."

It is urged that as this Court is given jurisdiction by the
filing of the present suit the entire controversy should be
adjudicated here and that an injunction should be granted
in order to prevent a multiplicity of actions.^ If this were
a case where the jurisdiction of the court to grant the main

^ Citing, Ruling Case Law, 349.

886 I EXTRATERRITORIAL CASES.

relief sought were clear, the doctrine relied upon might
be applied in issuing the injunction as ancillary relief.
But an examination of the bills fails to disclose a clear
right to the main relief prayed, to wit, a decree for the
rescission of the contracts. Indeed it will be seen that
complainants according to their averments, have already
"rescinded." Now if the failure to deliver according to
the specifications justified rescission at all they appear to
have exercised their right to the full extent necessary.
For

"Rescission * * * is a right of the complainant, and not
a means for the assertion thereof; it is an equity, rather than an
equitable remedy." '

It is true that equitable jurisdiction is not infrequently
exercised for the purpose of relieving the suitor from a
contractual obligation; but this is generally upon grounds
like "fraud and mistake" ^ which vitiate the transaction
ab initio. Moreover, the usual purpose of equitable inter-
vention in such cases is to prevent the use of some docu-
mentary evidence of the agreement and the remedy, there-
fore, is more properly cancellation * than rescission which,
as already noted, is rather a iHght which accrues to a
contracting party under special circumstances and which
may be utilized without necessarily seeking judicial aid at
all. For if one is entitled to rescind a contract he need
only wait until the other party seeks to enforce it and
then off'er by way of defense the grounds of rescission.
There is, in other words, a clear distinction between the
contractual 7^ight to rescind and the equitable remedy of
cancellation, sometimes less properly known as rescission.

But from the bills before us it is not at all clear that
complainants were entitled to rescind. As declared in a
work of authority:

"The right to rescind * * * is an extreme one and does not
arise from every breach. * * * xhe general rule is that rescis-
sion will not be permitted for a slight or casual breach of the
contract, but only for such breaches as are so substantial and fun-

* Bispham, Principles of Equity (7th ed.), 652.

"Id., 653.

' Pomeroy, Equity Jurisprudence (4th ed.), V, sec. 2105 et seq.

IN RE BIDDLE'S will, APR. 7, 1919. 887

damental as to defeat the object of the parties in making the agree-
ment. Mere delay in the execution of a contract, the terms of which
will be satisfied by performance within a reasonable time, does not
in itself entitle the other party to rescind; but to have this effect,
the implication arising from nonperformance of the contract must
be inconsistent with its being still in forced *

Now it is not even alleged in these bills that the time
for delivery has yet expired. It is alleged indeed that the
goods tendered or en route are not such as the contract
requires but, for aught that appears, time still remains
for delivering the specified sort. Besides a cursory exam-
ination has disclosed no case where the right of rescission
was upheld upon the mere ground of non-delivery. For in
such a case an action for damages lies and would seem to
be adequate. If so equity will not, of course, interfere.

Complainants' right to the main relief sought is conse-
quently far from clear and the injunction which is prayed
as ancillary relief must therefore be denied regardless of
whether proceedings in a foreign court will be enjoined
in aid of a bill setting forth clear grounds for equitable
intervention.

IT IS so ORDERED.*'

IN THE UNITED STATES COURT FOR CHINA.
In re Charles A. Biddle's Will.

[Cause No. 759; filed April 7, 1919.]

SYLLABUS.

(By the Court.)

WILLS: Beneficiaries: Subsequent Divorce. A devise to "my wife,
Mrs. Eleanor Biddle" is not revoked by the subsequent divorce
of the beneficiary, tho at her instance.

Messrs. Fleming & Davies, by Mr. Davies, for petitioner.
No appearance contra.

" Corpus Juris, XIII, 613. "A slight or partial neglect on the
part of one of the contracting parties to observe some of the terms
or conditions thereof, will not justify the other party at once to
abandon the agreement." Weintz v. Hafner, 78 111., 27.

' These causes were subsequently dismissed upon motions of the
respective plaintiffs. Ed.

388 I EXTRATERRITORIAL CASES.

LOBINGIER, J.:

The due execution of the instrument here offered for
probate, as well as the testamentary capacity of the
testator, has been sufficiently proved and the only legal
question which appears likely to arise in the case concerns
the capacity of the beneficiary who is named in the in-
strument as "my wife, Mrs. Eleanor Biddle." As she is
likewise named as executrix, and as her rights in either
capacity appear to be the same, it seems advisable to settle
the question at the outset.

The instrument was executed before the consular au-
thorities on January 28, 1918. It appears from the records
of this Court that on January 14, 1919, a decree of absolute
divorce was granted the wife and the question arises
whether such decree alone, there having been, according
to the testimony, no express revocation of the instrument,
deprives the petitioner of her right to take under the will.
The current of authority appears to be uniform to the
effect that, where she is mentioned by name, the word
"wife" will be treated as descriptive only, and the mere
fact that she subsequently ceases to be such will not effect
a revocation of the will.^

In one of these authorities the reason for the doctrine
is stated as follows:

"Can it be said that the obtaining by the wife of a divorce by
reason of the misconduct of the testator entailed upon him any moral
duty to destroy the provision which he had made in his will for the
woman who was for years his faithful wife, in order to pile up

^ California. In re Gruendike's Estate, 154 Cal., 628, 98 Pac, 1057.

New Jersey. Bullock v. Zilley, I. N. J. Eq., 489.

New York. Davis v. Kerr, 3 N. Y. App. Div., 322, 38 N. Y.
Supp., 387.

Ohio. Charlton v. Miller, 27 Ohio St., 298, 22 Am. Rep., 307.

Pennsylvania. In re Jones' Estate, 211 Pa. St., 364, 69 L. R. A.,
940, 60 Atl., 915, 107 Am. St. Rep., 581, 3 Ann. Cas., 221, 10 Prob.
Rep. Ann., 490 (affirming 29 Pa. Co. Ct., 593) ; Mellon's Estate, 28
W. N. C, 120; Sharpe's Estate, 15 W. N. C, 419.

England. See Boddington v. Clairat, L. R. 25 Ch. Div., 685, where
a legacy to the wife by name was upheld but the bequest of an an-
nuity "so long as she shall continue my widow and unmarried" was
declared inoperative.

SUNG KYA YI V. DODGE ET AL., APR. 8, 1919. 889

far more than a competency for their child? The only inference
which can be drawn from the record in this case is that the testator,
and he alone, was responsible for the rupture of the marital ties.
It may well be, then, that by the provision in his will he intended to
make some reparation for the sorrow and distress he brought upon
his wife. To impute to him such intention would be more kind than
to presume, as is urged in the argument, that he was filled with
resentment, and became possessed by an ignoble purpose which he
failed to carry out. He must have known that he could change or
destroy his will at any time; yet he did not." ^

A different interpretation is required where the bequest
is to the "widow" - or where a division of the property is
made at the time of the divorce. Neither of these quaUfi-
cations affects this case, however, and the petitioner is
accordingly entitled both to act as executrix and to take
under the will. Letters Testamentary may issue to her
upon taking and subscribing the oath, bond being expressly
waived by the testator.

IN THE UNITED STATES COURT FOR CHINA.

Sung Kya Yi, Plaintiff, v. Dodge & Seymour (China),
Ltd., Defendant.

[Cause No. 761; filed April 8, 1919.]

SYLLABUS.
(By the Court.)

COSTS AND FEES: REMISSION. No authority found for remitting
costs and fees to a foreign plaintiff tho suing in forma 'pauperis.

Messrs. Rodger & Haskell, by Mr. Haskell, for the motion.
No appearance contra.

LOBINGIER, J.:

A motion is here presented "for leave to sue in forma
pauperis * * * upon the ground that the plaintiff is
without sufficient means to pay the court fees."

^In re Jones' Estate, 211 Pa. St., 364, 69 L. R. A., 940, 60 Atl.,
915, 107 Am. St. Rep., 581, 3 Ann. Cas., 221, 10 Prob. Rep. Ann., 490
(affirming 29 Pa. Co. Ct., 593).

*Cyc., XL, 1456 (82).

890 I EXTRATERRITORIAL CASES.

The organic act establishing this Court provides that —

"The tariff of fees of said officers of the court shall be the same
as the tariff fixed for the consular courts in China." ^

At the time of this enactment "the tariff already fixed
for the consular courts" was in the form of a regulation
by the Minister adopted in 1888 but neither in it or in
any of the other consular court regulations have we found
authority for remitting fees to any litigant. In 1892 Con-
gress passed an act - which authorizes the granting of such
relief to "any citizen of the United States" but the plaintiff
alleges that he is not such. It is true that Congress after-
wards passed a special act ^ for the District of Columbia
which does not impose such limitation, and it is also true
that such acts are considered "laws of the United States"
and as such are extended here when no general act of
Congress is applicable. But we have held in several cases *
that where there is both a general and a special act of
Congress on the same subject the former will be considered
as the one extended here.

There being no authority for the remission of costs in
a case like this the motion must be

DENIED.^

IN THE UNITED STATES COURT FOR CHINA.
JUDAH I. Ezra, Plaintiff, v. W. L. Merriman, Defendant.

[Cause No. 701; filed April 9, 1919.]

SYLLABUS.
(By the Court.)

1. COSTS, distinguished from fees.

2. Id.: Authority for Taxation. In the absence of provisions

in the Court Regulations now or later relative to costs, resort

* Act of Congress of June 30, 1906, 34 U. S. Stats, at Large, Part
I, Ch. 3934, sec. 9.

'Act of Congress of July 20, 1892, Sess. I, 27 U. S. Stats, at
Large, Ch. 209, sec. 1, p. 252.

'Act of Congi-ess of March 3, 1901, Sess. II, 31 U. S. Stats, at
Large, Ch. 854, sec. 176.

* United States v. Diaz, ante, p. 784; Ezra v. Merriman, ante, p. 809.
' A similar order had been made in April, 1918, upon application

to file w^ithout fees the case of Mortkeevitch v. Bagaman.

EZRA V. MERRIMAN, APR. 9, 1919. 891

may be had to the Revised Statutes which prevail over any-
special Act of Congress.
3. Id.: Id.: Taking Depositions. Under Revised Statutes, sec. 824,
costs are taxable for depositions only when "admitted in
evidence."

Messrs. Jernigan, Fessenclen & Rose, by Mr. Rose, for
the motion.
Allison D. Gibbs, Esq., contra.

LOBINGIER, J.:

This is a motion to require plaintiff, at whose instance
this cause was dismissed, to pay "the necessary expenses"
of taking certain depositions which were filed in the Clerk's
office. The motion is based on a provision of the special
act ^ of Congress relating to Alaska which reads as follows :

"A party entitled to costs shall also be allowed for all necessary
disbursements, including the fees of officers and witnesses, the neces-
sary expenses of taking depositions by commission or otherwise,
the expenses of publication of the summons or notices, and
the postage where the same are served by mail, the compensation
of referees, and the necessary expense of copying any public record,
book, or document used as evidence on the trial."

We cannot agree with plaintiff's counsel that the sole
authority for taxing costs in this jurisdiction is found in
the Court Regulations. It is true that the organic act
provides that "the tariff of fees of said officers of the
Court shall be the same as the tariff already fixed for the
consular courts in China." - But the terms "fees" and
"costs" are not synonymous. The former include compen-
sation to the officer; the latter often afford reimbursement
to the litigant.^ Now the provision above quoted from the
organic act purports to cover only the "fees of said offi-
cers," i. e., marshal, clerk, etc. It does not attempt to
prescribe the costs which may be awarded to a party.

' Act of June 6, 1900, Sess. II, 31 U. S. Stats, at Large, Ch. 786,
Tit. II, sec. 513.

• Act of June 30, 1906, 34 U. S. Stats, at Large, Ch. 3934, sec. 9.
' Corpus Juris, XV, 20.

392 I EXTRATERRITORIAL CASES.

Doubtless in many instances these would include fees which
the party had paid, but not merely such.

The principal Federal legislation * regarding costs was
first enacted in 1853 and was subsequently extended to the
territories ^ and reenacted '^ in the District of Columbia so
late as March 3, 1901. Now we have already held in
several cases ^ that where there is both a general and a
special act of Congress covering the same subject the
former prevails. Moreover, where there are two special
acts on the same subject the later will ordinarily be applied.
In this instance the provision of the Revised Statutes re-
lating to costs is both a general act and is also, by virtue
of its reenactment for the District of Columbia, a later one
than that invoked by defendant's counsel. It may be that
the latter is more suitable, i. e., a more equitable provi-
sion— but it does not follow that the general law is un-
suitable. On the contrary we think it both suitable and
applicable and we should not be justified in ignoring it
merely because an earlier and special act might seem to us
more suitable.

The general act allows "for each deposition taken and
admitted in evidence in a cause, two dollars and fifty
cents." '^ As this cause was dismissed before trial, no
depositions were off'ered in evidence and consequently none
could be admitted. And, under what seems to us the only
natural construction ^ of the statute, that item of costs is
not taxable.

The motion is accordingly

OVERRULED.

* Act of Congress of February 26, 1853, Sess. II, 10 U. S. Stats,
at Large, Ch. 80, p. 161; U. S. Rev. Stats., 823 et seq.

' U. S. V. Averill, 130 U. S., 335, 32 L. ed., 977.

' 31 U. S. Stats, at Large, Ch. 854, sees. 1108 et seq.

'' United States v. Diaz, ante, p. 784; Ezra v. Merriman, ante, p. 809;
Sung Kya Yi v. Dodge & Seymour (China), Ltd., ante, p. 889.

'U. S. Rev. Stats, sec. 824; D. C. Code, sec. 1109.

'Corpus Juris, XV, 138 (68).

IN RE bell's will, APR. 14, 1919. 893

IN THE UNITED STATES COURT FOR CHINA.
In re Amy Bell's Will.

[Cause No. 753; filed April 14, 1919.]

SYLLABUS.
(By the Court.)

1. WILLS: Codicils: Holographic codicils are valid in this juris-

diction.

2. Id.: Id.: A codicil may be holographic tho the original instrument

was regularly subscribed and attested.

3. Id. : Id. : The codicil may take the form of an erasure and inter-

lineation provided it is in the decedent's handwriting and duly
proved.

Messrs. Jernigan, Fessenden & Rose, by Mr. Fessenden,
for the proponents.

Messrs. Fleming & Davies, by Mr. Fleming ■ for other
parties interested.

LOBINGIER, /. ;

The testimony of the two subscribing witnesses appears
to be sufficient as to the due execution of the instrument
here offered for probate and also as to the capacity of the
testatrix. It was executed while the testatrix was in a
hospital. As originally drawn its first clause bequeathed
the personal estate of the testatrix "to Annie Bell, sister of
my late husband, John A. Bell." It appears that the in-
strument was then placed in the custody of a Spanish cleric,
Padre Castrillo, and that about three weeks after its execu-
tion the testatrix came to him in company with her sister,
Mrs. Belyea, asked for the instrument, crossed out the word's
above quoted and wrote instead of the name there written
*'my sister, A. U. Belyea. A. Bell." The testatrix also
stated, according to Padre Castrillo, that she wished to
give the property to her sister.

An holographic will is valid in this jurisdiction according
to prior decisions of this Court ^ and where such is the case

^ In re Allen's Will, ante, p. 92. In re Lucy Lucker's Will, ante,
p. 626. In re Kavanaugh's Will, ante, p. 842.

g94 I EXTRATERRITORIAL CASES.

an holographic codicil is likewise permitted.- Moreover,
the codicil may be holographic even tho the original instru-
ment was regularly subscribed and attested.^ The codicil,
too, may take the form of an erasure and interlineation as
here ' and the effect is to republish the whole instrument
as modified by the codicil.'^

Such being the law we think there can be no doubt that
the interlineation effected by the testatrix in her own hand-
writing and in the presence of witnesses was a valid codicil
and resulted in substituting the beneficiary then named for
the previous one. Indeed the latter offered no opposition
to the probate of the instrument as modified, tho represented
by counsel and tho opportunity was given both by published
and actual notice and by adjournment for that purpose.

It is accordingly considered and decreed that the instru-
ment "Ex. A" attached to the petition be admitted to probate
as the last will and testament of the said deceased and that
letters testamentary issue to the parties therein named as
executors upon their taking the oath and (in the case of
one) submitting to the jurisdiction of this Court, bond
being expressly waived.

IN THE UNITED STATES COURT FOR CHINA.
In re Trinidad's Will.

[Cause No. 688; filed April 17, 1919.]
SYLLABUS.

(By the Court.)

1. WILLS: Interpretation. Particular directions prevail over gen-
eral provisions in a w^ill vv^hen such is clearly the testator's
intent.

''Maryland. Brown's Ex'r v. Tilden, 5 H. & J., 371.

Montana. Barney v. Hays, 11 Mont., 571, 29 Pac, 282, 28 Am.
St. Rep., 495.

Virginia. Perkins v. Jones, 84 Va., 358, 4 S. E., 833, 10 Am.
St. Rep., 863.

'In re Soher, 78 Cal., 477, 21 Pac, 8; Barney v. Hayes, 11 Mont.,
99, 27 Pac, 384.

* LaRue v. Lee, 63 W. Va., 388, 60 S. E., 388, 13 Prob. Rep., 442.

' In re Ladd's Estate, 94 Cal., 670.

IN RE TRINIDAD'S WILL, APR. 17, 1919. 895

2. Id.: Trusts. A bequest to a mother and child or children creates

a trust in favor of the latter.

3. Id.: Equality of Beneficiaries. And each takes an equal share

unless the contrary intent is expressed.

LOBINGIER, /. .'

The application of the executrix for leave to make dis-
tribution and for her own discharge, calls for a construction
of the first clause of the will which, as translated (the
original being in Tagalog), reads as follows:

"I, Demetrio R. Trinidad, do hereby declare that in case of my death
my beloved wife Emilia Fernandez of Trinidad be solely authorized
to have, to hold and to dispose of my personal belongings as well as
my funds (superannuation) in the Municipal Council, and from
which sum I desire that she (my wife) give my mother, Mrs. Sil-
vestra de los Reyes, the sum of $500 and the residue from my said
funds, I give to my wife and my son Ludovino Trinidad."

The evident intent of the testator being to provide for
his mother and son as well as for his wife, the rule ^ is
that these particular expressions prevail over the general
phraseology in the first part of the clause which authorizes
the widow "to have, to hold and to dispose of," etc. The
provision for the mother is clear enough but the bequest
"to my wife and my son" raises a question both as to the
capacity and as to the share of each. "A devise of real
estate to one and his children operated at common law to
vest in the devisees a joint estate." ^ Here no real estate is
involved and the rule seems to be that under such phra-
seology the mother takes the property in trust for herself
and the children.^

As to the share which each takes in such a case, the
presumption is in favor of equality.*

'Cyc, XL., 1394 (22).

■In re Estate of Utz, 43 Cal., 200, 204, citing Gates v. Jackson, 2
Strange, 1171.

'Williams v. Williams, 16 Lea (Tenn.), 164, 172; Stratton v.
McKinnie (Tenn. Ch.), 62 S. W., 636, 638.

* Eberts v. Fisher, 44 Mich., 551, 7 N. W., 211.

896 I EXTRATERRITORIAL CASES.

"The rule ordinarily is that, where a conveyance is made to a
woman and her children then living, they take equally." °

A similar principle is applied in construing bequests, and
where there are but two beneficiaries they take by moities."

The petition of the executrix asks that the share of the
son "be invested in Shanghai municipal debentures in the
name of the Clerk of this Court." This appears to be a
proper execution of the trust, especially in the absence of
a legal guardian of the son who is still a minor, and it is
accordingly ordered that after such investment the executrix
proceed to distribute the residue of the estate in accordance
with the terms of the will as hereinbefore construed. Upon
the filing of proper receipts showing such distribution the
executrix will stand discharged, her final account being
hereby approved. It appearing that notice to creditors
has been duly published and the time for filing claims has
expired, all further claims are hereby barred.

IN THE UNITED STATES COURT FOR CHINA.

hi re PETITION FOR Bankruptcy of the American Food
Manufacturing Company, Ltd.

[Cause No. 763; filed April 30, 1919.]

SYLLABUS.
(By the Court.)

1. BANKRUPTCY: APPLICABILITY OF Fe2)ERAL Law. The Bankruptcy

Act of July 1, 1898, is (1) a general "law of the United States,"
(2) "necessary to execute the treaties" with China, and (3)
"suitable" for that purpose; and is therefore "extended over
all American citizens in China."

2. Id. : Jurisdiction. The law being thus extended, its enforcement

devolves upon the existing judicial machinery, which is, nat-
urally, this Court.

' Stratton v. McKinnie (Tenn. Ch.), 62 S. W., 638, citing Arrington
V. Roper, 3 Tenn. Ch., 572, 574; Bunch v. Hardy, 3 Lea, 543, 548;
Beecher v. Hicks, 7 Lea, 207, 209, 210; Cannon v. Apperson, 14 Lea,
553, 576.

"Field v. Eaton, 16 N. C, 283; Hall v. Stephens, 65 Mo., 670, 27
Am. Rep., 302, 306.

IN RE BANKRUPTCY PETITION, APR. 3 0, 1919. 897

3, Id. : Capacity to Petition. Where his claim exceeds the value of
his securities, a secured creditor may petition to institute bank-
ruptcy proceedings.

Messrs. Fleming, Davies & Brijan, by Mr. Bryan, for the
demurrants.

M. L. Heen, Esq., contra.

LOBINGIER, /.:

To petitions under the Federal Bankruptcy Act certain
judgment creditors demur, alleging lack of jurisdiction on
the part of this Court in such cases, and in argument counsel
for the demurrants questions the applicability in this juris-
diction of said bankruptcy act principally on the ground
that it enumerates various courts, all federal, upon which
jurisdiction in bankruptcy is conferred and fails to mention
this Court. As the present Federal Bankruptcy Law ^ was
enacted eight years before the statute establishing this
Court, the latter was naturally not mentioned. But the
test of jurisdiction under extraterritoriality is found not
merely in the text of the particular act in question but in its
provisions as a whole as interpreted in connection with the
extending act. Nearly all American statute law in this ju-
risdiction is applied in a manner and over a territory differ-
ent from what was in the legislative mind at the time of
its enactment and the question always arises whether it is
(1) one of "the laws of the United States," (2) "necessary
to execute the treaties" with China, and (3) "suitable to
carry them into effect." ^ If it meets these tests it is treated
as "extended over all citizens of the United States in
China," ^ regardless of the original purpose or intent of
its enactment.

Now there can be no question but that the Federal Bank-
ruptcy Act is "a law of the United States." Counsel for
the demurrants referred to it as "a special act" because it

' Act of Congress of July 1, 1898, Sess. II, 30 U. S. Stats, at Large,
Ch. 541, p. 544.

' Act of Congress of August 11, 1848, 9 U. S. Stats, at Large, Ch.
150, p. 276, sec. 4; Act of Congress of June 22, 1860, 12 U, S. Stats.
at Large, Ch. 179, p. 73, sec. 4.

*Id.

14008 O. W. 57

898 I EXTRATERRITORIAL CASES.

covers a particular field of legislation; but in that sense
practically all statutes are special. In territorial scope the
act was as broad as it then could be made for it covered
specifically all American territory. Moreover, the subject
is one w^hich is expressly reserved to Congress for it "to
establish * * * uniform laws * * * thruout the
United States," * and the exercise of that power suspends
all insolvency laws enacted by the states.^ It would seem
difficult, indeed, to find a better example of a general "law
of the United States" as distinguished from a special one.

Nor would it seem to be doubtful that the extension of
such a law to this jurisdiction is "necessary to execute the
treaties" with China, the first of which required our govern-
ment to regulate

"all questions in regard to rights, whether of property or person,
arising between citizens of the United States in China * * *
and all controversies occurring in China between citizens of the
United States and the subjects of any other government." "

Some provisions regarding bankruptcy would certainly
seem to be "necessary" for the regulation of such rights
and the adjustment of such controversies. Indeed, this
very proceeding, in which most of the creditors and claim-
ants are Chinese, demonstrates the necessity of such a law;
for could the United States Government fulfill its treaty
obligations to China and her citizens if it failed to provide
for such an emergency?

Finally, it seems quite as unquestionable that the act is a
"suitable" one for few pieces of American legislation have
been framed with greater care or based upon longer ex-
perience. The first Federal Bankruptcy Law ' was enacted
in 1800 and repealed ** in 1803. The second "" was enacted

* Federal Constitution, Art. I, sec. 8 (4).

° Sturges V. Crowninshield, 4 Wheat. (U. S.), 122, 4 L. ed., 529, per
Marshall, C. J.

' Art. XXV, ante, p. 2.

' Act of Congress of April 4, 1800, 2 U. S. Stats, at Large, Ch. 19,
p. 19.

' Act of Congress of December 19, 1803, 2 U. S. Stats, at Large, Ch.
6, p. 248.

" Act of Congress of August 19, 1841, 5 U. S. Stats, at Large, Ch. 9,
p. 440.

IN RE BANKRUPTCY PETITION, APR. 30, 1919. 899

in 1841 and repealed ^° in 1843. The third ^' was passed in
1867 and repealed ^- so as to take effect in 1878. The
present law has, therefore, been in force nearly twice as
long as any of its predecessors. It has been supplemented
and strengthened by subsequent legislation and by elaborate
Supreme Court rules but no movement for its repeal has
appeared and of all American legislation on the subject it
would seem to have met the test of suitability.

The law being thus extended to China its enforcement
must be left to the judicial machinery on the ground which
will naturally be this Court. The fact that other courts are
given exclusive jurisdiction elsewhere offers no impedi-
ment, for such provisions aie merely local and are not ex-
tended. Thus the provisions of the criminal code enacted
for Alaska were held to be "within the meaning of the
statute conferring jurisdiction upon the United States Court
for China" '^ altho said code expressly conferred exclusive
jurisdiction upon other courts. So this Court has exercised
jurisdiction in divorce, adoption proceedings, vagrancy, and
juvenile offences, applying laws which were originally in-
tended for, and restricted to, other courts but which were
construed as having been extended here by the general
statutes above cited and, being extended, were required to
be enforced by the existing judicial machinery. Of course
we are not bound by all the procedural provisions of the
statute. For bankruptcy was one of the subjects touched
upon in the Court Regulations " which the Judge of this
Court is given authority "to modify and supplement." ^^
But the framework of the remedy is made available by the
statute.

'" Act of Congress of March 3, 1843, 5 U. S. Stats, at Large, Ch. 82,
p. 614.

" Act of Congress of March 2, 1867, 14 U. S. Stats, at Large, Ch.
176, p. 517.

"^Act of Congress of June 7, 1878, 20 U. S. Stats, at Large, Ch.
160, p. 99.

'' Biddle v. United States, ante, p. 126.

"Sec. 55.

" Act of Congress of June 30, 1906, 34 U. S. Stats, at Large, Ch.
3934, sec. 5.

900 I EXTRATERRITORIAL CASES.

Another ground of demurrer is that the petitioner "has
not the legal capacity to institute" these proceedings, the
basis of this being the averment that "petitioner's claim is
by mortgage." But it is also alleged (par. 2) that

"Petitioner is one having provable claim, in excess of any security,
to the sum of Five Hundred Dollars, United States Currency."

Now the Bankruptcy Act ^" permits a secured creditor
to petition in order to institute such proceedings where, and
to the extent that, his claim "exceeds the value of such se-
curities," and this right is fully recognized in the authority "
cited by demurrants' counsel.

The petition being sufficient as regards the objections
urged, the demurrer is

OVERRULED.

IN THE UNITED STATES COURT FOR CHINA.
: United States v. Walter G. Wallace.

[Cause No. 776; filed June 3, 1919.]

SYLLABUS.

(By the Court.)

1. CONSPIRACY need not succeed, nor even be shown possible of con-

summation, to be punishable.

2. Id. : Evidence reviewed and found sufficient to convict.

3. Id. : Id. Failure to call a witness, present by subpoena at a party's

request, justifies the inference that the testimony would be ad-
verse to the latter.

4. Id, : Declarations of one co-conspirator are admissible against all.

5. Id.: The Penalty may be more severe than for the crime to com-

mit which the conspiracy was formed.

Chauncey P. Holcomb, Esq., U. S. Dist. Atty., for the
prosecution.

Arthur S. Allan, Esq., for the defense.

LOBINGIER, J.:

The information herein charges that the accused and two
others (not citizens of the United States)

" 30 U. S. Stats, at Large, Ch. 541, sec. 56 b. Cf. In re Alexander,
1 Lowell (U. S.), 470, 1 Fed. Cas., 351, decided under the Act of
1867 but quite as applicable under the present Act.

" Emerine v. Tarault, 219 Fed., 68.

UNITED STATES V. WALLACE, JUNE 3, 1919. 901

"did conspire, combine, confederate and agree together between and
among themselves to sell about thirty-two pounds of opium to one,
Sing Chong, a citizen of the Republic of China, and accepted in
payment of said sale of opium, monies, jewelry and bonds to the
approximate value of One Thousand Dollars Mexican ($1,000 Mex.) ;
and thereby * * * -was and is guilty of the crime of conspiring
to commit an offense against the United States."

The story as detailed by the complaining witness, a tailor,
is that the accused came to his store to order clothes ; that
on a second visit he broached the subject of selling opium
and later delivered a sample stating that it was not smuggled
and was safe to buy ; that afterward an agreement was
reached, which was consummated at defendant's house, for
the sale of thirty-two pounds of opium for which the com-
plaining witness delivered to the accused $700 in cash, a
Chinese war bond for $100 and a pair of bracelets valued
at $200 ; that the accused thereupon wrote and delivered the
following memorandum which was introduced in evidence:

"Shanghai.
Received of Mr. Sing Chung dollars one thousand
$1,000 on account of which is due for deposit.

Wallace.
8-5-19." (Ex. B.)

The complaining witness testified that the accused then
went out, ostensibly to get the opium, but failed to return
and never did deliver it nor refund more than a small por-
tion of the money. This testimony is corroborated in part
by another Chinese and his wife who tell of having loaned
the complaining witness money to purchase opium, as he
stated, and to being present at the house of the accused
when he received the money.

The complaining witness further states that one Da Rosa
whom the information names as co-conspirator and whose
declarations would for that reason be admissible against
the accused,^ was at defendant's house when the deal was
consummated (a statement corroborated by one of the other
Chinese witnesses) ; that Da Rosa left with the accused
after the money was paid and that later Boggs, the other
alleged conspirator, went out and returned, stating that

' U. S. v. Leonhardt & Terry, ante, p. 790; U. S. v. Cassidy, 67
Fed., 698, 703.

902

I EXTRATERRITORIAL CASES.

the accused was at the house of the complaining witness
(which was found not to be the case) ; that all three of the
alleged conspirators were seen leaving together in an
automobile and that Da Rosa told complainant that he
had better disappear for a few days and not testify or he
would be condemned; also that defendant's mother-in-law
would refund the balance of the money. The portion which
was returned ($100) was acknowledged (Ex. 2) as "re-
ceived of" the latter and Da Rosa and the same two
executed promissory notes (Ex. D & E) to the complaining
witness for the entire amount.

We find nothing in the record which would justify us
in rejecting the testimony of these witnesses. The asser-
tion in argument that they are opium dealers or smokers
is denied by them and is unsupported. And we are partic-
ularly without justification for disregarding their testimony
in view of the failure of the defense to attempt the slightest
refutation. We pass over the silence of the accused, for
that was his privilege,- but the record shows that the de-
fence requested and obtained the attendance of Da Rosa
as a witness but failed to have him testify and the inference
in such a case is that his testimony would have been un-
favorable ^ to defendant or in other words would have

' People V. Courtney, 94 N. Y., 490; U. S. v. Navarro, 3 Philippine,

143, 154.

'Federal. U. S. v. Schindler, 10 Fed., 547, 550; U. S. v. Leonhardt
& Terry, cite, p. 790.

Maine. State v. McAllister, 24 Me., 139, 144.

Michigan. People v. McGarry, 136, Mich., 316; 99 N. W., 147.

New York. People v. Hovey, 92 N. Y., 554; Gordon v. People, 33
N. Y., 501, 508; People v. Dyle, 21 N. Y., 578.

Philippines. U. S. v. Kosel, 24 Philippine, 594, 606; Sy Joe Lieng
V. Sy Quia, 16 Philippine, 137, 161.

Vermont. State v. Ward, 61 Vt., 153; 17 Atl., 483, 490.

"A failure to produce proof, when in the power of the party, is
recognized even in the criminal cases as proper to be considered."
Seward v. Garlin, 33 Vt., 583, 592.

Virginia. Sutton v. Com., 85 Va., 128; 7 S. E., 323, where the
Prosecuting Attorney was prohibited by statute from commenting on
defendant's failui'e to testify.

UNITED STATES V. WALLACE, JUNE 3, 1919. 903

corroborated the complainant whose claims are correspond-
ingly strengthened.

The evidence must, therefore, be deemed sufficient to
show the purpose of selling opium in China, which is itself
a crime,^ and a conspiracy to that end in which Da Rosa,
by reason of his active connection, shared. It was not
necessary to show that the conspiracy succeeded ^ nor even
that its consummation was possible ° and we need not, there-
fore, stop to consider whether the accused ever actually
had opium to sell. All that was required was to prove
that "two or more persons" did "conspire * * * to
commit any offense against the United States" and that "one
or more of such" did "any act to effect the object of the
conspiracy." ^ That much, it seems clear from the whole
case, has been proven and we must accordingly find the
accused guilty as charged.

The penalty for selling opium is a fine only — the inad-
equacy of which we have had occasion to comment on
before.® But the penalty for conspiracy may be both fine
and imprisonment,^ and their imposition, tho more severe
than the punishment for the crime itself, has been upheld
by the Supreme Court.^"

'24 U. S. Stats, at Large, 409, Ch. 210; Suppl. U. S. Rev. Stats.,
Vol. I, Ch. 210.

=^ Williamson v. U. S., 207 U. S., 425, 52 L. ed., 278; Curley v. U. S.,
130 Fed., 1; U. S. v. Green, 115 Fed., 843.

"The law in its object is preventive; by inflicting the penalty on
the determination to commit the crime." U. S. v. Cole, 5 McLean,
513, 25 Fed. Cas., 494.

* U. S. v. Stamatapoulos, 164 Fed., 524.

' Federal Penal Code, sec. 37.

'Ante, pp. 522-524.

" Federal Penal Code, sec. 37.

'"Clune V. U. S., 159 U. S., 590, 40 L. ed., 269, where the court,
per Brewer, J., said:

"The language of the sections is plain and not open to doubt. A
conspiracy to commit an offense is denounced as itself a separate
offense, and the punishment therefor fixed by the statute, and we
know of no lack of power in Congress to thus deal with a conspiracy.
Whatever may be thought of the wisdom or propriety of a statute
making a conspiracy to do an act punishable mere severely than the
doing of the act itself, it is a matter to be considered solely by the leg-
islative body;" citing Calan v. Wilson, 127 U. S., 540, 32 L. ed., 223.

904 I EXTRATERRITORIAL CASES.

We are of the opinion that the gravity of the offense
merits a prison sentence but in view of the defendant's
youth and the District Attorney's recommendation of clem-
ency, we shall not make it a long one. The accused is
sentenced to six months of imprisonment to be served in
Bilibid Prison, Manila, territory of the Philippines, and
to pay the costs of this prosecution.

IN THE UNITED STATES COURT FOR CHINA.

VERA Meier and Olga Kaltzoff, Plaintiffs, v. Arkell &
Douglas, Inc., Defendant.

[Cause No. 774; filed June 12, 1919.]

SYLLABUS.
(By the Court.)

1. CONTRACTS: DECLARATIONS by parties to a written instrument prior

to its execution cannot ordinarily be considered to vary its
terms.

2. Id. : Failure to Read a written instrument before signing is or-

dinarily no ground for avoiding its tei'ms, and this case is not
brought within the exceptions.

3. Id. : Evidence of Fraud in the execution of such an instrument

"must be clear, unequivocal and convincing;" no such evidence
found.

4. Id.: Negligence in performing a contract is not shown where the

party complained of acts within its provisions.

M. L. Heen, Esq., for plaintiffs.

Messrs. Fleming, Davies & Bryan, by Mr. Davies, for de-
fendant.

Lobingier, J.:

This is an action for $3,000 damages alleged to have been
caused plaintiffs, who are local milliners, by their execution
of an instrument (Ex. 2) dated January 22, 1919, by which
they placed with defendant, described in the same docu-
ment as ''shipping and commission merchants," an order for

MEIER ET AL. V. ARKELL & DOUGLAS, JUNE 12, 1919. 905

"50 only Ladies' Trimmed Hats (for Summer) — -no two alike. —
From about G. $8 to about G. $12 each f. o. b. factory. To be pur-
chased from a reputable supplier. To be cabled for at buyer's ex-
pense. Ship as soon as possible. Subject to obtaining license.
Indentor undertakes to accept draft immediately upon presentation.
A. & D. not responsible for selection of styles, etc., and in case of late
arrival nor for condition on arrival. Buying commission 5%."

The complaint alleges a prior oral agreement containing
most of the above terms but also providing that the pur-
chase should be made —

"in the City of New York from a certain firm of milliners ad-
vertised in one of the issues of the 'Vogue,' a periodical published
in America, the name of which firm having been pointed out to the
plaintiffs by said J. Ezra but which they are unable with certainty
to recall or ascertain at the pi-esent time."

In support of this averment one of the plaintiffs testifies
that said Ezra, defendant's salesman, showed her a copy of
Vogue containing an advertisement of "Rawak" hats and
also one by Rosenblum & Co., styled "Cupid" hats, which
latter she says Ezra agreed to order. This advertisement
appears to have been rediscovered after the filing of the
complaint and it purports to be part of the "fall advertising
campaign" of Rosenblum & Co., whereas it is agreed by
both parties that the order in question was for summer
hats only.

On the other hand her co-plaintiff", who states that she
was present at the negotiations, testifies that she remembers
nothing of Rosenblum & Co., and heard no mention of
"Cupid" hats tho she says that Ezra stated that he could
purchase from a good firm advertising in Vogue. Ezra
himself testifies that he had never heard of Rosenblum &
Co., nor of "Cupid" hats nor seen the advertisement (Ex. B)
which the fiist plaintiff claims he showed her; but says
that he showed instead Rawak's advertisement with the
statement that he could not order according to it because
another local house had the exclusive agency but would
order from a reputable dealer other than Rawak.

The burden rests upon plaintiffs to establish the material
averments of their complaint by a preponderance of the
evidence and, in the state of the testimony above shown,

906 I EXTRATERRITORIAL CASES.

in which plaintiffs themselves do not agree and in reference
to which their interest is certainly as great as defendant's
agent, we could hardly find that this burden has been met as
regards the averment above quoted. It is entirely possible
that the parties misunderstood each other, for they were
negotiating in a language (English) which is the native
tongue of none of them but in which plaintiffs appear to be
about as proficient as defendant's agent. Of couise, how-
ever, no agreement could arise from such misunderstand-
ings and it seems more than probable that all the partici-
pants understood that their negotiations were merely pre-
liminary to a written contract; for plaintiffs themselves
offer in evidence a number of such instruments (Ex. N)
evidencing prior transactions between the plaintiffs and
defendant and there is no claim of any transaction based
upon oral agreement alone. Indeed this case well illustrates
the wisdom of the parol evidence rule by which all prelim-
inary negotiations are considered as merged in the written
instrument.

"Oral declai'ations of the parties made at or before the time of
the execution of the instrument are not admissible for the purpose of
showing an intention or purpose not therein expressed." *

"In order to let in evidence of a collateral agreement between the
parties, such agreement must be consistent with the terms of the
writing." ^

For here are three different parties, each claiming to
have participated in the negotiations and each having a
different version thereof. Naturally there was no meeting
of minds and the only safe guide is the document later
signed by each party. To allow plaintiffs to repudiate that,
and then to hold defendant responsible for the alleged prior
statements of a mere salesman, w^ould be to impose a rule
under which no prudent concern could afford to operate.

II.

It is claimed, however, that plaintiffs were fraudulently
induced to execute the written instrument because their
attention was not called to the following clauses:

' Cyc, XVII, 669. * Id., 714.

MEIER ET AL. V. ARKELL & DOUGLAS, JUNE 12, 1919. 907

"To be purchased from a reputable supplier; * * A. & D, (de-
fendant) not responsible for selection of styles,"

which, they allege, they "omitted to read * * * be-
cause they were unable to do so being insufficiently qualified
to read or write the English language." The rule of law
in such cases has been stated by a great Federal Judge '
as follows :

"A written contract is the highest evidence of the terms of an
agreement between the parties to it, and it is the duty of every con-
tracting party to learn and know its contents before he signs and
delivers it. He owes this duty to the other party to the contract,
because the latter may, and probably will, pay his money and shape
his action in reliance upon the agreement. He owes it to the public,
which, as a matter of public policy, treats the written contract as
a conclusive answer to the question, what was the agreement? If
one can read his contract, his failure to do so is such gross negligence
that it will estop him from denying it, unless he has been dissuaded
from reading it by some trick or artifice practiced by the opposite
party. If he cannot read it, it is as much his duty to procure some
reliable person to read and explain it to him, before he signs it, as it
would be to read it before he signed it if he were able to do so; and
his failure to obtain a reading and explanation of it is such gi-oss
negligence as will estop him from avoiding it on the ground that he
was ignorant of its contents." *

The plaintiff who signed this instrument stated that
'she did so the day it was handed her by Ezra and that

"I take the pen to sign and says 'is that all right' and he says
'that all right.'"

Ezra's attention was not called to this particular state-
ment upon either his direct or cross-examination. But he

' Sanborn, C. J., in Chicago etc. R. Co. v. Belliwith, 83 Fed., 437.

* England. Lewis v. R. Co., 5 H. & N., 867.
. Federal. Upton v. Tribilcock, 91 U. S. 45, 23 L. ed., 203; Muller
V. Kelly, 116 Fed., 545; Vickers v. R. Co., 71 Fed., 139.

Indiana. Stewart v. R. Co., 141 Ind., 55, 40 N. E. 6.

Massachusetts. Rice v. Mfg. Co., 2 Cush,, 80.

Nevada. Gage v. Phillips, 21 Nev., 150, 26 Pac, 60.

Netv .Jersey. Fivey v. R. Co., 67 N. J. L., 627, 52 Atl., 472.

Pennsylvania. Burrill v. Saving Bank, 92 Pa. St., 134, 37 Am.
Rep., 669.

And see other cases cited in Corpus Juris, XIII, 372, note 39.

The New York rule appears to be different. Wilcox v. Tel. Co.,
176 N. Y., 115, 68 N. E., 153.

908 I EXTRATERRITORIAL CASES.

is very positive to the effect that while the instrument was
left with plaintiff on January 22, she retained it for three
days before signing. He is corroborated by defendant's
manager who says that the hats were cabled for on January
25 as soon as the instrument was received from plaintiff.
Moreover, Ezra's alleged reply, as quoted by her, contained
no misstatement of the instrument's terms which is ordi-
narily necessary to constitute fraud.^ Indeed, the provision
most complained of (exempting defendant from respon-
sibility "for selection of styles") was substantially similar
to a clause in another contract (Ex. 3) between the parties
about six months earlier and seems to be a reasonable one
under the circumstances.

It is true, as counsel contends, that a fiducial relation
between the parties subjects a transaction to closer scru-
tiny ; but no authority is cited ** to the effect that such rela-
tion exists between the salesman and the customer of a

" Corpus Juris, XIII, 383.

In the following cases relied upon by plaintiff's counsel there was
a positive misstatement:

Beck etc. Co. v. Houppert, 104 Ala., 503, 16 So., 522; Central R.
Co. V. Goodwin, 120 Ga., 83, 47 S. E., 641; Western Mfg-. Co. v. Cotton,
126 Ky., 749, 10 S. W., 758; Gibbs v. Linabury, 22 Mich., 479, 7 Am.
Rep., 675; McGinn v. Tobey, 62 Mich., 252, 28 N. W., 818; Briggs v.
Ewart, 51 Mo., 245, 11 Am. Rep., 445; Griffin v. Lumber Co., 140
N. C, 514, 53 S. E., 307; Mt. Hope Nurseries v. Jackson, 36 Okla.,
273, 128 Pac, 250; Schuylkill County v. Copley, 67 Pa. St., 386, 5
Am. Rep., 441; Stacy v. Ross, 27 Tex., 3, 84 Am. Dec, 604; Bjorklund
V. Electric Co., 35 Wash., 439y 77 Pac, 727.

In the following cases, also cited by plaintiff's counsel, the decision
was adverse to his contention : Fari'ar v. Churchill, 135 U. S., 609,
34 L. ed., 246, 10 S. Ct., 771; Mills v. Lee, 6 T. B. Mon. (Ky.), 91, 17
Am. Dec, 118; Gage v. Phillips, 21 Nev., 150, 26 Pac, 60; Fivey v. R.
Co., 67 N. J. L., 627, 52 Atl., 472.

No authority has been cited where a mere general statement, as
that the instrument was "all right," was held to relieve a party from
the obligation to read it.

" The cases cited by counsel on this point are De Ruitter v. De
Ruitter, 28 Ind. App., 9, 62 N. E., 100, where the parties were spouses,
and Smith v. Smith, 134 N. Y., 62, 31 N. E., 258, where they were
aunt and nephew. In McGinn v. Tobey, 62 Mich., 252, 28 N. W., 218,
the relation was one of attorney and client.

MEIER ET AL. V. ARKELL & DOUGLAS, JUNE 12, 1919. 909

commission merchant, and they appear to have dealt in
this as in many previous instances.

It is also true that the law grants a special indulgence
to illiterates ; ' but we cannot regard the plaintiff who signed
the contract as in that class. In reply to the question,
Can you read English ? she testified :

"Very few words; I can read but I do not understand; small words
I understand, big words I do not understand."

Whatever else may be inferred from this it does not
show the mental state which illiteracy connotes. This
plaintiff is evidently an alert, intelligent business woman
and while she has not mastered English she testified in
that language and a comparison of her testimony with
that of defendant's agent shows no advantage to the latter.
Moreover it is not disputed that plaintiffs had at their
disposal the services of their witness Mackenzie who pre-
pared bills, conducted their correspondence and attended to
advertising for them and who seems to have taken a special
interest in this transaction. That they did not consult him
about the contract when they might have done so is cer-
tainly not the fault of defendant.

Evidence of fraud in the execution of a written instru-
ment ''must be clear, unequivocal and convincing" ^ and we
find no such evidence here. Nor is there any suggestion
of a motive for the fraud alleged. As a mere commission
merchant defendant's profit was the same regardless of the
house with which it placed the order and there is nothing
to indicate that it had any reason for preferring one house
over another. On the other hand it was financially in-
terested in satisfying its local customers and thus extending
its trade.

'Selden v. Myers, 20 How. (U. S.) 506, 15 L. ed., 976; Schuylkill
County V. Copley, 67 Pa. St. 386, 5 Am, Rep. 441; Stacy v, Ross, 27
Tex. 3, 84 Am. Dec. 604 and other cases cited in Corpus Juris, XIII,
373 note 42.

' U. S. V. Maxwell Land Grant Co., 121 U. S. 325, 30 L. ed., 949,
7 Sup. Ct. 1015; Ins. Co. v. Nelson, 103 U. S. 544, 26 L. ed., 436;
Chicago etc. R. Co. v. Belliwith, 83 Fed., 437.

910 I EXTRATERRITORIAL CASES.

III.

A second count of the complaint alleges —

"In purchasing the said hats for plaintiffs, defendant corporation
did not use reasonable care, skill and diligence which they were bound
to observe, and by reason of such negligence plaintiffs have been
deprived of the large profits they would otherwise have made,'" etc.

Plaintiff's contention that defendant, as a commission
merchant, was, in a sense, their agent and, as such, liable
for negiig'ence ■' may be conceded. But as the agency was
limited by the terms of a written contract we doubt if
negligence would arise so long as defendant kept within
those terms. We have been cited to no authority and have
found none to the effect that one party, while not electing to
disaffirm a contract, may hold the other liable for acts which
the contract permitted.

Of the material provisions of this contract it is conceded
that plaintiff's actually received, and still retain, "50 ladies'
trimmed hats." One of the plaintiffs indeed says that
few of them are "summer hats" but she is the same witness
who claims to have ordered according to an advertisement
of fall hats. Plaintiffs' expert witness, Mrs. Paolinyi, tes-
tifies that "all are summer hats."

As showing non-compliance with the requirement that
there were to be "no two alike" plaintiffs produce three
of the fifty which appear to be similar in shape; but each
differs fiom the others in color and, to some extent, in
trimming, so that it could hardly be said that they are
"alike." The requirement was not that they should be
unlike in all respects.

The price is specified at "from about G. $8 to about G. $12
each f. o. b. factory" which means, of course, the price in
the United States. There is no testimony that better hats
could have been bought there for the prices named while an
apparently disinterested and expert witness estimates them
as worth from $9 to $12. It is true that one of plaintiffs'
witnesses places them very much lower and that two hats
are produced of alleged better quality which are stated to

Citing Am. & Eng. Ency. of Law (2nd ed.), I, 1063.

MEIER ET AL. V. ARKELL & DOUGLAS, JUNE 12, 1919. 911

have been purchased here for about half the prices named,
but the question remains, What was the price in America?
And in view of the notoriously high prices prevailing there
at the present time we certainly would not be justified in
presuming, without evidence, that the hats in question were
purchased for less than the prices fixed in the contracts.

The burden was upon plaintiffs to show that the house
which supplied the hats (Cochran & Co.) was not "a re-
putable supplier" as the contract requires, and no such
evidence was produced. So far as appears, it was equally
such with Rosenblum & Co. whom one of the plaintiffs, as
we have seen, claims was the house which she understood
the hats were to be ordered from ; nor is there any evidence
that the latter would have supplied better hats at those
prices.

The complaint alleges that the hats were found to be
"practically unsalable ;" but the plaintiff who testifies on
that point also says that she did not try to sell them. She
refers indeed to criticism on the part of some of her cus-
tomers but none of the latter were called as witnesses.
Ezra's admission that he stated, when plaintiffs were com-
plaining, that the hats were "perhaps not good" must be
taken in connection with his further statement that he
knows nothing about hats. Plaintiffs' expert who stated
that she had not seen the hats previous to her appearance
in Court testified, without a detailed examination, that they
were, as the interpreter rendered it, "rotten ;" but on the
other hand defendant's expert already mentioned and who
seems to have had a much wider and longer experience,
and who had examined the hats previously, testifies that
she "thought they were very nice hats and wanted to buy
them." Where the experts differ so radically upon a ques-
tion so remote from judicial experience it would probably
be hazardous for the Court to express an opinion other than
that, while the hats may not be of the best quality, the
averment that they are "practically unsalable" is not es-
tablished.

So of the whole case we are unable to find that the
material averments of the complaint are sustained by a

912 I EXTRATERRITORIAL CASES.

preponderance of the evidence and it is accordingly con-
sidered and adjudged that plaintiffs take nothing thereby
and that defendant recover its costs.

IN THE UNITED STATES COURT FOR CHINA.
hi re GEORGE A. Derby's Will.

[Cause No. 609; filed June 25, 1919.]

SYLLABUS.
(By the Court.)

1. wriLS. Validity of holographic wills in this jurisdiction reaf-

firmed.

2. Id. : The Appointment of an Administrator is not rendered void

by the subsequent discovery of a will ; but the letters of adminis-
tration granted thereunder should be revoked.

3. Id. : Id. : Confirmation of the acts, otherwise regular, performed

by the administrator under such letters, is proper and advisable.

C. P. HolcoTTib, Esq., amicus curiae, for the petitioners.
No appearance contra.

LOBINGIER, J.:

A petition is here presented for the probate of an instru-
ment purpoiting to be the last will and testament "drawn
up entirely in my own handwriting" of the late George A.
Derby, deceased. Shortly after his death a special adminis-
trator was appointed and upon his decease a regular ad-
ministrator, no will having been found. The instrument
now presented, and duly accounted for, is amply shown
to have been written, as it purports to be, by the decedent
himself and mailed only a few days before his death to the
one subsequently named special administrator. Testa-
mentary capacity at the time on decedent's part is also
established. There are no witnesses to the instrument but
under the previous decisions of this Court ^ an holographic
will is valid tho unattested and tho it names no executor.
There is consequently no reason why this instrument should
not be admitted to probate.

-In re Allen's Will, ayite, p. 92. In re Lucy Lucker's Will, ante,
p. 626; In re John Kavanaugh's Will, ante, p. 842; In re Amy Bell's
Will, ante, p. 893; In re Alberta C. K. Fitch's Will, ante, p. 869.

IN RE DERBY'S WILL, JUNE 2.5, 1919. 913

It remains to consider, however, the effect of such ad-
mission upon the appointment and acts of the previous
administrators. There appear to be some old English de-
cisions - to the effect that the appointment of an adminis-
trator, when there was in fact a will, was void. Under the
almost if not quite universal American doctrine, however,
such an appointment is at most only voidable."

Moreover, while the letters of administration granted
under such circumstances are usually revoked the acts there-
under, otherwise regular, of the administrator are at the
same time upheld and confirmed ^ without requiring the
steps taken by him in the course of the administration
to be repeated. In the language of one of the decisions
"the executor will have power only over so much of the
estate as remains unadministered." ^

In the case at bar the administration appears to have
reached a stage where at least a partial distribution of the
assets is advisable. The required notice to creditors has
been duly published and all just claims presented have been
paid. It would be wasteful and absurd to require these
processes to be repeated. Besides, the will names no exec-
utor in terms; it merely asks a certain organization, of

'Abraham v. Cunningham, 3 Keb., 725, S. C, 2 Mod., 146; Grays-
brook V. Fox, 1 Plowd., 275.

^ Alabamct. "The tendency of modern decisions, however, upon this
as upon many other questions, is not to pronounce judicial acts void
unless forced thereto by some stern rule of law or of public policy.
The consequences of pronouncing acts voidable rather than void com-
mend themselves by such a healthy conservatism that courts should
hesitate before declaring void what has passed judicial sanction."
Broughton v. Bradley, 34 Ala., 694, 73 Am. Dec, 474. See also Sands
v. Hickey, 135 Ala., 322, 33 So., 827; Floyd v. Clayton, 67 Ala., 266.

Louisiana. Dwight v. Simon, 4 La. Ann., 490. 493.

Maryland. Dalrymple v. Gamble, 66 Md., 298, 7 Atl., 683, 8 Atl.,
468.

Mississippi. Ragland v. Green, 14 Sm. & Mar., 194.

New Hampshire. Kittredge v. Folsom, 8 N. H., 98.

Pennsylvania. Patton's Appeal, 31 Pa. St., 465. See also Cyc,
XVIII, 147, note 60.

'Kittredge v. Folsom, 8 N. H., 498; Ragland v. Green, 14 Sm. &
Mar. (Miss.), 194; Dalrymple v. Gamble, 66 Md., 298, 7 Atl., 683, 8
Atl., 468.

'Patton's Appeal, 31 Pa. St., 465,

14008 O. W. 58

914 I EXTRATERRITORIAL CASES.

which the deceased was a member, to name one who "shall
be acceptable to the United States Court for China" and
the representatives of said organization have named the
present administrator. In such cases it is incumbent on
the court to appoint an administrator cum testamento an-

It is accordingly considered and decreed:

1. That the instrument (Ex. "A"), which the evidence shows to
have been written by the deceased, be admitted to probate as his last
will and testament;

2. That the letters of administration heretofore granted upon the
estate of said decedent be and the same are hereby revoked, but that
all acts performed thereunder by the administrator which would
otherwise have been regular be and the same are hereby confirmed;

3. That letters of administration cum testamento annexo issue to
the same party who was administrator upon his taking the oath and
executing a bond as required by law;

4. That all further claims against the said estate be and the same
are hereby barred;

5. That the administrator cii7n testamento annexo proceed to dis-
tribute as far as practicable the assets of said estate in accordance
with the terms of said will, taking and filing with the Clerk of this
Court proper re eipts from the beneficiaries if of lawful age and
otherwise from their guardians.

IN THE UNITED STATES COURT FOR CHINA.
United States v. William Dommer.

[Cause No. 796; filed July 2, 1919.]

SYLLABUS.
(By the Court.)

1. COURTS. Jurisdiction. This Court has jurisdiction over offences

committed on American ships on the high seas.
1. ASSAULT. Justification. By the weight of authority, the use of

insulting or opprobrious words will not justify an assault.
3. Id. : Id. : Mitigation. But such language must be taken into

account in fixing the penalty especially when used by a member

of a ship's crew to an officer thereof.

Chauncey P. Holcomb, Esq., U. S. Dist. Atty., for the
prosecution.

Earl B. Rose, Esq., for the defence.

«Cyc., XVIII, 98.

UNITED STATES V. DOMMER, JULY 2, 1919. 915

LOBINGIER, J.:

The information in this cause charges that the accused

"at the time being chief engineer of the American merchant steam-
ship 'Homestead,' on the twenty-fourth day of June, A. D. 1919,
while the said steamship 'Homestead' was on the high seas, and
within the Admiralty jurisdiction of this Court, did then and
there wilfully, unlawfully and intentionally assault and beat one,
Isadore Darevski, by striking him the said Isadore Darevski on the
head and body with his fists and by kicking him in the abdomen,
the said Isadore Darevski at the time being a member of the crew
of the said steamship 'Homestead'; and thereby the said" accused
"was and is guilty of the crime of assault,"

This Court has jurisdiction over offences committed on
an American ship "on the high seas" ^ and the principal
question is the extent of the provocation. For it is ad-
mitted that there was an assault but the testimony, even of
the prosecution, goes to show that the complaining witness
applied some very opprobrious and even indecent epithets
to the accused immediately before the assault took place and
even threatened to kill the latter. It is true that the com-
plaining witness testifies that he does not remember having
used this language but other witnesses called in his behalf
as well as those of the defence are explicit and positive to
the effect that he did. There had been trouble previously
between the two and the feeling was evidently strong.

But while there is some support - for counsel's contention
that the use of such language constitutes justification for

^ In re Ross, ante, p. 40; U. S. v. Kilgore, ante, p. 395.

In the second criminal proceeding (U. S. v. Nelson) instituted
herein the court per Wilfley, J., on January 11, 1907, had imposed
a sentence of three years imprisonment upon the defendant, "a
regularly enrolled member of the crew of the American registered
steamship Dakota belonging to the Great Northern Steamship Com-
pany, for having committed the crime of assault with a dangerous
weapon on board the said steamship at the mouth of the Yangtse
River in the Empire of China and within the jurisdiction of this
Court, on the twenty-fifth day of December, 1906, upon the person
of one Otto Bratrud, a quartermaster on board the said steamship."

■" Rogers v. State, 117 Ala., 192, 23 So., 82, where it was held that
an instruction should have been given that "such language may be
taken in mitigation or justification of the offence."

9]^g I EXTRATERRITORIAL CASES.

assault the weight of authority is that it merely mitigates
the punishment.-^

The statute ' under which this prosecution is brought
provides no minimum penalty but does provide in such cases
a maximum fine of $500 or imprisonment for six months
or both. We are disposed to agree with the District At-
torney that the defendant's remedy in this case was an
appeal to the master of the vessel thru whom any punish-
ment should have been imposed. But on the other hand the
discipline of the ship cannot be ignored and the use of
such offensive language by a member of the crew to an
officer of the ship in the hearing of passengers and other
officers afforded strong provocation even tho, as we have
seen, it did not excuse the assault.

We are of the opinion upon a review of the evidence that
the ends of justice will be met by the imposition of a nominal
fine. The accused is accordingly sentenced to pay a fine
of ten dollars United States currency and the costs of this
prosecution.

IN THE UNITED STATES COURT FOR CHINA.

Roberts, Plaintiff, v. Roberts, Defendant.

[Cause No. 775; filed July 2, 1919.]

SYLLABUS.
(By the Court.)

DIVORCE: GROUNDS. As the China Court Regulations contain no
grounds for divorce those prescribed by the Act of Congress
of March 3, 1901, the latest legislative expression on the subject,
are in force in this jurisdiction.

2. Id. : Effect. But said court regulations do prescribe the effect

to be given the decree by declaring that (sec. 51) "divorce
releases both parties."

3. Id. : Drunkenness, being one of the grounds prescribed in said

act, is a cause for absolute divorce.

^Arkansas. State v. Herrington, 21 Ark., 195.

Michigan. People v. Ross, 66 Mich., 94, 33 N. W., 30.

Philippines. U. S. v. Malabanan, 9 Phil., 262.

Texas. Timon v. State, 34 Tex. Cr. App., 363, 30 S. W., 808.

Cf . Corpus Juris, V, 756.

* Federal Penal Code, sec. 276.

ROBERTS V. ROBERTS, JULY 2, 1919. 917

4. Id. : Evidence reviewed and found sufficient to require such a
decree.

Messrs. Rodger & Haskell, by Mr. Rodger, for the plain-
tiff.

Messrs. Fleming, Davies & Bryan, by Mr. Davies, for the

defendant.

LOBINGIER, J.:

The plaintiff in her amended complaint prays for a decree
of absolute divorce alleging habitual drunkenness on the
pait of defendant and the use by him toward her of highly
offensive epithets and other ill treatment. The answer
denies these charges but the defendant produced no evidence
and voluntarily absented himself from the trial tho rep-
resented by counsel.

It appears that the parties lived together about one year
after their marriage and plaintiff's testimony is that the
defendant became intoxicated almost immediately and con-
tinued to become so nearlj^ every week until she was forced
to leave him. This testimony is corroborated by the land-
lady of the house where the parties lived and there is no
contrary evidence. The showing seems quite as strong as,
if not stronger than, in other cases ^ where decrees were
granted on that ground.

II.

As providing the grounds for divorce in this jurisdiction
we applied in the case - where the question was first pre-
sented to us, the latest legislative expression, to wit, the
Act of Congress relating primarily to the District of Co-
lumbia.^ That provision specifies "drunkenness" (not ne-
cessarily habitual) as one of its grounds. An earlier act *
mentions "habitual gross drunkenness." We see no reason
for changing the conclusion which required the application
of the later act in determining the grounds for divorce ; but

'McGill V. McGill, 19 Fla., 341; Blaney v. Blaney, 126 Mass., 205;
Delesdernier v. Delesdernier, 45 La. Ann., 1364, 14 So., 191.
^ Cavanagh v. Worden, ante, p. 371.
' 31 U. S. Stats, at Large, Sess. II, Ch. 854, sec. 966.
'31 U. S. Stats, at Large, Sess. I, Ch. 786, Tit. II, sec. 467.

918 I EXTRATERRITORIAL CASES.

in doing so we recognized that the ejfect of such grounds
would not necessarily be determined by the statute in
question. For in the case '' already cited it was observed :

"In the Consular Court Regulations already mentioned and pro-
mulgated by the American Minister under the express authority
of Congress it is provided that "Divorce releases both parties, and
they shall not be remarried to each other." Whether this clause
would be sufficient, in a proper case, to authorize this Court to
grant an absolute divorce for either of the grounds here alleged is
a question which we prefer to leave open until such case arises."

Such a case is now before us and calls for an adjudication
of the effect of these court regulations as to the point now
in question. It is well settled that the Act creating this
Court and continuing "the existing procedure" '^ constitutes
"an affirmative recognition and confirmation of such of
these regulations at least as relate to procedure" which are
thus "clearly and unquestionably made binding and obli-
gatory on this Court by direct specific enactment." " Ac-
cordingly it has been held - that these regulations prevail
even over Acts of Congress, prior or subsequent, which might
otherwise be applicable. While, therefore, one clause of
the Act of Congress which provides the grounds of
"drunkenness, cruelty or desertion" limits their effect tOj
"legal separation," '' such limitation must be construed inj
the light of the general provision in the Court Regulations
that "divorce releases both parties." ^° That provision can]
have no other meaning than that the divorce which the
regulations contemplate is an absolute divorce a vinculo]
matrimonii. In other words while the regulations do not
provide the grounds they prescribe the effect and that effect]
must be given, until such regulations are modified in thej
proper mode, to any grounds which are extended here by the!
supplementary legislation of Congress. We are of the]

° Cavanagh v. Worden, ante, p. 371.

'Act of Congress of June 30, 1906, 34 U. S. Stats, at Large,j
Sess. I, Ch. 3934, sec. 5.

' Thayer, J., in U. S. v. Engelbracht, ante, p. 169.

* Id. ; Everett v. Swayne & Hoyt, ante, p. 867. Ezra v. MerrimanJ
ante, p. 890.

" 31 U. S. Stats, at Large, Sess. II, Ch. 854, sec. 966.

^' China Court Regulations, sec. 51.

DAVIS V. TSU EU SUNG, JULY 18, 1919. " 919

opinion, therefore, that the plaintiff has established at least
one ground, if not more, which entitles her to an absolute
divorce.

It is accordingly considered and decreed :

1. That the bonds of matrimony heretofore existing between the
plaintiff and the defendant be and they hereby are dissolved and
that plaintiff be granted a decree of divorce a vinculo matrimonii;

2. That plaintiff be authorized to resume her maiden name of
Emma Turen;

3. That defendant pay the costs of this proceeding;

4. That neither party be permitted to remarry for a period of at
least six months.

IN THE UNITED STATES COURT FOR CHINA.

John Davis, Plaintiff, v. Tsu Eu Sung, carrying on
business as the HoA SuN Iron Works, Defendant.

[Cause No. 790; filed July 18, 1919.]
SYLLABUS.

(By the Court.)

1. CONTRACTS: INTERPRETATION. "A guarantee" in a contract for

the construction of tobacco cutters "that the said machines
are in good working condition" must be construed as limited to
the time of delivery.

2. Id. : Id. A further provision that "this agreement * * * shall

terminate" upon delivery and payment relieves the contractor
from liability for subsequent occurrences.

3. Id. : Evidence examined and found insufficient to show that "at

the time of such delivery the said machines were not in work-
ing order and could not be used."

4. Id. : Damages. Loss of profits constitutes a proper item of damage

for a breach of contract only so far as it was reasonably
within the contemplation of the parties when the contract
was made.

5. Id. : Id. : Profits from collateral enterprises or subcontracts are

not usually allowable.

Messrs. White-Cooper, Master & Harris, by Mr. Harris,
for the plaintiff.

Messrs. Fleming, Davies & Bryan, by Mr. Davies, for the
defendant.

920 ' I EXTRATERRITORIAL CASES.

LOBINGIER, J.:

This is an action for damages in the sum of Tls. 2,500
for alleged breach of a written contract under which de-
fendant constructed for plaintiff two tobacco cutting ma-
chines with a "guarantee * * * that the said machines
are in good working condition." It is undisputed that the
machines were delivered and paid for by the time fixed
but the petition alleges that "at the time of such delivery
the said machines were not in working order and could
not be used by plaintiff." This averment is expressly
denied by the answer and is one which it is essential for
plaintiff to establish by a preponderance of the evidence
for it alone saved the petition from being demurrable.

Besides himself, who has had no experience with ma-
chinery, plaintiff called two witnesses — his Chinese work-
man and the draftsman, formerly a machinist, who repaired
the machines. The latter testifies that there were certain
original defects but admits that he did not know the condi-
tion of the machines prior to the time he was called which
was six weeks or more after delivery. However, he was
able to repair all defects for Tls. 78, so that the machines
have worked satisfactorily ever since.

Plaintiff's Chinese workman stated that he knew nothing
about machinery, except that he does know when a ma-
chine cuts properly, that he noticed trouble at the test;
that he tried to adjust the knife and that a foreigner who
worked with him (but was not called as a witness) tried
many times but that the trouble was not the same for both
machines and that they did cut some tobacco.

On the other hand defendant, who is a machinist, trained
in America, where he was born, testifies that he was present
at the installation of the machines ; that they worked prop-
erly at first and cut all the tobacco on hand; that several
days later plaintiff telephoned him that they were not work-
ing properly ; that defendant found that plaintiff's workmen
did not know how to adjust the machines; and that the
trouble was one of defective adjustment and tightening

DAVIS V. TSU EU SUNG, JULY 18, 1919. 921

of the screws. In this connection it should be noted that
the repairer also laid stress on the lack of adjustment which,
of course, is not an inherent defect. Two other Chinese
witnesses were called by defendant, and both testify that
they were present at the beginning and that the machines
worked properly and did cut tobacco. The one not in
plaintiff's employ, says that they "worked very well" and
the other states that later the screws were too tight but
that when he adjusted them the machines worked properly.
Upon this testimony we could not find that plaintiff has
met the burden of showing that the "machines were not in
working order and could not be used" at the time of delivery.
For the "guarantee" of the contract that "the said machines
are in good working condition" cannot be construed as
operating from any later date than that. Moreover the
further provision that "this agreement * * =>= shall
terminate" upon delivery and payment, while it may not
mean all that defendant contends for, clearly relieves him.
from liability for occurrences after such delivery. Defend-
ant was certainly not bound to keep the machines in repair
nor to provide skilled workmen to operate them. Indeed
there is authority ^ for the proposition that acceptance in
such a case after opportunity to inspect waives all patent
defects. It is true that plaintiff, under an independent
contract, was having a shaft constructed without which the
machines could not be tested but if he chose to accept
delivery before such test could be made it was not defend-
ant's fault.

^ Iowa. Frey-Sheckler Co. v. Iowa Brick Co., 104 la., 494, 73 N.
W., 1051.

Neiv York. Waeber v. Talbot, 167 N. Y., 48, 60 N. E., 288.

Oregon. Harrisburg Lumber Co. v. Washburn, 29 Or., 150, 44
Pac, 390; Vanderhoof v. Shell, 42 Or., 578, 72 Pac, 126.

Texas. Wunsch v. Boldt, 15 S. W., 193.

Wisconsin. J. Thompson Mfg. Co. v. Gunderson, 106 Wis., 449,
82 N. W., 299; Ashland etc. Co. v. Shores, 105 Wis., 122, 81 N. W.,
136; Laycock v. Moon, 97 Wis., 59, 72 N. W., 372; Cream City Co. v.
Friedlander, 84 Wis., 53, 54 N. W., 28.

922 I EXTRATERRITORIAL CASES.

II.

But even were it established that at the time of delivery
the machines needed the rather minor repairs which were
subsequently made we would not be justified in allowing
the damages here claimed which consist mainly in profits
which plaintiff claims he could have made during the period
of several weeks between the delivery of the machines and
the making of said repairs. Plaintiff testifies that the
cutting capacity of the machines was about 1,200 pounds per
day and that he made a profit of ten cents per pound, and
he claims a total of Tls. 2,500 or about three times the total
value of both machines.

The rule as to the measure of damages in such a case
was stated as follows by Baron Alderson in a decision ^
which has since become classic :

"Where two parties have made a contract which one of them has
broken, the damages which the other party ought to receive in
respect of such breach of contract should be such as may fairly and
reasonably be considered either arising naturally, i. e., according
to the usual course of things, from such breach of contract itself,
or such as may reasonably be supposed to have been in the con-
templation of both parties, at the time they made the contract,
as the probable result of the breach of it. Now, if the special
circumstances under which the contract was actually made were
communicated by the plaintiifs to the defendants, and thus known
to both parties, the damages resulting from the breach of such a
contract, which they would reasonably contemplate, would be the
amount of injury which would ordinarily follow from a breach of
contract under these special circumstances so known and com-
municated. But, on the other hand, if these special circumstances
were wholly unknown to the party breaking the contract, he, at
the most, could only be supposed to have had in his contemplation
the amount of injury which would arise generally, and in the great
multitude of cases not affected by any special circumstances, from
such a breach of contract. For, had the special circumstances been
known, the parties might have specially provided for the breach

' Hadley v. Baxendale, 2 C. L. R., 517, 9 Exch., 341, 18 Jur., 358,
23 L. J. Exch., 179, 2 Wkly. Rep., 302, 26 Eng. L. & Eq., 398, 5 Eng.
Ruling Cases, 504.

DAVIS V. TSU EU SUNG, JULY 18, 1919. 923

of contract by special terms as to the damages in that case; and
of this advantage it would be very unjust to deprive them."

This doctrine has generally been adopted in the United
States ^ and is the established rule of this Court/ It is
also substantially the same as that of the Civil Law ^ from
which indeed it appears to have been derived.'^

There is nothing in the contract itself nor in any evidence
before us to indicate that any "special circumstances" were
disclosed to defendant as regards the intended use of the ma-
chines which he undertook to construct nor that the exist-
ence of what was at most a minor defect would impose
upon him a loss of three times the amount which he was
to receive therefor. On the contrary defendant testifies
that even when he went to install the machines he found
very little tobacco at plaintiff's place of business and the
latter admits that he purchased none until after the ma-
chines were delivered. His claim is that tobacco was always
purchasable and that he had opportunities (of which, how-
ever, no details are given) to fill profitable orders after
the machines could be started. But the rule as to such a
claim is thus stated in a work of authority :

"The gains or profits of collateral enterprises or subcontracts
are, as a rule, too speculative and contingent to afford an element
of recovery in the case of a breach of the primary contract. Fur-
ther, they are ordinarily not the natural and probable consequence of
such breach." ^

Upon the evidence before us, therefore, we cannot find
that plaintiff has made a case for damages and it is ac-
cordingly considered and adjudged that he take nothing by
his petition and that defendant recover his costs.

"Corpus Juris, XVII, 793 (81).

* King Ping Kee v. American Food Manufacturing Co., ante,
p. 735.

'France. Civ. Code, Art. 1150.

Germany. Civ. Code, Art. 252.

Japan. Civ. Code, Art. 416.

Louisiana. Rev. Civ. Code, Art. 1934 (1).

Spain. Civ. Code, Arts. 1105, 1107.

'Bowas V. Pioneer Tow Line, 2 Sawy. (U. S.), 21, 30, 3 Fed. Cas.,
1713.

'Corpus Juris, XVII, 793, 794.

924 I EXTRATERRITORIAL CASES.

IN THE UNITED STATES COURT FOR CHINA.
Harry Ross, Plaintiff, v. Kitty Ross, Defendant.

[Cause No. 843; filed December 24, 1919.]

SYLLABUS.
(By the Court.)

1. MARRIAGE: ANNULMENT: JURISDICTION of this court to annul a

marriage reaffirmed.

2. Id. : Id. Such jurisdiction is not affected by defendant's alienage.

3. Id. : Grounds. One of the foremost grounds of annulment is the

existence of a prior valid marriage.

4. Id. : Residence. The statutory two years' residence, required of

plaintiff in an action for such relief, found sufficiently estab-
lished.

Paul Myron Linebarger, Esq., for plaintiff.
Messrs. Fleming, Davies & Bryan, by Mr. Bryan, for de-
fendant.

LOBINGIER, J.:

This is a proceeding to annul a marriage celebrated in
Manila, before a Justice of the Peace, on January 12 of this
year. As a ground for such relief plaintiff alleges (par. 4) :

"That at the time of said marriage the said defendant had a
former husband living, and that said defendant's marriage with
said former husband was then, to wit, at the time of said plaintiff's
said marriage to the said defendant, in force and undissolved by
decree of divorce or otherwise."

The defendant filed no answer but appeared at the trial
with her attorney who cross-examined plaintiff's witnesses.
Defendant was also called to testify by plaintiff.

The jurisdiction of this court to annul a marriage was
fully considered and upheld in a former decision ^ and one
of the foremost grounds for exercising it is the existence
of a prior marriage. -

"If either of the parties to a marriage had a lawful spouse living
and un divorced at the time, the second marriage is absolutely void
and may be so declared by decree of court in proper proceedings." *

' Cavanagh v. Worden, ante, p. 317.

= Act of Congress of March 3, 1901, Sess. II, 31 U. S. Stats, at
Large, Ch. 854, sec. 966 (1).

' Cyc, XXVI, 904, citing numerous authorities.

ROSS V. ROSS, DEC. 24, 1919. 925

In this case defendant testifies that she is of the Jewish
faith and race ; that in 1904 she was married in a synagogue
at Odessa, according to Jewish custom and in the presence
of many, to one Hein Gurfinkel but that no document evi-
dencing said marriage was given her. She further testifies
that she lived with her husband only two or three years
and has not heard from him since 1914. The seven years
necessary to raise the presumption of her husband's death *
had not, therefore, elapsed when defendant went thru the
form of a second marriage in Manila. Nor would the
latter be valid if such period had elapsed even now. For

"if the former marriage was fully in force at the time of the
second mar'-iage, it is not necessary that it should continue in force
to the commencement of the action of nullity." °

Defendant seems not to have disclosed the fact of her
previous marriage, apparently assuming that her husband's
disappearance rendered it unnecessary. Her ignorance of
American law on that point would not excuse her; but the
negligence of the Manila magistrate in failing to inquire
carefully into the marital status of the parties appears
even less excusable; for defendant states that she was not
asked to sign anything. The case affords a melancholy
example of the consequences of loose administration of an
important public function and of the necessity of some
system like the publication of banns.

The most recent legislation ^ here applicable to the subject
provides :

"In an action for the dissolution of the marriage contract the
plaintiff therein must be an inhabitant of the district at the com-
mencement of the action and for two years prior thereto, which
residence shall be sufficient to give the court jurisdiction without
regard to the place where the marriage was solemnized or the cause
cf action arose."

Plaintiff testifies that he was born in Detroit, Michigan,
came as a volunteer to the Philippines and in 1900 to

*Wigmore, Ev., sec. 2531, p. 3579.

' Cyc, XXVI, 904. Cf. 31 U. S. Stats, at Large, Sess. II, Ch. 854,
sec. 966 (1).

"Act of Congress of March 2, 1903, Sess. II, 32 U. S. Stats.
at Large, Ch. 978, sec. 2, p. 944.

926 I EXTRATERRITORIAL CASES.

Shanghai which place, he says, he has since regarded as his
residence and to which he has always returned from tem-
porary sojourns in Manila and elsewhere. He further
states that he has paid taxes in Shanghai and has never
voted in any other place. In the absence of any positive
contrary showing we must regard this as sufficient to bring
the case within the terms of the statute above quoted.

Since the supposed second marriage was invalid it neces-
sarily did not have the effect of changing the nationality of
defendant who remained, as she had been, a Russian subject.
If, therefore, the proceeding were in personam this court
would not have jurisdiction. But the only specific relief
sought is annulment of the marriage, it is merely a proceed >
ing in rem and the court has jurisdiction, regardless of de-
fendant's nationality, to decree such annulment, tho not
to award relief against her as to costs or otherwise."

The supposed marriage of January 12, 1919, between
the parties is accordingly considered and decreed to be
wholly null and void and plaintiff' is declared free from any
obligations arising therefrom but liable for the costs of
this action.

IN THE UNITED STATES COURT FOR CHINA.

The Barkley Company, Inc., Plaintiff, v. William E.
Maloney, Defendant.

[Cause No. 814; filed December 29, 1919.]

SYLLABUS.
(By the Court.)

1. COURT COMMISSIONERS were made a part of the American ju-

dicial machinery in China before the establishment of this
court which inherited the jurisdiction to appoint them.

2. Id.: Powers and Duties. Legislation regarding the duties of

such Commissioners has been supplied by cei'tain special Acts
of Congress.

3. Id. : Id. Such officials have the powers of United States Com-

missioners but are distinct from the latter and are not subject
to their limitations.

' Richards v. Richards, ante, p. 480.

BARKLEY CO. V. MALONEY, DEC. 29, 1919. 927

4. Id. : Status. A Commissioner does not constitute a court; his

function is merely to assist the court appointing him and to
whose orders and directions he is subject.

5. Id. : Reference to a Commissioner of a whole civil cause involv-

ing more than $500 is unusual where the Judge is in the
district.

Paul Myron Linebarger, Esq., for plaintiff.
Richard T. Evans, Esq., for defendant.

LOBINGIER, J.:

This is an action for an accounting in which plaintiff's
counsel presents a motion for a trial before the Commis-
sioner at Shanghai reciting inter alia

"That certain essential and necessary witnesses of the said plain-
tiff are about to leave the jurisdiction of this Commissioner's Court
/■* * *\

"That the jurisdi -tion of the above cause is vested and inures only
in the Court wherein the plaintiff's complaint was filed, and that
hence the above cause is only triable in the Commissioner's juris-
diction as above shown at Shanghai."

This implies a misconception of the nature and duties of
the Commissioner's office which calls for an exposition
thereof. The office of Commissioner was made a part of
the American judicial machinery in China by the very first
enactment ^ providing for the exercise of extraterritoriality.
In the beginning that official had other functions but from
the first his judicial powers were broad and important.-

By the Consular Court Regulations for China, promul-
gated by Minister Burlingame in 1864, it was provided that

"On application of either party and advance of the fees, the
consul shall compel the attendance of any witness within his juris-
diction before himself, referees, or commissioners.'

It will be seen that this necessarily implies the existence
of the office of Commissioner. The consul could hardly be
required, as he was by this provision, to "compel the at-
tendance of any witness * * * before * * *

^Act of Congress of August 11, 1848, 9 U. S. Stats, at Large,
Sess. I, Ch. 150.

'Id., sec. 13, p. 278.
*Sec. 12.

928 I EXTRATERRITORIAL CASES.

commissioners," unless those officials were recognized by
law ; and since no other mode of appointment was provided
it naturally followed that the consul himself could appoint
them. He did refer causes to such officials and a judgment
therein rendered will be enforced by courts in the United
States.*

Moreover the office of Commissioner is analogous to those
of masters, referees and arbitrators ■' and

"The power of a court of justice, with the consent of the parties,
to appoint arbitrators and refer a case pending before it, is incident
to all judicial administration, where the I'ight exists to ascertain
the facts, as well as to pronounce the law. Conventio facit legem." '

The Consuls,^ again, exercised equity jurisdiction as does
this Court now ^ and in equity a cause may be referred
even without the consent of the parties.'* And where "there
is no law providing how their duties shall be performed"
Commissioners "so far as relates to their administrative
action * * * were intended to be subject to the orders
and directions of the court appointing them." ^"^

II.

The Court Regulations above quoted from were confirmed
and given the force of Acts of Congress, subject to amend-

* Newman v. Basch, ante, p. 469.

■^Cyc, XXXIV, 775, 776.

' Swayne, J., in Newcomb v. Wood, 97 U. S., 581, 24 L. ed., 1085.
Cf. Kimberly v. Arms, 129 U. S., 512, 32 L. ed., 764, holding- that
the whole case may be referred and that the findings cannot be
disregarded by the Judge.

'Act of Congress of June 22, 1860, Sess. I, 12 U. S. Stats, at
Large, Ch. 179, sec. 4, p. 73.

'Act of Congress of June 30, 1906, 34 U. S. Stats, at Large, Ch.
3934, sec. 4.

" California. Smith v. Rowe, 4 Cal., 6.

Iowa. Hobart v. Hobart, 45 la., 501 ; State v. Orwig, 25 la., 280.

Maine. State v. Mclntyre, 53 Me., 214.

Nebraska. Hanson v. Hanson, 78 Neb., 584, 111 N. W., 368, and
citations.

South Carolina. McCrady v. Jones, 36 S. C, 136, 15 S. E., 430.

Utah. Nephi Irrigation Co. v. Jenkins, 8 U., 369, 31 Pac, 986.

Wisconsin. Gilbank v. Stephenson, 31 Wis., 592.

'"Brown, J., in U. S. v. Allred, 155 U. S., 591, 39 L. ed., 273.

BARKLEY CO. V. MALONEY, DEC. 29, 1919. 929

ment by the judge of this court, in the legislation creating
it.^^ As was said by our predecessor :

"All the existing regulations had been laid before Congress, as
required by law, many years before this statute was passed, it
must be presumed, under well established doctrine, that Congress
had full knowledge of these regulations/' In fact it appears to
the Court that the provision referred to can not be considered
as anything less than an affirmative recognition and confirmations
of such of these regulations at least as relate to procedure. * * *
Whatever objections may have been theretofore made to these
regulations * * * \i seems clear to the Court that the pres-
ent action of Congress, in respect to such then existing regulations
as relate to procedure of the Consular Courts, operates not only
as a confirmation of such rules but practically as an enactment of
such regulations, exactly the same as if they had been verbally
recited in the act itself." "

Moreover the legislation in question conferred upon this
Court

"jurisdiction in all cases and judicial proceedings whereof jurisdic-
tion may now be exercised by United States consuls," etc."

The jurisdiction which the consuls possessed to appoint
commissioners and to compel the attendance of witnesses
before them, seems clearly, therefore, to have passed to this
court by its Organic Act. But neither that Act, nor the
preceding legislation relative to consular courts, contained
adequate provisions defining the powers of, and procedure
before, the commissioners to be appointed by the courts.
For such provisions, as for many others applied in the
exercise of judicial authority here, we must refer to those
other "laws of the United States" which were from the first
"extended over all citizens of the United States in China." ^^

"Act of Congress of June 30, 1906, 34 U. S. Stats, at Large,
Ch. 3934, sec. 5.

'-Citing Clinton v. Englebrecht, 13 Wallace (U. S.), 446, 20 L.
ed., 659.

" Thayer, J., in U. S. v. Engelbracht, ante, p. 169.

" Act of Congress of June 30, 1906, 34 U. S. Stats, at Large, Ch.
3934, sec. 1.

"Act of Congress of Aug. 11, 1848,-9 U. S. Stats, at Large, Sess.
I, Ch. 150, sec. 4; Act of June 22, 1860, 12 U. S. Stats, at Large,
Ch. 179, sec. 4 (U. S. Rev. Stats., sec. 4086) ; Act of June 30, 1906,
34 U. S. Stats, at Large, Ch. 3934, sec. 4.

14008 O. W. 59

930 I EXTRATERRITORIAL CASES.

On May 17, 1884, the President was authorized to appoint
four commissioners for the District of Alaska with probate
jurisdiction and powers of recorders,^'^ and on June 4, 1897,
four additional commissioners were provided. ^^ By the
statute of March 3, 1899, it was enacted:

"In addition to the commissioners appointed by the President of
the United States in pursuance of Acts of Congress now in force,
or that may be hereafter enacted, the judge of the district court
* * * may appoint commissioners, who shall reside at such places
as he may designate in the order of appointment, and who shall
perform the duties and exercise the powers conferred upon justices
of the peace by this Act." "

The foregoing was supplemented the next year by this
provision :

"The commissioners shall be ex officio justices of the peace, re-
corders, and probate judges, and shall perform all the duties and
exercise all the powers, civil and criminal, imposed or conferred on
the United States Commissioners by the general laws of the United
States and the special laws applicable to the district.

"They shall also have power to grant writs of habeas corpus for
the purpose of inquiring into the cause of restraint of liberty,
which writs shall be made returnable before a district judge, and
like proceedings shall be had thereon as if the same had been granted
by the judge under the general laws of the United States in such
cases. The commissioners shall also have the powers of notaries
public." "

Various other provisions governing the jurisdiction, civil
and criminal, of the Commissioner are embodied in these
Acts -" and the intention is clear to provide an official who
shall assist the court by relieving the Judge in minor causes
or by acting in the latter's absence.

These enactments, it is true, were made primarily for
another jurisdiction ; but it was one whose condition's as

"23 U. S. Stats, at Large, Sess. I, Ch. 53, sec. 5.

'' 30 U. S. Stats, at Large, Sess. I, Ch. II, p. 56.

"Act of Congress of March 3, 1899, 30 U. S. Stats, at Large, Sess.
Ill, Ch. 429, Tit. II, sec. 408.

'" Act of Congress of June 6, 1900, 31 U. S. Stats, at Large, Sess.
I, Ch. 786, Tit. I, sec. 6.

'"Sees. 271, 272 and 410, Tit. II, of the Act of March 3, 1899; sees.
703, 763, Tit. II, of the Act of June 6, 1900.

BARKLEY CO. V. MALONEY, DEC. 29, 1919. 931

regards a sparse and widely scattered American popula-
tion closely resemble this, and it is the settled doctrine that
these "laws of the United States" are applicable here if
"suitable" and "necessary to execute the treaties" tho
originally enacted for a limited area.-' That these provi-
sions regarding the Commissioner are both "suitable" and
"necessary" is apparent on their face ; for the Alaska situa-
tion, to meet which they weie originally intended, is more
than reproduced here, viz., an extensive territorial juris-
diction in only a small part of which the Judge may be
personally present and which requires the assistance of one
or more Commissioners to meet emergencies which arise in
the Judge's absence.

It should be noted, moreover, that these officials, while
exercising the powers (which relate almost entirely to
criminal causes --) of United States Commissioners are very
different functionaries, having an extensive authority in
civil matters, and are not, therefore, subject to the limita-
tions and restrictions -^ of such Commissioners.

III.

By statute, therefore, as well as inherently, this court has
power to appoint Commissioners and refer causes to them.
In exercise thereof as long ago as 1915, a standing Com-
missioner was named to reside at Shanghai and one has
ever since been functioning there. But no "commissioner's
court" was thereby created as appears to be assumed in
the motion before us. Invariably the jurisdiction is, and
always has been, that of the United States Court for China,
its Judge being merely assisted in certain cases by the
Commissioner. And we have been cited to no law, nor do
we know of any, which gives one party to a civil cause the
right to demand a hearing before the Commissioner even
tho the latter might be authorized to conduct one.

■' Biddle v. United States, ante, p. 120; U. S. v. Allen, ante, p. 308;
Cavanagh v. Worden, ayite, p. 320; U. S. ex rel. Raven v. McRae,
ante, p. 655.

'' U. S. V. Allred, 155 U. S., 591, 39 L. ed., 273.

■' See 29 U. S. Stats, at Large, p. 184.

932 I EXTRATERRITORIAL CASES.

In the case at bar plaintiff

"prays judg^nent against said defendant for the sum of one thousand
dollars, United States currency ($1,000 Gold) together with his costs,
outlays and disbursements."

But the Commissioner, even when acting as a justice of
the peace, has jurisdiction

"For the recovery of money or damages only when the amount
claimed does not exceed one thousand dollars." "'*

If, however, the case were clearly one which could prop-
erly be referred to the Commissioner that course would
not ordinarily be taken if it involved more than $500, and
the Judge were in the district at the time.

Defendant resides at Tientsin and in accordance with
this court's practice of trying causes in the district of de-
fendant's residence whenever practicable, the case was
called for trial at the court's recent session in that place
but was continued by reason of plaintiff's absence. Defend-
ant's counsel agreed, however, that the cause might be
heard on depositions.

The motion for a hearing before the Commissioner is
overruled but plaintiff is authorized to proceed to the taking
of depositions, first serving the interrogatories upon defend-
ant's counsel and affording the latter an opportunity to
furnish cross-interrogatories.

Exceptions to Commissioner's Orders. In cause No. 887 {In re
Guardianship of Gerald D. Lucker, a minor) the same Judge en-
tered the following order on December 11, 1919.

This Cause comes on for hearing upon Exceptions, filed under
the Act of Congress of June 6, 1900,' to that part of the Commis-
sioner's Order of December 4, which requires a public sale of the
property therein mentioned. In imposing said requirement the Com-
missioner appears to have applied sees. 278, 839, and 929 of the
same title. But the later Act of March 3, 1901, specifically author-
izes a sale of the ward's property "upon such terms as to cash
and credit as the court may direct" " and provides even for "an

" Act of Congress of June 6, 1900, Sess. I, 31 U. S. Stats, at Large,
Ch. 786, Tit. II, sec. 703.

' 31 U. S. Stats, at Large, Sess. I, Ch. 786, Tit. II, sees. 941-948.
' 31 U. S. Stats, at Large, Sess. II, Ch. 854, sec. 160.

AUGUSTIN V. AUGUSTIN, JAN. 6, 1920. 983

exchange of his said property for other property" ' which could not
be effected at public sale. It is evident, therefore, that the court
is given discretion as to the character of the sale and this is highly
expedient for often a private sale may be negotiated at a better
figure than a public one. From the aflRdavits filed in support of
the exceptions it appears that such is the case here and that an
offer has already been received which is higher than would probably
be realized at public sale, and which, in view of the (to the ward)
very favorable condition of the exchange market it would be highly
disadvantageous to run the risk of losing. In view of the further
fact that the guardian is also the father of the ward and is an
alert business man as well as a member of the bar of this court it
seems reasonable to suppose that his belief is well founded that the
acceptance of said offer is to the best interests of said ward.

So much of the Commissioner's order of December 4, 1919, a«
requires a public sale with notice is therefore eliminated; but in
other respects the said order is confirmed.

It is further ordered that the proceeds of said sale may be de-
posited at interest in any one or more of the foreign banks of
Tientsin.

IN THE UNITED STATES COURT FOR CHINA.

Frank Augustin, Plaintiff, v. Rosario Perez Augustin,

Defendant.

[Cause No. 891; filed January 6, 1920.]

SYLLABUS.
(By the Court.)

1. DIVORCE: GROUNDS: INFIDELITY found sufficiently established by

the evidence.

2. Id. : Desertion is not shown by mere separation as the result of an

agreement.

3. Id.: Non-support. The husband's liability for support ceases with

the wife's infidelity.

Paul Myron Lineharger, Esq., for plaintiff.
Arthur S. Allan, Esq., for defendant.

LOBINGIER, J.:

The parties to this cause were married in 1913 in the
Philippines, of which defendant is a native, plaintiff being

'Id., sec. 156.

934 I EXTRATERRITORIAL CASES.

a colored American. They lived together until about April
of last year when they separated, the husband continuing,
however, to contribute to the support of the wife. He tes-
tifies that he suspected her of infidelity and employed a
detective to watch the house where she lived; that on the
evening of November 29 he was advised that a man had
entered the house and that he proceeded there with several
witnesses, entered the wife's room and found her in bed
with a man. Plaintiff is directly corroborated by two wit-
nesses (one of them, at least, apparently disinterested) and
partially by two others, while defendant's improbable ex-
planation of the man's presence in her room is wholly
insufficient to overcome the showing of these witnesses.
We must find, therefore, plaintiff's charge of adultery suf-
ficiently established and affording ground for a divorce
a vinculo matrimonii.^

Defendant files a cross-complaint asking a divorce upon
the ground of desertion and non-support. The two, as has
been stated, were living apart when the act of infidelity in
question was committed; but plaintiff testifies that they
had separated by agreement and we find no contradiction
thereof by defendant. The rule is that

"An agreement for separation which has not been revoked, and
under which the spouses are living apart, precludes either from
obtaining a divorce for desertion, unless the cause of action there-
for had fully accrued at the time the agreement was entered into."-

As to non-support the answer alleged that from the
separation until November 15, plaintiff "allowed defendant
the sum of $90 per month for the maintenance of herself
and the two children" one of whom was not plaintiff's. His
refusal to continue the allowance after becoming convinced
of her unfaithfulness appears to have been legally justified.

"Ordinarily, if husband and wife are living apart under circum-
stances rendering him liable for her support, then if she commits
adultery, his liability ceases. Even, by the English doctrine, her

'Act of Congress of March 3, 1901, Sess. II, 31 U. S. Stats, at
Large, Ch. 854, sec. 966.
' Cyc, XIV, 636.

IN RE ESTATE OF GEORGE, JAN. 17, 1920. 935

adultery relieves him of maintaining her, tho he also is guilty
of the same offence." "

There is but one child of the marriage — a boy of about
five — of whom plaintiff prays the custody, undertaking" to
place him in a suitable children's home to be reared. Ob-
viously that is more conducive to the boy's welfare than
leaving him with the defendant in view of the testimony
above reviewed.

It is accordingly considered and decreed that the bonds
of matrimony heretofore existing between plaintiff and
defendant be, and the same are, hereby dissolved; that de-
fendant be prohibited from remarrying at all and plaintiff
for a period of six months; that the latter, so long as he
carries out the undertaking above mentioned, have the cus-
tody of their minor child, John Augustin ; but that neither
party recover costs.

IN THE UNITED STATES COURT FOR CHINA.
In re Estate of Frederick Peterson George, Deceased.

[Cause No. 913; filed January 17, 1920.]

SYLLABUS.
(By the Court.)

NUNCUPATIVE WILLS are permissible in this jurisdiction by none
other than soldiers in service and mariners at sea.

Lobingier, J.:

The following instrument is offered for probate in this
proceeding :

"Siangyang, Hupeh, January 6, 1920.

Last words of Frederick Peterson George pertaining to the disposal
of his property.

The undersigned, Odd Eckfelt, was present at the death bed of
Frederick Peterson George who died at 2:15 A. M. on October 25,
1919, in the Bethesda Union Hospital at Siangyang, Hupeh, China.

'Bishop, Marriage & Divorce (6th ed.), 574. Cf. New Work, I,
sec. 1230, citing Cooper v. Lloyd, 6 C. B. N. S., 519; Atkyns v. Pearce,
2 C. B. N. S., 763; Govier v. Hancock, 7 T. R., 603, in effect, affirmed
in Rex. v. Flintan, 1 B. «& Ad., 227; Needham v. Bremmer, Law Rep.
1 C. P., 583.

936 I EXTRATERRITORIAL CASES.

About two hours before the death of the said Frederick Peterson
George, he, being fully conscious and of sound mind, made the
following statement: 'AH my books and other effects are to be sold
and the proceeds given to the mission.'

No further or subsequent statement was made by the said Fred-
erick Peterson George regarding his property.

In addition to the undersigned, Odd Eckfelt, the following per-
sons were present at the time the above mentioned statement was
made by the said Frederick Peterson George: Miss Ellen Ackerson
of Siangyang, Hupeh, China, and Mr. Albert Anderson of Fancheng,
Hupeh, China.

(Sgd.) Odd Eckfelt, M. D.

Physician in charge.
Ellen Ackerson."

Unwritten or nuncupative wills, like most features of
our testamentary law, are of Roman origin, and were re-
stricted to soldiers in service ^ — an instance of Rome's par-
tiality for the military arm. Modern statutes - have added
another class — "mariners at sea" — and such is the law of
this jurisdiction.^

The privilege is confined to these two classes; the wills
of all others must be in writing and either subscribed, or
written, by the testator,^

The deceased was a missionary and did not belong to
either of the two classes above mentioned. Whatever he
might have said orally, therefore, as to the disposition of his
property was wholly ineffective in law. The case affords
but another instance of the unfortunate consequences of
postponing the preparation of a will until it is too late to
make one.

Let the application for probate be denied and the proceed-
ing continue as one for administration only.

' Justinian's Institutes, Lib. II, Tit. XI.

"The only person who, in Roman law, can make a valid will
without any formality whatever is a soldier on active service {tes-
tamentum militis)." Sohm, Roman Law (3d ed.), 548.

= Cyc., XI, 1134, note 60.

'Act of Congress of March 3, 1901, Sess. II, 31 U. S. Stats, at
Large, Ch. 854, sec. 16-34; Act of Congress of June 6, 1900, Sess. I,
31 U. S. Stats, at Large, Ch. 786, Tit. Ill, sec. 147.

'Act of Congress of March 3, 1901, Sess. II, 31 U. S. Stats, at
Large, Ch. 854, sec. 1626; Act of Congress of June 6, 1900, Sess. I,
31 U. S. Stats, at Large, Ch. 786, Tit. Ill, sees. 138, 166.

IN RE SAN JUAN'S WILL, JAN. 28, 1920. 937

IN THE UNITED STATES COURT FOR CHINA.
Ill re Angeles San Juan's Will.

[Cause No. 611; filed January 28, 1920.]

SYLLABUS.

•By the Court.)

NATURAL CHILDREN: SUCCESSION. The estate of a natural child
who dies intestate, and whose mother is likewise dead, passes
to the latter's heirs at law.

LOBINGIER, J.:

The deceased, who was a Filipina, left a will in the Ta-
galog language bequeathing all her property, which is
personalty, to a natural daughter. After the issuance of
letters testamentary the daughter died in infancy and the
question is presented, now for the first time, it is believed,
in this jurisdiction, as to the proper distribution of the
estate, under such circumstances.

The latest legislation applicable to the subject appears
to be the following:

"The illegitimate child or children of any female and the issue of
any such illegitimate child or children shall be capable to take from
their mother, or from each other, or from the descendants of each
other, in like manner as if born in lawful wedlock. When an il-
legitimate child or children shall die leaving no descendants, or broth-
ers or sisters, or the descendants of such brothers or sisters, then
and in that case the mother of such illegitimate child or children, if
living, shall be entitled as next of kin, and if the mother be dead
the next of kin of the mother shall take in like manner as if such
illegitimate child or children had been born in lawful wedlock." ^

In this case therefore, we need only ascertain who are
"next of kin." The deceased left surviving both parents
and one sister ; but the law is that

"If there be a father and no child or descendant, the father shall
have the whole." ^

' Act of March 3, 1901, Sess. II, 31 U. S. Stats, at Large, Ch. 854,
sec. 387. Cf. sec. 958 as amended by Act of June 30, 1902, Sess. I,
32 U. S. Stats, at Large, Pt. I, Ch. 1329, p. 537, applying the same
rule to realty.

= Act of Congress of March 3, 1901, Sess. II, 31 U. S. Stats, at
Large, Ch. 854, sec. 380.

938 I EXTRATERRITORIAL CASES.

The fact that the daughter died while still an infant,
more than a year ago, and that no suggestion has come
from any source that ah administration of her estate is
necessary, seems to justify the distribution, under the
statutes above quoted, of the mother's property directly
to her father, precisely as if the will had never been made.

It appears that notice to creditors was duly published
as required by law but that no claims have been presented
against the estate tho the time therefor has long since
expired.

It is accordingly considered and decreed that all claims
against the above entitled estate be and the same are hereby
barred ; that the Executor proceed to distribute the assets
of said estate to the father of the deceased and that upon
the filing of the latter's receipt therefor with the Clerk
of this Court, the Executor shall stand discharged and the
administration closed.

IN THE UNITED STATES COURT FOR CHINA.

In re Elmer F. Shanstrom's Will.

[Cause No. 930; filed January 30, 1920.]

SYLLABUS.
(By the Court.)

HOLOGRAPHIC WILLS. An instrument containing words written by
the testator himself, sufficient to effect a valid disposition of
his property, is an holographic will tho it also contain printed
matter, not inconsistent therewith, and tho not properly attested.

Lobingier, J.:

The decedent's widow offers for probate an instrument
which, she testifies, bears the signature of decedent and
contains, in his handwriting, the following w^ords :

"I wish all of my effects, etc., to be given to my sister Irene Florence
Shanstrom, address Coolidge, Hamilton Co., Kansas."

These word^ are written on the blank portion of a form
of will containing the usual introductory and subscription

IN RE SHANSTROM'S WILL, JAN. 3 0, 1920. 939

matter ; but the instrument purports to be witnessed by one
person only and could not, therefore, be probated as an
ordinary will.^

We have held,- however, that instruments in the testator's
handwriting, tho not witnessed, are entitled to probate as
holographic wills and the sole question here is whether the
presence in the same instrument of the printed words de-
prives this one of that character. On that point the ap-
proved rule seems to be that if the words written by the
testator suffice in themselves to effect a valid disposition
of his property the instrument is none the less an holo-
graphic will because it contains other words,^ provided they
are not inconsistent with the remainder and provided also
there is no statute, as in California ', requiring otherwise.
The printed words of the instrument before us are not only
consistent with, but supplementary to, the language of the
testator which is quite sufficient to show his intention as
to the disposal of his entire property. Nor is the failure
of the instrument to name an executor a fatal defect.'^

It is accordingly considered and decreed that said in-
strument be admitted to probate as the Last Will and
Testament of Elmer F. Shanstrom, late a citizen of the
United States, who died at Shanghai, China, on January
10, 1920; and that letters of administration cum testa-
mento annexo issue to Neville Craig, Esq., as petitioned by
decedent's widow, upon the former's taking the oath and
executing a bond in the sum of $400, United States Cur-
rency.

'Act of Congress of March 3, 1901, Sess. II, 31 U. S. Stats, at
Large, Ch. 854, sec. 1626; Act of Congress of June 6, 1900, Sess. I,
31 U. S. Stats, at Large, Ch. 786, Tit. Ill, sees. 138, 166.

'In re Allen's Will, afite, p. 92. In re Lucy Lucker's Will, aute,
p. 626. In re Kavanaugh's Will, ayite, p. 842; In re Amy Bell's Will,
ante, p. 893; In re Alberta C. K. Fitch's Will, ante, p. 869; In re
Derby's Will, ante, p. 912.

^ Heirs of McMichael v. Bankston, 24 La. Ann., 451; Baker v.
Brown, 83 Miss., 793, 36 So., 539.

^ Where the Civil Code defines an holographic will as one "entirely
written" by the testator. Estate of Rand, 61 Gal., 468.

"' In re Lucy Lucker's Will, ante, p. 626.

940 I EXTRATERRITORIAL CASES.

IN THE UNITED STATES COURT FOR CHINA.

SiAo King Kee, Plaintiff, v. The American Trading Com-
pany (a Corporation), Defendant.

[Cause No. 675; filed February 24, 1920.]

SYLLABUS.
(By the Court.)

1. EQUITY: MAXIMS. "He who seeks equity must do equity" is one

of the maxims prerequisite to obtaining equitable relief and is
applicable equally to each party demanding the same.

2. Id. : Reformation: Grounds. A written contract which fails, by

reason of mutual mistake, or of an unilateral one induced by
representations of the adverse party, to ■express the real agree-
ment, will be reformed accordingly.

3. Id. : Id. : Negligence on the part of one seeking such relief is not

fatal where the mistake was so induced.

4. Id.: Id.: But Relief May Be Conditioned upon reimbursement of

the adverse party for losses resulting from such negligence,
in estimating which losses not all the rules applicable to or-
dinary damages need be applied.

Messrs. Jernigan, Fessenden <& Rose, for plaintiff.
Messrs. Fleming, Davies & Bryan, for defendant.

Lobingier, J.:

This is a bill in equity for the specific performance of a
written contract of settlement between the parties and for
incidental damages resulting from delay in performance.
The answer and cross-bill admits the execution of the con-
tract but alleges that it fails correctly to express the real
balance agreed upon by the parties by reason of the double
crediting to plaintiff of an item of Tls. 19,350 to which he
was concededly entitled on account of a certain potash
transaction with which

"the said plaintiff, through his agent and attorney, knowingly and
falsely or by virtue of a mutual mistake, represented to Mr. W. A.
Burns, the manager for the defendant in Shanghai that he, the
plaintiff, had not been credited on the said account."

It is further alleged

"That defendant's said manager, believing said representation, then
and there promised and agreed to deduct said sum of Tls. 19,350

SIAO KING KEE V. TRADING CO., FEB. 24, 1920. 941

and did then and there have said sum of Tls. 19,350 deducted from
said account; that thereafter a statement of account showing the
deduction of said Tls. 19,350 from said balance of Tls. 43,762.53
was made up and delivered to the said Siao King Kee or his agents;
and that said redrafted statement of account as made up and so
delivered showed a balance due from the said plaintiff of Tls.
24,402.53; that thereafter between on or about the 6th day of April,
1918, and the 29th day of April, 1918, it was arranged by and
between the plaintiff and the defendant herein that the defendant
should waive the sum of Tls. 4,402.53 of said balance of Tls. 24,402.53
shown to be due on said redrafted account and should accept the
sum of Tls. 20,000 in final settlement thereof."

Defendant prays for a rescission of the contract and for
judgment against plaintiff for the full amount of the orig-
inal claim less an item of Tls. 15,000 which it is admitted
has been paid. The replication contains a general denial of
the averments above quoted from the answer.

It appears that plaintiff was formerly defendant's "en-
gineering compradore" and that at the termination of the
arrangement defendant held him liable as guarantor of a
customer's contracts while plaintiff had certain claims
against defendant for commissions, etc. Under date of
March 9, 1918, a statement (Ex. 1) of an account ag-
gregating Tls. 44,752.53 was furnished plaintiff by defend-
ant and this statement included two credit items for potash
aggregating the sum of Tls. 19,350. According to the
testimony of defendant's agent this statement was brought
to him four weeks later by plaintiff's attorney who sug-
gested a compromise, and said (pp. 3, 4)

'*we must credit Mr. Siao King Kee with the value of this chlorate
of potash, that we had received the money for it on its sale.

Q. Did he claim that you had not credited it?

A. Called attention to the fact that it had not been credited and
I sent for Mr. Manley and I passed this account to him asking him
to credit Mr. Siao King Kee at the value fixed by the Mixed Court."

This testimony as to the statement of plaintiff's attorney
is undisputed and is, moreover, corroborated by defendant's
chief accountant who says that the agent told him in the
attorney's presence that the latter pointed out that no credit
had been given for the potash and that a new statement
should be prepared accordingly. Neither the agent nor the

942 I EXTRATERRITORIAL CASES.

accountant seems to have made any effort to verify the state-
ment of plaintiff's attorney and the account v^as handed to
a Chinese clerk with instructions to deduct the item in
question, which was done, and the contract whose perform-
ance is now sought, was executed on that basis April 29.
On June 13 the agent left Shanghai and in July the ac-
countant states he discovered the mistake in ascertaining the
maturity of a note which plaintiff gave in part payment
of the balance. The mistake was then reported to defend-
ant's counsel who, under date of July 18, wrote a letter
pointing out and explaining it to plaintiff's attorney who
replied on the same date that the matter had been referred
to his client for instructions, and on July 26 wrote stating
that the client "absolutely refuses to consider the matter"
further and asking that the terms of the contract be carried
out. Nothing more having been done this suit was insti-
tuted on August 15, 1918.

The case presented, therefore, is reduced to this : that de-
fendant's agent and accountant, apparently relying upon
the statement of plaintiff's attorney that the item in ques-
tion had not been credited, failed to verify the statement
and later the agent signed a contract agreeing to a settle-
ment on the theory that such credit had not been given when
in fact it had. There is no claim in any quarter that it
was ever defendant's intention to allow plaintiff a double
credit for that item. What the parties really agreed upon
was that a settlement should be made after allowing plaintiff
certain deductions including a single credit of the amount
for potash aggregating Tls. 19,350. Thru the mistake of
crediting this item twice the written contract was made to
express an amount less to that extent than defendant in-
tended.

Plaintiff's counsel contends

"that the account which has been referred to as defendant's Exhibits
1 and 2 was not the only account between the parties which was
compromised and settled by the agreement of April 29, 1918. There
were other accounts and plaintiff had several large claims for com-
mission, etc., which were also included in the compromise agree-
ment. * * * The Court may not presume that the plaintiff would

SIAO KING KEE V. TRADING CO., FEB. 24, 1920. 943

have been willing to settle or sign this contract if the sum to be
paid had been Tls. 19,350 in excess of Tls. 20,000 without having his
claims for commissions considered and adjusted."

References in the evidence to "small commissions" and
"some little dispute over the commissions" are then cited
but none regarding "large claims for commission." That
some minor claims vi^ere included in the settlement seems to
have been true, as noted above, but that these in any way
induced the double crediting of the potash item is directly
contrary to the evidence. Defendant's agent, who is un-
contradicted, says:

"Q. No one ever pointed out to you that the value of the chlorate
of potash had been credited twice in the account?

A. No.

Q. Did you intend to credit it twice?

A. No.

Q. Did you intend to make Siao King Kee an allowance of Tls.
19,350 at the time you had that credited on the account an ad-
ditional allowance of Tls. 10,350 over and above the allowance of
Tls. 17,200 and Tls. 2,150 already given?

A. No; that would make a total allowance of Tls. 38,000 or Tls.
39,000 on an account that totaled only Tls. 44,000."

That defendant never intentionally agreed to such a set-
tlement is, therefore, clear and, contrary to counsel's con-
tention, we must "presume" that plaintiff did not or, as
an alternative, that he was guilty of suggestio falsi or at
least of suppressio veri.

To bring this case within the doctrine of plaintiff's prin-
cipal authority ^ (not a court of last resort) it would have
been necessary that defendant's agent should have made
an independent offer of compromise, uninfluenced by the
representation that the potash item had "not been credited."
For the gist of that opinion appears to be found in the
following sentence:

"When plaintiff, with the facts before him, ended the matter by
saying that he would retire if he were paid $100, it is pretty clear
that he was not relying upon the agreement of dissolution or the

■ Dalpine v. Lume, 145 Mo. App., 549, 122 S. W., 776.

944 I EXTRATERRITORIAL CASES.

correctness of Mr. Nasse's figures, but was making an offer that
can bear no interpretation, but an offer of compromise."

Plaintiff is before the Court seeking equitable relief and
one of the prerequisite maxims - in that forum is "He who
seeks equity must do equity" — a maxim which has peculiar
application to cases of this class.^ Moreover, one of the
recognized branches of equity jurisdiction is the reforma-
tion of contracts which fail to express the intent of the
parties. Such relief is regularly granted where the mistake
is mutual,' and in contracts of settlement no less than
others.' Here we must assume that the mistake was
mutual. For it is conceded that there was a mistake and
as plaintiff's counsel points out in his brief "there was no
evidence introduced by the defendant to prove that the
plaintiff personally made, or procured his agent to make,

^ See the writer's article "Equity," Am. & Eng. Encyc. of Law
(2nd ed.), XI, 157 et seq.

' "There are few cases in which courts of equity will insist on the
maxim that he who seeks equity must do equity, with more rigor
than in those of suits for specific performance." Eastman v. Plumer,
46 N. H. 464, 480. See also Jones v. Dale, 16 Ontario, 717, where a
portion of the verbal agreement which had been omitted from the
written one was inserted over plaintiff's objection in the decree
for specific performance. Cf. Trigg v. Read, 5 Humph. (Tenn.),
529, 42 Am. Dec, 447, 466, cited by plaintiff.

* "The reformation of written contracts for fraud or mistake is an
ordinary head of equity jurisdiction. The rules which govern the
exercise of this power are founded in good sense and are well settled.
Where the agreement, as reduced to writing, omits or contains terms
or stipulations contrary to the common intention of the parties, the
instrument will be corrected so as to make it conform to their real
intent. The parties will be placed as they would have stood if the
mistake had not occurred." Swayne, J., in Hearne v. Insurance Co.,
20 Wall (U. S.), 488, 22 L. ed., 395. See also Brown v. Cranberry
etc. Co., 82 Fed., 361, and numerous other cases cited in Cyc, XXXIV,
917, note 87.

' Colorado. Beck v. School District, 54 Cok)., 546, 131 Pac, 398.

Delaware. McMullen v. Lockwood, 4 Del., Ch. 568.

Maryland. Gill v. Clagett, 4 Md. Ch., 470.

SIAO KING KEE V. TRADING CO., FEB. 24, 1920. 945

any 'knowingly false representations.' " The only alterna-
tive conclusion is that the mistake was mutual.*'

But not all the authorities require mutuality of mistake in
order to justify reformation.^ Especially will that relief
be granted where the mistake, tho unilateral, is induced by
the representations ® or even silence ' of the adverse party.
Such representations may even be innocent;^" tho in such
case there is clearly a mutual mistake. But it suffices if
the representations were believed and acted upon by the one
seeking relief.

Great stress is laid in plaintiff's argument upon the neg-
ligence of defendant's agents in failing to verify from their

' Brown v. Cranberry etc. Co., 82 Fed. 351. See James v. Cutler,
54 Wis. 172, 10 N. W. 147.

' Federal. "I do not understand that in such a case as we have
here it is essential that the mistake be mutual." Cochran, J., in
Armour & Co. v. Renaker, 191 Fed. 58, repeated in 202 Fed. 901, 904.

California. "It is not necessary that a mistake of fact should be
mutual, as appellant claims." Moore v. Copp, 119 Cal. 429, 51 Pac.
630; Capelli v. Dondero, 123 Cal. 324, 55 Pac. 1057.

Connecticut. Essex v. Day, 52 Conn. 483, 1 Atl. 620.

Iowa. Turpin v. Gresham, 106 Iowa 187, 76 N. W. 680, and other
Iowa cases there cited.

"Nebraska. Blair v. Kingman Implement Co., 82 Neb. 344, 117 N.
W. 773.

Neiv Jersey. Chelsea Nat. Bank v. Smith, 74 N. J. Eq. 275, 69
Atl. 533.

North Carolina. Sykes v. Life Ins. Co., 148 N. C. 13, 61 S. E. 610.

Ohio. Harris v. Columbiana Co., 18 Ohio 116, 51 Am. Dec. 448.

Pennsylvania. Renshaw v. Cans, 7 Pa. St. 117; Tyson v. Passmore,
2 Pa. St. 122.

Tennessee. Graham v. Guinn, 43 S. W. 749.

Wisconsin. James v. Cutler, 54 Wis. 172, 10 N. W. 147.

And see other cases cited in Cyc. XXXIV, 922, note 20; Pomeroy,
Equity Jurisprudence (3rd. ed.) IV, sec. 1376.

'Hume V. U. S., 132 U. S. 406, 33 L. ed. 393; Armour & Co. v.
Renaker, 202 Fed. 901.

" Tyson v. Passmore, 2 Pa. St. 122. Cf. Higgins v. Parsons, 65 Cal.
280, 3 Pac. 881.

14008 O. W. 60

946 I EXTRATERRITORIAL CASES.

own books the state of plaintiff's account and authorities "
are cited to the effect that negligence will bar relief on the
ground of mistake. This principle is well recognized where
it operates alone and were there no qualifying circumstances
here it would probably be sufficient to preclude the award
of relief to defendant. But in none of the authorities relied
upon by plaintiff was there a representation by the adverse
party which induced the mistake and therein we think is
the determining point in the case at bar. Had defendant
made the mistake by itself alone it would have no claim to
equitable relief. But when it fell into the mistake by
following a statement of plaintiff's representative its neg-
ligence is excused ^- to the extent at least of entitling it to

"Federal. Grymes v. Sanders, 93 U. S. 55, 23 L. ed. 798; Mont-
gomery V. City Council, 99 Fed. 825, 830.

Alabama. Porter v. Collins, 90 Ala. 510, 8 So. 80; Carlisle v.
Barker, 57 Ala. 267.

California. Lestrade v. Barth, 19 Cal. 660.

Kansas. Brooks v. Hall, 36 Kan. 697, 14 Pac. 236.

Kentucky. Drakesboro etc. Co. v. Brashears, 144 Ky. 39, 137 S.
W. 765.

Michigan. Brevoort v. Partridge, 156 Mich. 359, 120 N. W. 803.

New York. Marvin v. Bennett, 26 Wend. 169.

Virginia. Solenberger v. Strickler's Adm'r., 110 Va., 273, 65 S. E. 566.

''Federal. Hume v. U. S., 132 U. S. 406, 33 L. ed. 393; Standard
Oil Co. V. Van Etten, 107 U. S. 325, 27 L. ed. 319; Brown v. Cranberry
etc. Co., 82 Fed. 351; Baxter v. Card, 59 Fed. 165. All of the above
were subsequent to Slaughter v. Gerson, 13 Wall. 379, 20 L. ed. 627,
cited by plaintiff, and followed in Farnsworth v. Duffner, 142 U. S.
43, L. ed. 981 and cases there cited, in all of which complaint was
made rather of expressions of opinion than of statements of fact.
"A broad principle," as Page puts it, "is laid down" in some of them but
in none was there such a misrepresentation of fact acted upon as here.

California. Moore v. Copp, 119 Cal. 429, 51 Pac. 630; Union
Lumber Co. v. Schouten Co., 25 Cal. App. 142 Pac. 910.

Connecticut. Essex v. Day, 52 Conn. 483, 1 Atl. 620.

Nebraska. North Neb. etc. Ass'n. v. Box, 57 Neb. 302, 77 N. W.
770; Leidigh v. Keever, 2 Neb. (Unoff.) 343, 96 N. W. 106.

Texas. Mine etc. Co. v. Creel, (Tex. Civ. App.) 79 S. W. 67.

Washington. Russell & Co. v. Stevenson, 34 Wash. 166, 75 Pac. 627.

West Virginia. Harman v. Maddy, 57 W. Va., 66, decided after
Ludington v. Renick, 7 W. Va., 273, cited by plaintiff, where there
was no such representation as here.

SIAO KING KEE V. TRADING CO., FEB. 24, 1920. 947

have the contract reformed so as to read as defendant cer-
tainly intended and as plaintiff must be assumed to have
intended.

We also think that the above meets the contention '^ that
want of negligence should have been pleaded. As we have
seen, the answer alleges a mutual mistake and representa-
tions by the adverse party and such averments alone are
a sufficient basis for relief under the law as already stated.

Nor do we think that the fact that defendant's chief
accountant "prepared the basis upon which" the original-
statement (Ex. 1) "was to be made out," and which included
credit for the potash item, deprives defendant of its right
to relief. He states (p. 28) that he "didn't go into the
details at all" and as he seems to have left the actual prep-
aration of statements to a Chinese clerk he was justified in
thinking, on learning thru plaintiff's attorney that the
potash item had "not been credited," that the clerk had
made an error. The absence of such a representation in
the cases ^* cited by plaintiff on this point clearly of itself
distinguishes them from that at bar.

But it does not follow that the defendant is entitled to
the relief specifically prayed for which is, as we have seen,
a rescission of the contract and a judgment for the amount
of its original claim. As we view the evidence the case
calls for nothing more, in defendant's behalf, than a refor-
mation. In effect what defendant claims is that a contract
of settlement was agreed upon by which certain deductions
were made from its claim including a single credit of Tls.
19,350, while the written contract by mistake included a
double credit of that item. Clearly then the relief to which
it is entitled is the remission of one of those credits.

"^Hughey v. Smith, 65 Or. 323, 133 Pac. 68; Lewis v. Lewis, 5 Or.
169. Both of these cases were disposed of on demurrer and there is
nothing to indicate that had the defendant answered instead of de-
murring and had evidence been received as here without objection,
a decree would have been denied.

"Dewey v. Whitney, 93 Fed. 533 (affirming 85 Fed. 325); Pickett
V. Casualty Co., 60 S. Car. 477, 38 S. E. 160, 629.

948 I EXTRATERRITORIAL CASES.

II.

In the interlocutory decree we further said :

"Any damage which plaintiff may have suffered by defendant's delay
in discovering the mistake and invoking relief w^ould appear to be not
only a proper item of deduction as against further payments but also
included within the prayer of the bill. In other words while the
negligence here shown is not sufficient to bar all relief it should not
on the other hand be permitted to cause a loss to the plaintiff who
at any rate was not responsible for defendant's delay of three months
in moving. The maxim 'He who seeks equity must do equity' applies
to defendant ''' equally as to plaintiff as each party seeks equitable
relief and neither is entitled to it at the other's expense. And even
were defendant otherwise entitled to i-escission it would be within the
power of the Court to allow plaintiff to take what defendant intended
to give." '"

As the parties failed to agree on this point further evi-
dence was taken. Plaintiff testifies (2nd trans, p. 2 et seq.)
that on June 26 (which was nearly a month before he was
notified of the mistake) he entered into a contract to sell
for Tls. 14,000 the lot whose title deed defendant had con-
tracted to surrender, and which was mortgaged for Tls.
11,000, giving, as a forfeit for failure to convey, the sum
of Tls. 2,000; that defendant by refusing to deliver the deed
or authorizing the transaction blocked the sale and that
plaintiff lost the forfeit of Tls. 2,000 as well as the profit of
Tls. 3,000.

Defendant's counsel assails the genuineness of the trans-
action contending that the witnesses were unable to describe
sufficiently the place where it was made. But they were
examined over a year (in part a year and a half) later
and it would not be strange if many of the details had
meanwhile been forgotten. Both the contract and the
payment of the forfeit are evidenced by various documents
(Ex. E-N) and plaintiff is corroborated by the alleged pur-
chaser while no one contradicts plaintiff on the essential
points.

The claim is also assailed upon legal grounds — that as
plaintiff was not entitled to unqualified specific performance

"See "Equity," Am. & Eng. Encyc. of Law (2nd ed.) XI, 159.
'" See cases cited in Cyc. XXXIV, 918, note 90 last paragraph.

SIAO KING KEE V. TRADING CO., FEB. 24, 1920. 949

he could not recover damages ; that those claimed were not
in contemplation of the parties; and that the forfeiture
suffered -by plaintiff was in the nature of a penalty and,
therefore, unnecessarily paid.

All of these principles might apply were we considering
plaintiff's rights in the first instance unaffected by defend-
ant's conduct. But the damages which we are seeking to
estimate are merely those resulting from defendant's neg-
ligence in not moving earlier for relief, and at least the
first two of the propositions noticed above are hardly ap-
plicable to such a case. Damages are to be allowed not
merely as an incident to specific performance but to com-
pensate for negligence and the question is not whether
they were contemplated by the parties when they made
their contract but whether they resulted directly from
the negligence. And while it is true that the Chinese
word was often translated "penalty" — tho elsewhere "fine"
(p. 15) and "forfeiture" (p. 16) — it is undisputed that such
a clause is a usual one in Chinese contracts (3d trans., 8)
and it will hardly be claimed that either of the parties to
that transaction understood it in the sense of the American
law of penalties and liquidated damages.

Defendant has already remitted the sum of Tls. 2,500,
and has offered specifically to perform upon the payment of
the amount found due it after deducting said item. Con-
sidering that we are here concerned with the conditions
upon which defendant is granted equitable relief rather than
with an independent claim for damages, we should not be
too technical in applying either the evidence or the law;
and we are of the opinion that we should allow an additional
item of Tls. 2,500 making in all Tls. 5,000 as claimed in
the bill and which would offset the item admitted in the
reply to be due from plaintiff.

The motion to modify the interlocutory decree is accord-
ingly overruled and it is further considered and decreed
that upon paying defendant the sum of Tls. 19,350 plaintiff
shall have specific performance of said reformed contract,
including the return of Title Deed No. 1398, deposited with
it under the terms thereof, together with his costs; but

950 I EXTRATERRITORIAL CASES.

that in case plaintiff fail, for a period of thirty days, to
make such payment (he having expressly submitted him-
self to the jurisdiction of this court and agreed to abide
by its judgment) defendant will be entitled to recover from
him the said sum of Tls. 19,350, upon delivering to him
said Title Deed No. 1398, but to retain said deed until the
payment of said sum.

IN THE UNITED STATES COURT FOR CHINA.
In re Assignment of A. S. Fobes.

[Cause No. 445; filed February 28, 1920.]

SYLLABUS.
(By the Court.)

1. ASSIGNMENTS FOR CREDITORS. The Voluntary Assignment Act of

Congress is "necessary to execute the treaties" with China and
"suitable" to this jurisdiction and its application here is un-
affected by the Bankruptcy Act of 1898.

2. CONTRACTS: PAROL EVIDENCE Rule. A promissory note payable

"without interest" cannot be contradicted by evidence of a con-
temporaneous agreement for interest.

3. Id. : Estoppel. In the absence of any suggestion of fraud the ac-

ceptance of such an instrument is unaffected by the payee's
inability to read the language in which it is written.

LOBINGIER, J.:

This is a proceeding under the Voluntary Assignment Act
of Congress, which, having been reenacted ^ after the pass-
age of the Bankruptcy Act of 1898, is unaffected by the
latter's provisions.- An assignment act seems "neces-

' Act of March 3, 1901, Sess. II, 31 U. S. Stats, at Large, Ch. 854,
sees. 435-444 (embodying Act of Feb. 24, 1893, 27 U. S. Stats, at
Large, Sess. II, Ch. 157, p. 474) as amended by Act of June 30,
1902, 32 U. S. Stats, at Large, sess. I, Ch. 1329, p. 530.

The original act was taken from the Illinois statute and is inter-
preted in accordance with the decisions of that state. Strasburger
V. Dodge, 12 App. Cas. (D. C.) 48.

' As the Assignment Act contains no provision for the debtor's
release it would not, even if merely a state law, be displaced by the
Bankruptcy Act. See Corpus Juris, VII, 24, 25.

IN RE ASSIGNMENT OF FOBES, FEB. 28, 1920. 951

sary" ^ to the proper execution of the treaties and the law
in question is a "suitable" * one, being simpler and less
expensive in its application than the Bankruptcy Act. The
former may, therefore, be applied here at least until its
procedural provisions have been modified and supplemented
by the Judge of this court. It requires no judicial action,
except when it becomes necessary to appoint some one
in place of the assignee, until each of the various claims
has been presented to, and proved before, the auditor and
he has reported thereon.

In this proceeding the auditor, under date of February
17, reported on all but one (which had previously been
reported and paid as preferred) of the claims "of which"
he states "any proof has been produced by document, oral
testimony or affidavit." Allowance of all claims except one
is recommended and as to that no recommendation is made
except that another auditor be appointed. But as the
evidence thereon was taken before him (a counter showing
being afterward made by the debtor) and as the statute
prescribes no other function for the auditor, we see no
reason why this evidence should not now be examined
and the claim determined therefrom, so far as possible,
leaving the assignee to make such further verification as
may be necessary.

The claimant, Siao King Kee (Ev., pp. 2, 5), formerly
the debtor's compradore, and the latter (Ex. B) both ap-
pear to agree that on December 31, 1907, the latter owed
the former Tls. 37,577.70, which was thereupon reduced
by a separate obligation reading as follows:

"For the value received I promise to pay Shou Shin Kee or his
order the sum of Taels Thirty Thousand without interest, on demand
or as soon and as fast as payment can be made as business op-
portunity may permit.

(Sgd.) A. S. FoBES.''

The claimant testifies that, notwithstanding the words
"without interest" in this instrument, the debtor "at the
time promised verbally that he would pay interest." But
such a verbal promise, if made, would have merged in the

' U. S. Rev. Stats., sec. 4086. * Id.

952 I EXTRATERRITORIAL CASES.

written one which, not being ambiguous, or incomplete, is
subject to no contradiction or variation by parol evidence.'

The claimant further states that he does not read English
and that he did not discover until "about one year after-
wards" that the debtor "was not going to pay interest."
But it seems quite improbable that he would have accepted
for so large a sum an obligation written in a language
which he did not understand and have waited a year before
ascertaining its terms. Besides he does not claim that the
contents of the document were ever misstated to him and
in the absence of such misstatement he would have no
ground for avoiding it.''

On the other hand the debtor states under oath :

"He (the claimant) agreed to relieve me of monthly interest on
30,000 taels, in consideration that I would allow him an Extra Tls.
3,000 to be added to the sum of Tls. 34,577 (admittance by Shou;
see his testimony top of page 5) owing to him at Dec. 31, 1907,
for what he claimed was due him for extra interest which he had
had to disburse and the further consideration that / would not hold
him responsible for, or fake any action against him for, losses sus-
tained thru the mismanagement as hereinbefore mentioned and
for xvhich under the terms of the agreement of May 1903' he was
liable. * * *

The fact that balance Tls. 30,000 was to bear no interest is set
forth in the records of Shou's own Cash Book — kept by him in
English which cash book checked up month by month in conformity
with the firm Cash Book."

The debtor is a more disinterested witness than the claim-
ant ; for the former, having assigned all his property to his
creditors, has nothing to expect from the apportionment
thereof. Moreover, while the books do not seem to have
been produced before the auditor the cash book can be veri-
fied by the assignee and, if bound to corroborate the state-
ment last quoted, would seem to be conclusive in requiring
the rejection of the claim for interest on the item of Tls.
30,000.

The debtor further states that the books kept by or
under the claimant disclose (Ex. C) credits on that item
amounting to Tls. 15,551.99 and (Ex. D) payment of the

'17 Cyc. 475; Page, Contracts, sec. 1356.

' See Meier v. Arkell & Douglas, ante, p. 907, note 4.

IN RE ASSIGNMENT OF FOBES, FEB. 28, 1920. 953

unsecured balance of the account amounting to Tls. 7,577.70.
These appear to be corroborated by the claimant's original
statement of indebtedness and are likewise easily verifiable
by the assignee.

There are also claims for Tls. 7,000, ''American Sheet-
ing loan July 25, 1907," for which it is admitted there is
no written evidence, and which it would seem should have
been mentioned in the balance struck on December 31 of
the same year had it then been recognized as valid. Another
claim is for Tls. 12,760, described as commission on flour
mills. Both of these are positively denied by the debtor and
there is no sufficient evidence to justify their allowance.

The debtor, in the balance sheet annexed to the assign-
ment, sets forth a balance due this claimant of Tls. 15,125.36
and if the assignee finds that the books kept by, or under
the supervision of, the claimant corroborate the debtor in
the particulars above quoted he is instructed to consider
said sum as the proper amount of said claim.

The auditor recommends that the following be allowed as
general claims:

Wenatchee Milling Company for G. $4,293.49.
Carter's Ink Company for G. $2,051.73.

It is finally recommended that the claim of the Dentists'
Supply Company for G. $691.20, for goods delivered to the
debtor for sale on consignment, be allowed as a preferred
claim, the title never having passed to the debtor.

The Assignee makes a claim of 5% on the amount col-
lected and received in the course of the assignment proceed-
ings, out of which commission he undertakes to defray the
expenses of auditing and clerical help.

Unless formal objection by some creditor to these claims
and recommendations is filed with the clerk of this Court
on or before April 1, 1920, they will be considered as
allowed and, after deducting the necessary expenses of the
assignment, the assignee is directed to distribute, subject
to the instructions above given, the debtor's funds in his
hands in proportionate payment pro tanto of the claims
which by said date have been presented to and proved
before the auditor.

954 I EXTRATERRITORIAL CASES.

IN THE UNITED STATES COURT FOR CHINA.

Edward Ezra, Plaintiff, v. American Sales Corporation,

Defendant.

[Cause No. 904; filed March 2, 1920.]
SYLLABUS.

(By the Court.)

1. CONTRACTS: FoRM. A contract is none the less "entered into

* * * by correspondence" because of the transmission by one
party to the other of a blank form which the latter fails to
sign.

2. Id.: An Agent who fails to disclose his principal's name in making

a contract becomes liable individually thereon.

3. Id. : Advance Payments to such agent on the purchase price of

goods may be recovered back from him, in case of non-delivery,
with interest at eight per cent.

4. PLEADING: EVIDENCE. Under a general denial, in an action for

such recovery, defendant may show that the contract was dif-
ferent from that alleged.

5. Id. : Admissions. But such a denial leaves admitted an aver-

ment of defendant's corporate capacity.

Messrs. Fleming, Davies & Bryan, by Mr. Bryan, for
plaintiff.

Messrs. Jernigan, Fessenden & Rose, by Mr. Rose, for
defendant.

LOBINGIER, J.:

This is an action to recover back Tls. 1,123.88 being the
purchase price of certain lavatory supplies ordered by plain-
tiff from the defendant but never delivered by reason of
their non-arrival in Shanghai. The material facts are not
seriously disputed tho the answer denies plaintiff's averment
that the parties "entered into a contract by correspondence."
Defendant's theory seems to be that the contract was really
evidenced by a printed form (Ex. 1) which defendant's pres-
ident claims to have furnished plaintiff, stating the items
of goods delivered and containing inter alia this clause:

"It is understood that The American Sales Corporation act as
Manufacturers' Agents; all risk of shortage, damage, strikes, steamer

EZRA V. AMERICAN SALES CORP., MAR. 2, 1920. 955

shutting out, and late arrival or other contingencies the buyer has to
accept. In the event of wrong or faulty execution, The American
Sales Corporation undertake to lay the complaint before the Manu-
facturers, with the view of an adjustment of same, but accept no
responsibility in connection therewith."

Plaintiff's counsel contends that this instrument was
inadmissible under defendant's general denial and cannot
be considered. But the rule is that

"Under a general denial the defending party is always at liberty
to disprove and overthrow the contract asserted against him by
proving that it was materially different from the one so asserted." '

In this instance, however, it is admitted that plaintiff
never signed the instrument and since the general denial
admits defendant's corporate capacity - the proof clearly
supports plaintiff's averment that the contract was "entered
into * * * i^y correspondence" and it contained no
such exemption as that above quoted.

Moreover there is no evidence that defendant ever dis-
closed to plaintiff the name of any one for whom it was
acting as agent. It appears that the order was based upon
an illustrated catalog but plaintiff states, and he is not
contradicted, that the name of the house issuing the catalog
had been cut out. The rule is well settled that where a
party enters into a contract in his own name he is indivi-
dually liable thereon tho in fact he is merely the agent of
another whose name he fails to disclose.^ Even, therefore,
had it been the case here that defendant was the "manu-
facturer's agent" its failure to disclose the name of its prin-
cipal rendered it liable the same as if it had contracted
exclusively in its own name.

The consideration for plaintiff's payment having failed,
and defendant not being entitled to retain the same, plain-

' Wilkerson v. Farnham, 82 Mo. 679. See also Blizzard v. Ap-
plegate, 61 Ind. 368; Marsh v. Dodge, 66 N. Y. 533; Wheeler v.
Billings, 38 N. Y. 263.

'Cyc. XXXI, 207 (note 26).

•Anson, Contracts (Huffcutt's 2nd Am. ed.) sec. 446. Compare
Nash V. Towne, 5 Wall (U. S.) 689, 18 L. ed. 527.

956 I EXTRATERRITORIAL CASES.

tiff is entitled to judgment therefor/ The petition also
asks for $300 as damages, but no proof was offered in behalf
of this claim. Plaintiff is entitled, however, to interest on
the amount of his payment from the date thereof at the rate
of S% per annum. ^

It is accordingly considered and adjudged that plaintiff
have and recover from defendant the sum of $1,123.88
with interest thereon, at 8% per annum from March 26,
1919, together with his costs.

IN THE UNITED STATES COURT FOR CHINA.
Zee Foh Sung, Plaintiff, v. Frank Fernandez, Defendant.

[Cause No. 846; filed March 8, 1920.]

SYLLABUS.

(By the Court.)

1. CONTRACTS: COURTS will not make contracts for parties nor in-

quire into the wisdom or advisability of their undertakings.

2. Id. : Guaranty. The language of a guaranty is construed most

strongly against the guarantor.

3. Id. : A Continuing Guaranty does not require notice to the guar-

antor of each item of credit extended; a general notice, within
a reasonable time after the whole transaction is closed, suffices.

4. Id. : Acceptance of a guaranty, and notice thereof, are effected

where both creditor and guarantor sign the written contract
which embodies it.

5. Id. : A Voluntary Payment must be applied in accordance with

the debtor's intention.

Messrs. Jernigan, Fessenden & Rose, by Mr. Rose, for
plaintiff.

Paul Myron Linebarger, Esq., for defendant.

* Federal. "Assumpsit for money had and received is an equitable
action to recover back money which the defendant in justice ought
not to retain, and it may be said that it lies in most, if not all,
cases where the defendant has moneys of the plaintiff which, ex
aequo et bono, he ought to refund." Nash v. Towne, 5, Wall. 889,
18 L. ed. 527.

Indiana. Sandage v. Manufacturing Co., 142 Ind. 148, 41 N. E. 380.

Wisconsin. Woodle v. Whitney, 23 Wis. 55, 99 Am. Dec. 102.

' Act of Congress of June 6, 1900, 31 U. S. Stats, at Large, sess. I,
Ch. 786, tit. Ill, sec. 255; Woodle v. Whitney, 23 Wis. 59, 99 Am.
Dec. 102.

ZEE FOH SUNG V. FERNANDEZ, MAR. 8, 1920. 957

LOBINGIER, J.:

This is an action on a written agreement by which de-
fendant sublet to plaintiff all of the Continental Hotel,
Shanghai, of which defendant was then the proprietor, ex-
cept the bar and certain bed rooms occupied by the latter.
The agreement contains the following clause which is the
only one here in dispute:

"The Lessor shall have the right to collect and receive on behalf
of the Lessee any and all moneys due to the Lessee for any refresh-
ment, boarding, or/and lodging which the Lessor shall have supplied
on behalf of the Lessee to any person or/and persons; he shall hand
over to the Lessee any and all moneys in cash as soon as he collects
and receives them in cash. He is not permitted to retain in his
possession any and all moneys due and belonging to the Lessee nor
to make any personal use of them. If any chits shall not be paid for
in cash, the Lessor must get them paid as soon as possible but not
later than the first and fifteenth days of every calendar month when
the Lessor must make payment of chits and hand over to the Lessee
any and all moneys due to the Lessee. If the Lessor shall not have
collected any money due under chits signed and not paid for, on the
first and fifteenth days of every calendar month, he must make pay-
ment in full of such chits, and hand over any money due according
to the chits to the Lessee. The Lessor must take care to supply re-
freshment, boarding, or/and lodging to any person or/and persons
in order to ensure due payment of the charges for the same. If
default shall be made in the payment of any chits on every first and
fifteenth days of every month, the Lessor must take the full respon-
sibility to make payment in full of any such chits to the Lessee."

"Chits" to the amount of Mex. $3,004.90 were admittedly
received by defendant from plaintiff who claims payment
therefor by virtue of the clause above quoted.

We cannot agree with defendant's counsel that it merely
gives his client the "right" to collect these chits. It does
that, of course, but it also imposes the obligation to pay.
"The lessor must make payment;" that phrase is repeated,
with slight variations, no less than thrice in this one clause.

Counsel pronounces this "a most preposterous guaranty"
and we are disposed to agree that it was not a prudent one.
But that alone affords no ground for relief. Courts cannot
make contracts for parties nor inquire into the wisdom or
advisability of their undertakings. For us it is enough that
this one was entered into voluntarily and of that there can

958 I EXTRATERRITORIAL CASES.

be no doubt. Defendant expressly admits that he read the
contract before signing and he was in a better position to
understand it than was plaintiff to whom the language was
foreign. And while defendant states its terms differently
than they read the contract speaks for itself. We do not
see that it is ambiguous and if it were, the rule in the Federal
Courts is that "the words of the guaranty (which counsel
declares this clause is) are to be taken as strongly against
the guarantor as the sense will admit." ^

A "chit" for $1 bears the indorsement "nothing doing"
and counsel asks if it is reasonable to suppose that defend-
ant ever guaranteed such a "chit." If that were the sole
indorsement we would think not because it is only "chits
signed and not paid for" of which, according to the con-
tract "he must make payment" and a "chit" merely so
indorsed is not "signed," as the parties evidently used the
term. And altho the "chit" in question is also indorsed
"Mr. Johnson" plaintiff makes no claim for its payment.

If among those claimed there is any not properly signed
defendant had an opportunity to show it but never attempted
to do so. Plaintiff testifies (p. 14) "In every case these
chits were presented to him (defendant) for his approval."
Defendant, in reply to the question, "Did he bring these
chits to you at all?" said "Not all" and later stated (p. 24)
"What he took at night he gave to my shroff in the morning.
Sometimes I saw them and sometimes not." The shroff
testified that he was given the chits every morning. This
not only afforded opportunity to verify all signatures; it
also constituted the notice of credit given required by the
rule which counsel invokes. Besides, a guaranty like this
is a continuing one and the creditor is not required to give
notice of each item of credit extended. A general notice
within a reasonable time after the whole transaction is
closed suffices,- and defendant's testimony (p. 16) that he
"made demand from time to time" is undisputed.

'Douglas V. Reynolds, 7 Pet. (U. S.) 113, 122, 8 L. ed. 630 (per
Story J., citing Mason v. Pritchard, 12 East 227) ; Drummond v.
Prestman, 12 Wheat (U. S.) 515, 518, 6 L. ed. 712.

' Douglas V. Reynolds, 7 Pet. (U. S.) 113, 8 L. ed. 626. Compare
Montgomery v. Kellogg, 43 Miss. 486 cited by defendant.

UNITED STATES V. CARVER ET AL., APR. 10, 1920. 959

Counsel also invokes the rule that an offer of guaranty-
must be accepted by the creditor before it binds the guaran-
tor.^ We are dealing here, however, not with a mere offer-
of guaranty but with a completed contract in which the
guaranty is but one feature, and by signing which plaintiff
as creditor not only accepted the guaranty but gave de-
fendant notice thereof.

The complaint states an additional claim for $302.57 of
which all but $50, which is claimed to have been paid, is
undisputed. Plaintiff admits the payment but states that
it was on another account while defendant's wife, who
actually made the payment, evidently means to say (p. 29)
that she intended it to apply on this account and since it
was a voluntary payment she had that right,* and the item
must be deducted from plaintiff's recovery.

It is therefore considered and adjudged that plaintiff
have and recover from defendant the sum of Mexican
$3,257.47 together with costs.

IN THE UNITED STATES COURT FOR CHINA.
United States v. Joseph Carver et al.

[Cause No. 960; filed April 10, 1920.]

SYLLABUS.

(By the Court.)

1. CRIMES: Liability: Aiding or Abetting. The law in force here

has abolished the distinction between principals and accessories
and every one who aids or abets the commission of a crime is
responsible therefor.

2. Id. : Id. : Id. : What Constitutes. Such aiding or abetting need

not be indispensable.

3. Id. : Reasonable Doubt is not a mere surmise that the accused

may not be guilty; it is a doubt which reasonable men may
entertain and give a good renson for after a thoro review and
sifting of the evidence.

4. Id. : Robbery: Evidence examined and found to show that all

four of the accused contributed to the commission of the rob-
bery charged, but moderate penalty imposed on account of their

' Citing Wills v. Ross, 77 Ind. 1 ; Smith v. Thesmann, 20 Okla. 133,
93 Pac. 977; King v. Batterson, 13 R. I. 117.
*Cyc. XXX, 1228.

960 I EXTRATERRITORIAL CASES.

youth and of the fact that this appeared to have been their
first serious offense.

Chauncey P. Holcomb, Esq., U. S. Dist. Atty., for the
prosecution.

Ferno J. Schuhl, Esq., for the defense.

LOBINGIER, J.;

The accused, who are naval enlisted men, are charged with
assault and robbery.' It appears that they were all at the
Victoria Bar on the night of March 12 and left there, when
the place closed at midnight, in company with two civilian
sailors, one of whom was the complaining witness, Carroll.
He testifies that the party passed thru several streets,
"some dark," defendant Boldish walking beside him, de-
fendant Mast in the lead and the other civilian sailor next.
When the latter turned a corner and passed out of sight
Carroll states that some one knocked him down and, when
he tried to rise, defendant Boldish struck him twice in the
face and took from him about one hundred dollars (includ-
ing a $50 note) which, the proprietor of the bar testifies,
he had just given Carroll in change, which transaction the
latter says Boldish had seen. Boldish admits that Carroll
was with him, was even leaning up against him. He denies
that he robbed Carroll and that he had seen him change
the money but does not deny striking him.

The direct evidence as to the corpus delicti being thus
confined to these two witnesses we have to determine which
is the more credible. The accuser is hardly as interested
a witness as the accused and no reason has been suggested
why the former should seek to fasten the crime unjustly
upon the latter. The complaining witness related these
details on several distinct occasions without material
variation. He seemed to speak with caution, to discriminate
carefully in his identification, and to avoid specifying more
than the one, tho, had he been prevaricating, he might
have charged all.

Boldish and Mast claim that Carroll was very drunk at
the time. The latter admits that he had been drinking but

'Federal Pen. Code, sees. 276, 284.

UNITED STATES V. CARVER ET AL., APR. 10, 1920. 961

denies that he was drunk and in this he is corroborated by
the proprietor of the bar, a disinterested witness. But Bold-
ish also states that Carroll ran to attack defendant Carver,
which seems not only inconsistent with the statement that
Carroll was very drunk but also improbable, as Carroll,
even with the other civilian sailor, would hardly attack one
of four blue jackets. Carroll's identification two days later
of Boldish as the principal is declared by Det. S^. Ross,
likewise a disinterested witness, and, in spite of the partial
denials of Boldish and Mast, must have satisfied the police
or Boldish would not have been arrested.

Defendant Carver admits having struck Carroll when he
"came running back" and without any claim of provocation
by the latter. He evidently knew of the robbery for he
stated to Lt. Wells, in the hearing- of Det. Sgt. Ross, that he
got none of the money but the next morning he gave $70
to another party so as to avoid suspicion by not having it
on his person. The amount included a $50 (American)
bill which Carver says he had received by (unregistered)
mail from his brother. But this was of the same denom-
ination as that received by Carroll in change and later
taken from him and Carver's explanation of where he got
it is affected by his testimony that he did not know of the
robbery after admitting to Lt. Wells that he did.

As we have seen, Carroll's testimony is that he was
knocked down just after the other civilian sailor had turned
the corner and passed out of sight. Behind him was de-
fendant Beck, according to the latter's testimony, and then
followed Boldish and Carroll, and last of all Carver. Car-
roll further testifies in answer to the

"Q. And who was in front of you just before you were struck in
the head?

A. Struck in the head at that time one little fellow, I don't know
what his name is."

This answers to the description of Beck and agrees with
his statement as to his position. Beck also says

"I saw Mast hit this big fellow (the other civilian) and then I
took a swipe at him."

Beck stated to Lt. Wells that he used a stick and that the
motive of the assault on Carroll was robbery but that he re-

14008 O. W. 61

962 I EXTRATERRITORIAL CASES.

ceived none of the money. Carver says that he saw this
civilian fall after being struck with what "sounded like a
board."

Mast and Boldish claim that the civilian started the fight
but it is difficult to believe that either or both of them
would make an unprovoked attack on the largest of these
blue jackets knowing, as they must, that the other three
would come to the rescue.

Mast claims that he did not see Carroll change his money
at the bar but he makes the significant admission that
he changed his marine's uniform for that of a blue jacket
"after we met Carroll" and the proprietor says that this
was done in the bar. Mast knew, he says, that changing
uniform was prohibited by the naval regulations and pun-
ishable by confinement "on bread and water" but he gives
no explanation for doing it except that it was "just
for a lark." The fact that he changed only "after
we met Carroll" seems to point to a purpose which made
disguise advisable. Carver and Beck also doffed the naval
uniforms which they wore at the time of the affair and
were in civilian clothes when arrested. Why all this con-
cealment, including Carver's transfer of the money, if de-
fendants' parts in this unfortunate affair were innocent?

It was not necessary that the four accused should have
planned a crime before coming to the bar or even before
leaving it. But there are indications of design in Mast's sud-
den change of uniform, in his leading the party thru certain
dark streets, in the fact th|at the other civilian was felled
after he had passed from Carroll's view and that three
of the blue jackets had picked up weapons and were pre-
pared, while the civilians were not.

It is true that complaining witness accuses only Boldish
of taking his money and that, as defendants' counsel con-
tends,- their mere presence at the scene of the crime would
not incriminate them. But if they were there to aid or
abet the criminal design, or if they did aid or abet it, the
not originally there for that purpose, they are liable equally

' Citing U. S. V. Johnson, 26 Fed. 682; People v. Ah Ping, 27 Calif.,
489; State v. Farr, 33 la. 553.

UNITED STATES V. CARVER ET AL., APR. 10, 1920. 963

with the chief perpetrator.^^ And in order to aid or abet,
it was not necessary that the accused should have contributed
to the commission of the crime in the sense that it could
not have occurred without them.* It was sufficient if they
encouraged ^ the actual perpetrator and they seem to have
done much more. Mast and Beck appear to have kept the
two civilians apart and to have disabled one while Boldish
and Carver attacked the other. There was thus direct
participation by all which facilitated the actual taking of
money by one.

In discussing the phrase "reasonable doubt" a well known
Judge '^ said in his charge to a jury:

"It is not a mere guess — a mere surmise — that one may not be
guilty of what is charged. It is a doubt that you may entertain, as
reasonable men, after a thoro review and consideration of the evi-
dence— a doubt for which a good reason, arising from the evidence,
can be given."

After such a "review and consideration" of this evidence
we are unable to entertain such a doubt or give such a reason
and we must, therefore, find the accused guilty of the crime
of robbery.

The maximum penalty is imprisonment for "not more
than fifteen years." '^ But in view of the youth of the ac-
cused and the fact that this appears to be their first serious
offense we shall reduce this to the lowest point consistent
with such seriousness and the necessary deterrent effect of
punishment.

Each is sentenced to serve two years in Bilibid Prison,
Manila, territory of the Philippines, and to pay one fourth
of the costs.

'Federal Penal Code, sec. 332; U. S. v. LeClair, ante, p. 414; U. S.
V. Johnson, 228 Fed. 253.

* State V. Tally, 102 Ala. 25, 15 So. 722.

' People V. Chapman, 62 Mich. 280, 28 N. W. 896; 16 Corpus Juris,
131.

' Speer, J., in U. S. v. Johnson, 26 Fed. 685.

Reasonable doubt does not mean all doubt. U. S. v. Wright, 16
Fed. 112.

'Federal Penal Code, sec. 284.

964 I EXTRATERRITORIAL CASES.

IN THE UNITED STATES COURT FOR CHINA.
A, TiLTON Steele, Plaintiff, v. American Trading Com-
pany, Defendant.

[Cause No. 798; filed April 20, 1920.]

SYLLABUS.
(By the Court.)

1. CONTRACTS: EMPLOYMENT. A contract of employment as "Chief

Accountant of our Shanghai office" for three years at a minimum
compensation of $10,000, conditioned upon the employee "doing
his work in an efficient and satisfactory way" cannot be ter-
minated by the employer on a ground independent of the
"way" in which the accountant did his work.

2. Id. : Id. : The Measure of Damages in an action by the employee

for the wrongful termination of such a contract (as dis-
tinguished from an action for salary) is the amount he would
have received thereunder, viz., $10,000, less any payments and
outside earnings.

3. Id.: Id.: Onus Probandl The employer has the burden of prov-

ing what other emplojrment the employee might obtain.

4. Id. : Id. : Exchange. Where such contract is silent as to the rate

of exchange, the evidence must show that the minds of the
parties met aliunde on a specific rate before it can be applied.

5. PLEADING: IMMATERIAL AVERMENTS are not admitted by a fail-

ure to deny and an averment must be clear and unequivocal
to support a judgment on the pleadings.

6. arbitration and award. Where the matter submitted is

the amount due under two contracts and the arbitrator merely
refers one of them to a third party, and leaves proof to be
taken elsewhere as regards the other, there is no valid award.

Jernigan, Fessenden & Rose, by Mr. Fessenden, and
Rodger & Haskell, by Mr. Haskell, for plaintiff.

Fleming, Davies & Bryan, by Mr. Bryan, for defendant.

LOBINGIER, J.:

Plaintiff sues for the breach of a contract of employment
evidenced in part by the following instrument (Ex. A) :

San Francisco, Cal., May 27, 1918.
Mr. a. Tilton Steele,

Present.
Dear Sir:

Confirming the writer's conversations with you during the past
few days, we have employed you as follows:

Position : Chief Accountant of our Shanghai office, the duties of

STEELE V. AMERICAN TRADING CO., APR. 20, 1920. 965

which office you are to take up as quickly as possible, proceeding
herefrom for Shanghai within about thirty days.

Duration of Etnploy merit: Three years from July 1 next or earlier
if the time of your departure from San Francisco for Shanghai
hereunder be earlier. Should you not leave San Francisco for
Shanghai hereunder prior to July 1, your salary will commence on
July 1.

Compensation: Two Hundred and Fifty ($250) Dollars, U. S.
Gold per month for the first year and for the second and third
year adjustments of salary to be made at the end of the first and
second year, as may be mutually agreed; your compensation, how-
ever, not to be less than Ten Thousand ($10,000) Dollars for the
entire period of three years.

Satisfactory Service: The undertakings herein contained on our
part are all conditioned upon your doing your work in an efficient
and satisfactory way.

Transportation to Shanghai: In addition to salary, as herein pro-
vided, we will provide you with first-class transportation to Shanghai.

Bond: It is a condition of your employment that you give any
bond the Company may require, the Company paying the premium
thereon.

Yours truly,

American Trading Company,
(Pacific Coast),
Louis A. Ward,
Vice Presideyit & Manager.
Confirmed & Accepted:

A. TiLTON Steele.

In its answer defendant alleged that this instrument was
executed not by it, but by a distinct corporation, viz., the
American Trading Company (Pacific Coast). But at the
trial defendant's executive head in Shanghai testified (pp.
16, 28) that plaintifi"s employment was authorized by de-
fendant's President. On August 6 following the execution
of said instrument, and pursuant to its terms, plaintiff
sailed from Seattle for Shanghai but while en route received
a radiogram from defendant's Vice President at Yokohama
reading :

This (there?) is probability your being required Tokyo office
for few months before going Shanghai. Please be prepared to
leave ship in Yokohama. Blake,

American Trading.

Following an interview at Yokohama defendant's Vice
President wrote plaintiff the following letter, after receiv-

966 I EXTRATERRITORIAL CASES.

ing which, he testifies (pp. 4, 5) he worked at defendant's
Tokyo office until May 3, 1919:

Tokyo, Aug. 27th, 1918.
A. Tilton Steele, Esq.,

Present,
Dear Sir:

We beg to confirm our conversation of yesterday's date with ref-
erence to your temporary employment in this Office.

Compensation: The Compensation provided for in your original
contract made with Mr. L. A. Ward, Vice President and Manager
of the American Trading Company of the Pacific Coast on May 27th
calls for a salary of $250 Gold per month, or a salary of not less
than $10,000 for the three years' period of your contract. We have
arranged that you are to receive $250 Gold at exchange .50, which
is the equivalent of Yen 500.00 per month together with an addi-
tional allowance of Yen 150 per month to cover any additional ex-
penses which you may be put to owing to the change in your plans.
The two items above mentioned will make a total of Yen 650 per
month which you will receive while you are in the employ of our
Tokyo Office.

Term of Em.ploym.ent: As explained to you, we wish you to re-
main in Tokyo during the time that Mr. Boyd is absent on holiday
which we estimate will be about six months. This time vdll, of
course, apply on your three years' term as mentioned in your orig-
inal contract.

Traveling Expenses: Any legitimate traveling expenses incurred
by you on behalf of the company will be refunded to you.

General: It is understood between us that this temporary arrange-
ment does not prejudice any verbal understanding which you may
have had with Mr. Ward or with Mr. Burns prior to your departure
from San Francisco.

We remain. Dear Sir,

Very truly yours,

American Trading Company,
D. H. Blake,
Vice President.

Nearly seven months later, the same party wrote again
as follows :

Tokyo, March 19, 1919.
A. Tilton Steele, Esq.,

American Trading Co.,

Tokyo.
Dear Sir:

With reference to our conversation of a few days ago, we beg
to confirm what we told you at that time, to the effect that we have
received word from Mr. Burns, Agent of our Shanghai Office, that

STEELE V. AMERICAN TRADING CO., APR. 20, 1920. 967

as he had made satisfactory arrangements with Mr. Manley to re-
main with the Company, he did not now want you to come to
Shanghai.

We also confirm our statement that as soon as Mr. Boyd returns
to his position in Tokyo, probably about the end of April, we shall
have no further use for your services here.

We cannot say what your recourse will be under your contract,
but, as intimated the other day, the writer will be glad to render
you such assistance as he can in order to effect a mutually satis-
factory settlement — but before anything can be done in this con-
nection it will be necessary for you to make some suggestions in the
premises.

We remain,

Yours very truly,

American Trading Company,
D. H. Blake,
Vice President.

Plaintiff testifies (pp. 11-13) that he later went to Shang-
hai and offered by telephone to carry out his contract with
defendant but was told not to come and this is confirmed
(p. 28) by defendant's agent in Shanghai. Plaintiff's em-
ployment, as we have seen (Ex. "A") was as "Chief Ac-
countant of our Shanghai office" and was "conditioned
upon your (his) doing your work in an efficient and satis-
factory way." Is it possible to decide that he was unable
so to do the work of that particular position when he was
given no opportunity to do it?

Plaintiff's counsel contends that

* * * "It is established beyond a shadow of a doubt by the
evidence, the conduct of defendant, and defendant's pleadings that
the defendant not only regarded the letter of August 27, 1918 and
the original contract as separate and distinct agreements but acted
accordingly even to the extent of denying being a party to the orig-
inal agreement," and "that evidence of unsatisfactory services under
one contract, performed in one country and under certain conditions,
is neither competent nor relevant to prove that services to be per-
formed in another country under different conditions, even though
for the same company, would be unsatisfactory."

But even if it be conceded, as defendant's counsel urges,
that "th§ letter of August 27 was merely a supplemental
agreement to the original contract," can we import into the
former all the terms of the latter? For the former was
not "conditioned upon" plaintiff's "doing his work in an

968 I EXTRATERRITORIAL CASES.

efficient and satisfactory way" and it contained no clause
authorizing defendant to discharge plaintiff within the
term of his "temporary employment" which was "during
the time that Mr. Boyd is absent" (Ex. "C"). Again,
and more important still, can we import into the original
contract of employment as "Chief Accountant of our Shang-
hai office" the condition of "doing his work in an efficient
and satisfactory way" as chief accountant in the Tokijo
office under a separate, even if supplemental, agreement,
so as to justify exclusion from the former for unsatisfactory
service in the latter? Such an attempt seems to approach
dangerously near the forbidden process of making a new
contract for the parties.

But, even were we to do so, we could not enlarge the
condition of the original contract that plaintiff should do
"his work in an efficient and satisfactory way." Counsel
contends that "the Court has merely to inquire '•' * *
whether or not the defendant was dissatisfied" and that we
"cannot decide whether defendant should have been sat-
isfied." But under a clause like this, which authorizes
discharge, not if defendant was "dissatisfied" with plain-
tiff, but only if the latter failed to do "his work in an ef-
ficient and satisfactory way," ^ we must, as we read the
authorities,- "inquire" and "decide" whether the dismissal

^ "Where the chief thing the parties have had in mind was to
effect some definite purpose or end, of the performance of which
others could judge just as well as the parties could, and which in-
volved no considerations strictly personal, the stipulation that it
should be done to the satisfaction of the party has been generally
held not to be controlling." Frary v. Rubber Co., 52 Minn. 264,
53 N. W. 1156. -

^ Louisiana. Hotchkiss v. Gretna Co., 36 La. Ann. 517.

Maine. Winship v. Portland etc. Ass'n., 78 Me. 571, 7 Atl. 706.

Mississippi. Atlanta Stove Works v. Hamilton, 83 Miss. 704,
35 So. 763.

Michigan. Jones v. Transp. Co., 51 Mich. 539, 16 N. W. 893.

New York. Doll v. Noble, 116 N. Y. 230, 22 N. E. 406 and
citations.

Texas. Rhodes Co. v. Frazier, 55 S. W. 192.

Vermont. Daggett v. Johnson, 49 Vt. 345.

STEELE V. AMERICAN TRADING CO., APR. 20, 1920. 969

was really because of the "way" plaintiff did his "work"
or on some other ground.

We find very little in the evidence as to the "way" in
which plaintiff did his "work" as chief accountant even
in Tokyo. Most of the criticisms of him relate to other
matters than his actual work as chief accountant. The
Shanghai agent of defendant testified (p. 18) that he ob-
jected to plaintiff "on account of his personality." But
his "personality" was not a ground for dismissal,^ even
under the original contract, unless it rendered his work
as chief accountant inefficient and unsatisfactory. And
the only reason given plaintiff for his dismissal was that
as the same agent "had made satisfactory arrangements
with Mr. Manley to remain with the Company, he did not
now want you to come to Shanghai" (Ex. D). Moreover
the incident stressed by Mr. Paget occurred after the dis-
missal (p. 63) and could not have furnished the cause
thereof. Certainly the conduct of the parties at the time
of the transaction, and not afterward, is the best index to
the real ground.

Counsel invokes a written statement (Ex. 2) prepared
by defendant's Vice President for the arbitration proceed-
ings hereafter mentioned. This document is dated May
10, 1919, after plaintiff had been discharged, and it is
objected to as not properly in evidence. But we have de-
cided to receive, for what they are worth, all exhibits
offered by either party and we shall notice this as the Vice
President's last and most carefully prepared statement of
his objections to plaintiff and one which he would hardly
have improved upon had he testified in Court.

The criticisms of plaintiff in the statement may be sum-
marized as follows: (1) Desire to change the system of ac-
counting; (2) tardiness in attendance and "disregard of
our office rules" (particulars not given) ; (3) writing let-
ters about the office to the Vice President of the American
Trading Co. (Pacific Coast).

' "Slight discourtesies, hasty words and occasional exhibitions of
irritation or even ill temper were not sufficient cause." Dick, /.,
charging the jury in Leatherberry v. Odell, 7 Fed. 645.

970 I EXTRATERRITORIAL CASES.

As to the first, plaintiff claims in his testimony (pp. 45
et seq.) that the system of accounting needed improvement.
There is no evidence that he was mistaken. On the con-
trary his proposals appear not to have been unwelcome
even up to the time he left the Tokyo office. On April
12 and again on April 30 he wrote regarding the matter
to the Vice President, the second letter reading in part as
follows :

"Re iTnprovement in the System of Account & Collections
May I know definitely if the suggestions embodied in my letter to
you dated April 12-19 are approved by you, and whether or not it
is your desire that I should remain in the Tokyo office to co-operate
with Messrs. Mauger & Boyd in the proposed changes?"

To this the Vice President replied on the same date:

"With reference to your letter of the 12th inst., I am keenly
interested in your suggestion, but it is quite impossible for me to
say at this time whether or not we shall put your suggested scheme
into operation."

Surely there is no suggestion in this that plaintiff's pro-
posals for improvement affected unfavorably the character
of his work.

As to the second complaint plaintiff denies (p. 41) the
charge that he disregarded office rules and testifies (p. 32) :

"On one or two occasions Mr. Blake saw me in the hall leading
to my office and he had already come in, I think it was about a
quarter of an hour or twenty minutes to nine, and he said 'well you
are late' and I said 'yes, but it was on the Company's business.'

Q. Now as a matter of fact during the period you served there
did you serve the full extent of the office period?

A. More than that. I didn't go to tiffin during the lunch hour
of twelve to two. I was the only person in the office during the
lunch period."

Plaintiff's duties as accountant were not like those of
a salesman or other employee who must meet the public at
certain hours. There is no claim that the time devoted
to his work as an accountant was insufficient.

As to the third complaint plaintiff states (pp. 44 et seq.)
that he wrote the Vice President at San Francisco be-
lieving him to be the superior of all and that it was to the
interest of the defendant company that he should receive

STEELE V. AMERICAN TRADING CO., APR. 20, 1920. 971

the information thus transmitted. In this plaintiff may-
have been mistaken but we cannot see that what he did
was any part of his "work" as chief accountant.

Plaintiff also testifies (pp. 31 et seq.) that these com-
plaints were not made to him by the Vice President at
Tokyo, that "the point of dissatisfaction was never men-
tioned" by the latter and that the real ground of plaintiff's
dismissal was quite different. This is corroborated by the
said Vice President's letter of March 19, 1919, quoted
above (p. 966) and by another which he wrote on the same
day to the San Francisco Vice President, reading in part
as follows :

"You will perhaps not be prepared for the news that Mr. Steele
is not going to Shanghai to our office at that port. I presume
that when Mr. Burns went through San Francisco this matter was
not discussed with you, because Mr. Burns thought at that time
that Mr. Steele would replace Mr. Manley after the return of Mr.
Boyd to Tokyo from his short holiday. In the meantime Mr. Burns
has made satisfactory arrangements with ^r. Manley and desires
to continue his services with the Company, — and that being the
case, he has no position for Mr. Steele." (Ex. 10.)

Not a word in this about unsatisfactory or inefficient
service. He was writing to another company official, and
could speak without reserve, yet the only cause assigned
for plaintiff's dismissal was that the Shanghai office had
persuaded another to remain in his place.

Finally in his letter of May 2, 1919, the same Vice Pres-
ident informs plaintiff

"that in giving up your duties and handing over charge of the
Accountant Department to Mr. Boyd, as requested by me, both ver-
bally and in writing, your rights and interests under your original
agreement with the Company, or my letter of August 27th, 1918,
will not be prejudiced in any way" (Ex. "G").

Such was defendant's position at the time of the dismis-
sal and before the statement of May 10 was prepared.
In view of it and the lack of countervailing evidence we
are unable to find that such dismissal took place because
plaintiff failed to do his work as Chief Accountant in the
Tokyo Office "in an efficient and satisfactory way;" or
that defendant sought to terminate on that ground his em-

972 I EXTRATERRITORIAL CASES.

ployment under the original contract; or that it was justi-
fied in so terminating said contract. It follows that we
must find that said contract was wrongfully terminated.

II.

But it is claimed that the question of the character of
plaintiff's work is determined against him on the pleadings
by virtue of the failure to deny in his replication the aver-
ment of the answer

"That the alleged services rendered by the plaintiff herein to
the defendant were neither satisfactory nor efficient, as required in
the contract alleged in plaintiff's petition, a copy of which is at-
tached thereto and marked Exhibit *A,' and that the said plaintiff
in the performance of his alleged duties was ineflficient, negligent
and insubordinate to his superiors."

But what were the "alleged services" and "alleged duties"
here mentioned? How were they alleged and by whom?
The complaint alleges nothing about plaintiff's "duties" or
"services." Neither did the contract (Ex. "A") require
the "services rendered by the plaintiff" — i. e., in Tokyo —
to be "satisfactory or efficient." The averment is, there-
fore, indefinite, whereas, to support a judgment, it "must
be distinct and unequivocal." *

Again the only services in issue here are the actual
(not alleged) ones which plaintiff rendered in Tokyo and
the future (tho not alleged) ones which he offered, but
was not permitted, to render in Shanghai. None of these
can correctly be included in the phrase "alleged services"
and the averment regarding them is thus also immaterial.
But immaterial allegations are not admitted by failure to
deny ^ and the only ones which are so admitted are those
which are well pleaded.'' For when a party bases his claim
on a technical rule of pleading, or a technical oversight
on the part of his adversary, his own pleadings must bear

* 23 Cyc. 731 (note 12) .
°31 Cyc. 209 (note 87).

°Id. (note 81); Alston v. Wilson, 44 la. 130, 132; Moulton v.
Doran, 10 Minn. 67 (49).

STEELE V. AMERICAN TRADING CO., APR. 20, 1920. 973

microscopic scrutiny and nothing therein will be implied or
supplied by intendment.

Plaintiff's counsel may have considered that defendant's
averment regarding "alleged services" was too vague and
uncertain to require a denial. Or they may have relied on
the practice heretofore followed in this Court that in the
absence of a reply new matter in the answer will be taken
as denied.'^ This is because the old Court Regulations ®
provide for but one pleading for each party and the Court
has not yet found time to frame a different rule. If by
this situation plaintiff were misled into his failure to deny,
it would be the Court's duty, even now, to permit him to
amend by adding such denial ^ for the case was tried on
the theory that he did not admit that his services were
inefficient or unsatisfactory. But we consider such amend-
ment unnecessary, because we could not base a judgment on
the averment regarding "alleged services," and the motion
for such judgment is overruled.

III.

It is also claimed that plaintiff is barred in this action
by an award. On May 2, 1919, he wrote defendant's Vice
President :

"It must also be distinctly understood between us, in writing,
in accordance with the terms of my understanding with our Ambas-
sador, the Hon'ble Mr. Roland Morris, reached in my conversation
with him at the Embassy yesterday, that we are both to agree and
to state such agreement in writing to him, assenting to the arbitra-
tion of the Hon'ble Mr. Potter, whose award must be considered as
binding to both parties in the matter of the main issue involved in
the case, viz., the amount of compensation to be paid to me here at
the Tokyo office of the company in full settlement of all my claims
against the company under the two agreements I have with the com-
pany."

' Compare the group of code states enumerated in 31 Cyc. 242
(56).

»Sec. 5.

* Act of Congress of June 6, 1900, sess. I, 31 U. S. Stats, at
Large, Ch. 786, tit. II, sees. 92, 97; Alaska Compiled Laws, sees.
924, 929; in force here under the doctrine of Biddle v. U. S., ante
p. 120.

974 I EXTRATERRITORIAL CASES,

And on the same date the Vice President replied:

"With reference to the arbitration of our differences, I confirm my
previously expressed willingness to acquiesce in the suggestion made
by H. E. Ambassador Morris, that the arbitration should be placed
in the hands of the Honorable Mr. Potter, who is at present in Tokyo,
and that his award should be binding on both parties, and shall
be settled in Tokyo."

Likewise on the same day the parties notified the Am-
bassador that

"In accordance with your kind suggestion, we, the undersigned
agree to the arbitration of our differences by the Honorable Mr.
Potter, and undertake to abide by and put into effect whatever award
he makes."

But the statement of what "our diff'erences" are, and
hence the real terms of submission, are found only in the
letters exchanged between the parties and the issue there
submitted is clearly enough stated in the words italicised
above. But the arbitrator, after briefs had been submitted
on both sides, expressed

"the opinion that the matter of the three year contract should be
referred to Mr. Ward in San Francisco for settlement; second, that
Mr. Blake should pay Mr. Steele in full until such time as Mr.
Steele can secure first class passage back to San Francisco less any
indebtedness that may be proved that Mr. Steele owes Mr. Blake."

Plaintiff's counsel deny that this constitutes a valid award
because it (1) fails to dispose of the issue submitted and
(2) attempts to delegate authority. We see no escape
from these objections. The arbitrator did not determine
"the amount of compensation to be paid" plaintiff "in full
settlement" of all his claims "under the two agreements"
nor was the matter "settled in Tokyo." On the contrary
he expressed the opinion that the whole "matter of the
three year contract (the principal of "the two agree-
ments") should be referred to" another "for settlement"
elsewhere. He, indeed, expressed the opinion that plaintiff
should be paid (presumably under the second contract as
the first was to be "referred" to another) "in full" until he
could secure return passage, which should have been a

STEELE V. AMERICAN TRADING CO., APR. 20, 1920. 975

matter of a few days; but such payment was to be "less
any indebtedness that may be proved."

How and where was it to be "proved"? Evidently not
before the arbitrator. As to the second contract, then,
plaintiff was left with the possible alternative — which he
ultimately adopted — of resorting- to the courts ; while as to
the first contract he was "referred to Mr. Ward in San Fran-
cisco for settlement." Both of these expedients were open
to plaintiff before submission and the action of the arbi-
trator, consequently, left him just where he was before.
To say that it "disposed" of the issue submitted, therefore, is
to trifle with language. And if it failed to dispose of that
issue it was not a bar to this proceeding. For under the
law in force here, which, in the absence of contrary proof,
is presumed ^^ to be the same as that of Japan where the
arbitration was held,

The award must be such a disposition of the matters submitted
that nothing further remains to fix the rights and obligations of the
parties, that the party against whom it is made can perform or pay
it without any further ascertainment of rights or duties, and that
further litigation shall not be necessary in order to adjust the matters
submitted."

Defendant's counsel contends that the phrase last above
quoted from the report of the arbitrator was not a delega-
tion of authority because he

"undoubtedly meant that Steele had no case against the American
Trading Co. of Maine and that he should proceed to San Francisco
and try to settle the matter with Mr. Ward."

If that is what he meant he chose an unfortunate mode of
expressing it. For the arbitrator's report contains no in-
timation that he considered plaintiff "had no case against"
defendant. If so why was "the matter of the three year
contract" (which was with defendant alone) to be "re-
ferred * * * for settlement'"? Since a "settlement"

" See the writer's "Foreign Laws," Am. & Eng. Encyc. of Law
(2nd ed.) XUI, 1061.
" Corpus Juris, V, 139.

976 I EXTRATERRITORIAL CASES.

of that matter was considered necessary there must have
been something to "settle" — i. e., a "case."

It is conceded that the arbitrator could not delegate his
authority to Mr. Ward or any one else.^- But if he did
not attempt to do so it was only because his language
amounted to nothing more than an expression of opinion
or suggestion in which case it was not an award at all.'^
If he did not expressly say "I refer the matter to Mr.
Ward" he likewise did not say "I award plaintiff this" and
"I reject or dismiss his claim as to that."

We find no defect in the replication as regards the alleged
award. Its averment that the same "is void and of no
effect and not binding on plaintiff" seems not only sufficient
as a pleading but in accordance with the facts and the law.

IV.

Under his original agreement plaintiff's compensation
was "not to be less than $10,000 for the entire period of
three years." In his brief (p. 27) he

"Admits having received the equivalent of Gold $2,500 on account
of the contract which leaves a balance of G. $7,500 which the plain-
tiff could have earned if he had not been wrongfully discharged."

The rule established for this jurisdiction in actions for
breach of contract is that

"the amount which would have been received if the contract had
been kept is the measure of damages if the contract is broken." "

And where, as here, the "cause of action was not for
wages but for damages for breach of the contract," ^^

"Id. 142.

"Lock V. Vulliamy, 5 B. & Ad. 600, 27 E. C. L. 255 (110 Reprint,
912).

"Benjamin v. Hillard, 23 How. (U. S.) 149, 16 L. ed., 518 (quoting
Alder v. Keighly, 15 M. & W., 117; Hadley v. Baxendale, 9 Exch.
341) ; Pierce v. R. Co., 173 U. S. 1, 43 L. ed., 591. "The amount of
the agreed wages may be taken as the measure of damages prima
facie." Saxonia etc. Co. v. Cook, 7 Colo. 569, 4 Pac. 1111, quoted with
approval in Alaska etc. Co. v. Chase, 128 Fed. 889.

"Alaska etc. Co. v. Chase, 128 Fed. 886, 889.

STEELE V. AMERICAN TRADING CO., APR. 20, 1920. 977

prospective damages — even those to accrue after the
trial ^"^ — may be included.

Defendant's counsel cites decisions ^' of certain state
Courts to the contention that

"plaintiff must not only allege but must prove a willingness to
perform and also that he has been unable to get other employment."

But the Appellate Court, in the principal case ^® already
cited, where there was no averment of inability "to get
other employment," has adopted a diiferent rule, quoting
a well known commentator who states it as follows :

"The burden of proof is on the defendant to show that the plain-
tiff might have obtained other employment; for the failure of the
plaintiff to obtain other employment does not affect the right of
action, but only goes in reduction of damages, and if nothing else
is shown, the plaintiff is entitled to recover the contract price upon
proving the defendant's violation of the contract, and his own willing-
ness to perform.""

We are unable to find that defendant in the case at bar
has assumed this burden. Its agent at Shanghai states
(p. 25) that "it should be easy" for a man of plaintiff's
qualifications and experience to obtain a position here. But
plaintiff testified (pp. 66 et seq.) that he had advertised

" American China Development Co. v. Boyd, 148 Fed. 258 (on
appeal from the Consular Court for the District of Shanghai and very
similar to the case at bar) citing Hochster v. De la Tour, 2 El. &
Bl. 678; Rhoades v. R. Co., 49 W. Va. 500, 39 S. E. 209. The first
case fixes the law for this jurisdiction regardless of the earlier cases
of Schroeder v. Trading Co., 95 Fed. 296 and Darst v. Alkali Works,
81 Fed. 284, cited by defendant and which limit recovery to date of
trial.

^'Kentucky. Shepherd v. Gambill, 96 S. W., 1104; Lewis Co. v.
Scott, 95 Ky. 484, 26 S. W. 192.

Mississippi. Hunt v. Crane, 33 Miss. 669, holding that where
plaintiff "obtains employment, the presumption is, that he gets the
best wages he can; because the strong inducement of self interest
would impel him to do so, and the idea is most unreasonable, that he
did not act accordingly."

Texas. Gulf etc. R. Co. v. Jackson, 29 Tex. Civ. App. 342, 69
S. W. 89.

" American China Development Co. v. Boyd, 148 Fed. 258.

" Sedgwick, Damages, (9th ed.) II, sec. 667.

14008 O. W. 62

978 I EXTRATERRITORIAL CASES.

in the newspapers and "had applied to over 60 firms here
personally." He stated that he could probably obtain a sub-
ordinate position as bookkeeper but intimates (p. 68) that
to accept it would cause him to lose standing as an account-
ant which any one familiar with conditions in Shanghai
can well understand. We cannot think that a party, whose
contract has been broken, is obliged, in order to reduce his
adversary's damages, to accept employment which would
affect injuriously his own future career. And while, as we
have seen, it was not incumbent on plaintiff to prove that
he had sufficiently sought other employment we think he
has done so even more satisfactorily than did the corre-
sponding party who held the burden of proof in one of the
cases which defendant cites and where the court said :

"While the evidence as to appellee's efforts to secure other em-
ployment, and as to what portion of the time covered by the contract
he was unable to secure other employment, is meager and somewhat
unsatisfactory, we cannot say that, in the absence of any contra-
dictory evidence on the part of appellant, it was too indefinite and
uncertain to support a finding for any wages due under the
contract." ="

The complaint alleges

"That the Defendant Corporation agreed to pay the Plaintiff
the aforesaid Ten Thousand Gold Dollars ($10,000) at an exchange
rate of Fifty Five Gold Cents to the Tael, and Seventy Two Tael
Cents to the Dollar Mexican ($1)."

But in their brief (p. 26) counsel frankly admit that "re-
garding the question of exchange there is more or less un-
certainty" and that in the original contract "nothing was
said about exchange." The chief support of the averment
above quoted is that part of plaintiff's testimony where he
relates an interview in San Francisco, after his original
agreement was executed, with the Shanghai agent of de-
fendant.

We do not find it necessary to resolve the question of
veracity between these two witnesses as to the authorship
of the memorandum of figures (Ex. "E") mentioned by

"Gulf etc. R. Co. V. Jackson, 29 Tex. Civ. App. 342, 69 S. W.
89, 91.

STEELE V. AMERICAN TRADING CO., APR. 20, 1920. 979

plaintiff. Regardless of who wrote them the figures throw
very little light on the crucial question whether the Shang-
hai agent did actually assume, in behalf of the defendant
company (even supposing he had such authority) , to make
the alleged rate of exchange a part of plaintiff's contract
and to pledge defendant's liability therefor. We doubt if
plaintiff's own testimony, standing alone, shows that he did,
or discloses anything more than information given by the
agent as to what the salary would be if the alleged rate were
agreed upon. To prove a contract for that rate it must
appear that the minds of both parties actually met thereon -^
and in the light of the whole testimony that seems more
than doubtful.

It must be remembered in this connection not only that
another agent was then in charge at Shanghai but that the
one with whom the interview was held opposed (pp. 18, 20)
plaintiff's employment. Indeed the latter's counsel in their
brief (p. 13) stress this fact as the real ground for plain-
tiff's dismissal. Is it reasonable to suppose, then, that
said agent would voluntarily undertake to supply a feature
of plaintiff's contract which he knew had been omitted by
his company and which would amount to more than doubling
plaintiff's salary?

But the interview did apprise plaintiff of the importance
of adding such a clause and he was then still in San Fran-
cisco where the contract was made and where it could
have been modified had such been the purpose of both par-
ties. Nay, more, when plaintiff reached Japan the second
agreement, which he there accepted, specifically fixed the
rate of exchange altho if plaintiff's theory of an existing
verbal contract were correct that would have been unneces-
sary except so far as to apply the agreed rate to Japanese
currency. We repeat as to plaintiff what we have already
said in effect of defendant that courts cannot make con-
tracts for parties.

The Court finds that plaintiff is entitled to recover as
damages for breach of his contract, as found above, the

" Shanghai Tannery Co., Ltd. v. American Trading Co., ante
p. 576.

980 I EXTRATERRITORIAL CASES.

unpaid balance of his guaranteed compensation, to-wit the
sum of seventy-five hundred dollars ($7,500), U. S. cur-
rency, less the item of fifty dollars ($50), Mexican currency,
which plaintiff admits (p. 74) having earned meanwhile.
It is accordingly considered and adjudged that plaintiff
have and recover from defendant the said sum, less the
said item, together with his costs.

IN THE UNITED STATES COURT FOR CHINA.

Mencarini & Co., Plaintiff, v. A. F. Thane & Co.,
Defendant.

[Cause No. 982; filed May 12, 1920.]

SYLLABUS.

(By the Court.)

1. CONTRACTS: TIME OF PERFORMANCE. The doctrine of Connell Bros.

Co. V. H. Diederichsen & Co., ante, pp. 297, 333, applied.

2. Id. : Id. : Sales. Where a vendee stipulates for delivery during

February and expressly states that he will not accept thereafter
he is not normally liable for goods tendered in March,

3. Id. : Id. : Force Majeure. Delay in shipment found not due to

force majeure.

Paul Myron Lineharger, Esq., for plaintiff.
Messrs. Fleming, Davies & Bryan, by Mr. By^yan, for de-
fendant.

LOBINGIER, J.:

This is an action to recover the sum of Tls. 6,120 as the
purchase price of a cargo of walnuts which plaintiff alleges
it "delivered" to defendant "in conformance with" a con-
tract previously entered into between the parties and which,
it is further alleged, "the defendant in violation of his
contract refused to accept." Defendant denies these aver-
ments, and the sole question presented is whether there
was such delivery as is here alleged.

It appears that there had been two previous contracts
between the parties, the second of which required "ship-
ment: late November, 1919." This period, it is conceded,
was extended, eventually, until January 9, 1920 ; but the

MENCARINI & CO. V. THANE & CO., MAY 12, 1920. 981

delivery in question is not claimed to have been made under
any of these extensions but by virtue of a later agreement
evidenced by a letter of February 16 from defendant to
plaintiff stating

"We now beg to advise you that we will accept the 70 tons of
walnuts which you state are being made ready for shipment in
Tientsin if shipped by direct steamer to San Francisco during the
month of February, but we will not accept them if trans-shipped at
Kobe, or any other port, or, if shipjjed after the 29th day of Feb-
ruary." (Ex. D.)

Plaintiff's representative states that the cargo in ques-
tion was ready for shipment by February 15 at which
date he engaged space on the "Stanley Dollar," scheduled
to sail from Taku Bar on February 26, for San Francisco.
It did not in fact sail until March 5 and the cargo was
not loaded until March 4. On March 10 defendant was
notified of the shipment and on the same day it replied,
declining to accept delivery.

There is no question as to the good faith of either party;
but plaintiff claims that it was unable to comply with the
requirement to ship "by direct steamer to San Francisco
during the month of February" and that having done its
utmost to meet that requirement the delay in shipment
should be excused. On the other hand defendant relies on
the principle that "in the contracts of merchants, time is
of the essence" ^ and its manager testifies that the reason
for fixing the limit at February 29 was to insure delivery
in San Francisco before April 1, since arrival later would
require the cargo to be classed as last season's crop and
necessitate a reduction in price.

Unfortunately for plaintiff's contention, the Court of
Appeals has decided adversely a very similar case,^ where
even the phraseology and the dates were almost identical.
There the vendor contracted to ship flour for the defendant
"during the month of February, 1912." As further stated
by the Court,^

' Norrington v. Wright, 115 U. S. 188, 29 L. ed. 366.

' Connell Bros. Co. v. H. Diederichsen & Co., ante, pp. 297, 333.

^Ante, p. 337,

982 I EXTRATERRITORIAL CASES.

"The flour was not fully loaded until March 3, and the steamer
sailed on March 8. It will thus be seen that there was a breach of
the contract in respect to the date of the shipment,"

and a judgment against defendant on that ground was
affirmed. As in this case, the original contract had been
made in the preceding October but there was not, as here,
an express announcement by the vendor that "we will not
accept * * * j£ shipped after the 29th day of Feb-
ruary." Moreover, "it was well known to both parties"
here, as in the case cited, "when the agreement was en-
tered into, that there was no regular line of transportation
between" Tientsin and San Francisco which would insure
shipment from the former port before the end of February.
Plaintiff invokes in argument, tho it does not plead, a
clause in the original contract exempting it from all re-
sponsibility for "non-delivery, delays, part delivery, or any
other occurrences caused by force majeure" specifying
various casualties not here occurring "or other acts beyond
their control." Aside from the question whether this
exemption was carried forward into the new agreement
evidenced by defendant's letter of February 16, above
quoted, a similar clause was held insufficient to excuse in
the case ■* last referred to. Moreover, it seems at least doubt-
ful whether the phrase force majeure ^ could be applied to
the facts here shown. As declared in the original English
case ^ on the subject,

*'when the party by his own contract creates a duty or charge upon
himself, he is bound to make it good, if he may, notwithstanding any
accident by inevitable necessity, because he might have provided
against it by his contract."

There was some testimony regarding the eifect of the
anti-Japanese boycott in Shantung Province in delaying
prior shipments under the original contracts, but since,
according to plaintiff's evidence, this particular cargo was
ready for shipment by February 15, its delay could in no
wise be attributed to that cause.

^ See a valuable note to L, R. A. (1916 F) 15 et seq.
'Paradine v. Jane, Aleyn, 26 (1647).

UNITED STATES V. SIN WAN PAO CO., MAY 15, 1920. 983

In view of the doctrine announced by the Court of Appeals
we have no alternative but to find for the defendant; but
while a judgment cannot be rendered in plaintiff's favor,
it is authorized, in pursuance of the stipulation between
the parties, to dispose of the cargo, which has meanwhile
arrived at San Francisco, and apply the proceeds to its
own use. There will be no allowance of costs to either
party.

IN THE UNITED STATES COURT FOR CHINA.
United States v. Sin Wan Pao Company.

[Cause No. 993; filed May 15, 1920.]

SYLLABUS.
(By th« Court)

1. CRIMES : Corporations. While it seems to have been originally

doubtful whether a private corporation was subject to criminal
liability the later development of the law has removed such
doubt.

2. Id. : Evolution of corporate criminal liability traced.

3. Id. : Penalty. Since a corporation cannot be imprisoned and is

subject only to be a fine, the latter, where both are prescribed,
should be a substantial one.

4. Id. The special duty of corporations enjoying the extraterritorial

privilege, to avoid all violation of law, commented on.

Chauncey P. Holcomb, Esq., U. S. Dist. Atty., for the
prosecution.

Fleming, Davies & Bryan, by Mr. Fleming, for the de-
fense.

LOBINGIER, J.:

The defendant is a corporation organized under the laws
of Delaware and registered at the American Consulate Gen-
eral in Shanghai, where it maintains and publishes, in the
Chinese language, a daily newspaper of large circulation.
The information before us charges it with having "published
a notice stating where certain obscene, lewd and indecent

984 I EXTRATERRITORIAL CASES.

books may be obtained," and the District Attorney asks for
a conviction under the statute penalizing

"Who (m) ever sells, or offers to sell, or give away * * ♦
any obscene, lewd, or indecent book, pamphlet, drawing, engraving,
picture, photograph, instrument, or article of indecent or immoral use,
or advertises the same for sale." ^

The language further set out in the information fully
sustains the averment — for the mere titles of these books,
as there translated, are unfit to be reproduced here. The
defendant, by its duly authorized attorney, enters a plea
of guilty but at the same time explains that the advertise-
ment of the books was accepted for publication and inserted
in the paper by a Chinese employee without the knowledge
of the directors, who are, it is but fair to state, gentlemen of
excellent reputation.

But, notwithstanding the plea of guilty, we must, before
imposing sentence, determine whether the offense is one
which the corporation, as such, could commit or whether
the individuals composing it are alone subject to prosecu-
tion. For the capacity of a corporation to commit crime
is not the same as that of a natural person. Indeed there
was a time in the history of our law when it was at least
doubtful whether such a prosecution as this would lie at
all; and its evolution from that stage forms an instructive
chapter in legal development.^

It is little more than two centuries now since Lord Holt
uttered, as reported,=^ his famous dictum that "a corporation
is not indictable but the particular members of it are."
So Blackstone,' writing two generations later, declares that

' Act of Congress of March 3, 1901, 31 U. S. Stats, at Large, Ch.
854, sec. 872.

* "The doctrine of holding corporations responsible for violation
of penal laws is one developed by gradual evolution; but it ia nona
the less the law, and is of healthful necessity and utility." Southern
Express Co. v. State, 1 Ga. App., 700, 58 S. E. 67. Compare Com.
V. Pulaski Co. Agr. Ass'n., 92 Ky. 197, 17 S. W. 442.

= Anonymous, 12 Mod. 559 (1701).

* Commentaries, I, 476.

UNITED STATES V. SIN WAN PAO CO., MAY 15, 1920. 985

"a corporation cannot commit treason, or felony or other crime in its
corporate capacity."

It was, indeed, recognized early that quasi corporations,
like towns and counties, were subject to prosecution for
neglect of duties imposed by law.^ But so late as 1823 the
highest court of Virginia, in considering an information
charging a Turnpike Company,

"in their corporate character, with a nuisance in obstructing a
common public highway and road, by digging it up, and placing
therein large quantities of stone and dirt, whereby the citizens of the
Commonwealth were hindered from passing and traveling on the
same; to their great damage and common nuisance,'"

was

"unanimously of opinion, that a Corporation, such as the President,
Directors and Company of the Swift Run Gap Turnpike Company,
cannot be impleaded by its artificial name for the criminal offense
stated in the information." '

In 1841 the Supreme Court of Maine sustained exceptions
to the conviction of a corporate defendant for maintaining
a nuisance, saying

°"Regina v. The County of Wilts, 1 Salk 359; The Queen v. The
Inhabitants of Cluworth, 6 Mod. 163, S. C; 1 Salk. 359, and in the
Queen v. Saintiff, 6 Mod. 255, Lord Holt himself held, that if a
common footway be in decay, an indictment must of necessity lie for
it, because an action will not lie without a special damage. It seems
to be true, moreover, was stated by Talfourd, Sergeant, Arguendo, in
the Queen v. Railway Co., 3 Queen's Bench, 227, that altho there was
at that time no direct authority in England for the position that a
corporation aggregate is indictable in the corporate name, yet the
course of precedents has been uniform for centuries, and the doctrine
has frequently been taken for granted, both in arguments and by
the judges. The case of Langforth Bridge Cro. Car. 565 (1635) ;
Regina v. The Inhabitants of Wilts, 1 Salk, 359 (1705) ; The King v.
Inhabitants of the West Riding of Yorkshire, 2 Blac. Rep. 685 (1770) ;
Rex V. The Inhabitants of Great Boughton, 5 Burr. 2700 (1771) ; The
King V. The Inhabitants of Clifton, 5 D. & E. 499 (1784) ; Rex v.
The Corporation of Liverpool, 3 East 86 (1802) ; Rex v. Mayor of
Stratford upon Avon, 14 East 348 (1811) ; Rex v. The City of Glou-
cester, Dougherty's Crown Circ. Ass. 359." Chief Justice Green in
State V. R. Co., 23 N. J. L. 364, 365 (1852).

' Com. V. Turnpike Co., 2 Va. Cas. 362.

^Id.

986 I EXTRATERRITORIAL CASES.

"We have been referred to no precedent where an indictment has
been sustained against a corporation, upon such a charge; and in
our opinion, the individuals concerned and not the corporation, must
be held criminally answerable for what has been done.""

And so late as 1864 the Supreme Court of Indiana " up-
held the dismissal of a prosecution against a railway com-
pany for obstructing a highway. Meanwhile, however, it
was held in England that a private railway corporation
was indictable for an act of nonfeasance in disregarding
a statute ^° and shortly afterward an indictment of such a
corporation for obstructing a highway, was upheld. ^^
These English decisions have been generally followed in
the United States. ^-

* State V. Great Works Co., 20 Me. 41, where it was further ob-
served :

"A corporation is created by law for certain beneficial purposes.
They can neither commit a crime or misdemeanor, by any positive
or affirmative act, or incite others to do so, as a corporation. While
assembled at a corporate meeting, a majority may, by a vote entered
upon their records, require an agent to commit a battery; but if he
does so, it cannot be regarded as a corporate act, for which the cor-
poration can be indicted. It would be stepping aside altogether from
their corporate powers. If indictable as a corporation for an offence,
thus incited by them, the innocent dissenting minority become equally
amenable to punishment with the guilty majority."

This decision was expressly overruled in State v. Portland, 74 Me.
268, 43 Am. Rep., 586, which, however, was against a municipal
corporation.

' State V. Ohio & Miss. R. Co., 23 Ind. 363.

'" Reg. V. Birmingham & Gloucester Ry. Co., 3 Q. B. 223, 11 L. J.
M. C. 134.

"■ Reg. V. Great North of England Ry. Co. 9 Q. B. 315, 2 Cox C. C.
70, 7 Eng. R. C. 466 (1846).

"Cyc. X, 1326 (14), 1227 (19).

"Experience showed the necessity of modifying the old rules; and
the decided tendency of modern decision has been to extend the ap-
plication of all legal remedies, both civil and criminal, to corporations,
and subject them thereto as in the case of individuals, so far as
is possible." Com. v. Pulaski Co. Agr. Assn., 92 Ky. 197, 17 S. W.
443. Compare So. Express Co. v. State, 1 Ga. App. 700, 52 S. E.
67.

UNITED STATES V. SIN WAN PAO CO.-, MAY 15, 1920. 987

There was once a tendency to exclude crimes which "in-
volve a criminal or immoral intent." ^^ But the latest de-
cisions have passed beyond that limit." Thus a private
corporation has been held subject to prosecution for crim-
inal libel/^ keeping a disorderly house,^'^ permitting gam-
bling/' violating the liquor laws/** and depositing obscene
matter in mails. ^'^

" X, 1231, Englayid. "Nobody has sought to fix them with acts of
immorality. These plainly derive their character from the corrupted
mind of the person committing them, and are violations of the social
duties that belong to men and subjects. A corporation which, as
such, has no such duties, cannot be guilty in these cases." Lord
Denman, C. J., in Reg. v. Great North of England Ry. Co., 9 Q. B.
315, 2 Cox, C. C. 70, 7 Eng. Rul. Cas. 466.

United States. U. S. v. MacAndrews & Forbes Co., 149 Fed. 823
where the court says:

"Authority is still producible, however, for the dogma that cor-
porations cannot be indicted for offenses which derive their criminal-
ity from evil intention (Commonwealth v. Proprietors of New Bedford
Bridge, 2 Gray [Mass.] 339), nor for any crime of which a corrupt
intent or malus animus is an essential ingredient (State v. Morris
& Essex Ry., 23 N. J. Law, 360)."

" Federal. "I think this is but the remnant of a theory always
fanciful and in process of abandonment." Hough, J., in U. S. v.
MacAndrews & Forbes Co., 149 Fed. 835.

Massachusetts. "We think that a corporation may be liable crim-
inally for certain offenses of which a specific intent may be a neces-
sary element. There is no more difficulty in imputing to a corporation
a specific intent in criminal proceedings than in civil." Telegram
Newspaper Co. v. Com., 172 Mass. 293, 52 N. E. 445, 44 L. R. A.,
159, 70 Am. St. Rep. 280.

" Massachusetts. Telegram Newspaper Co. v. Com., 178 Mass.
294, 52 N. E. 445, 44 L. R. A. 159, 70 Am. St. Rep. 280.

New York. People v. Star Co., 135 App. Div. 517, 120 N. Y.
498.

Tennessee. State v. Atchison, 71 Tenn. 729; Banner Pub. Co. v.
State, 16 Lea, 176, 57 Am. Rep., 214.

'" State v. Passaic Co. Agr. Soc, 54 N. J. L., 260, 23 Atl. 680.

" Com. V. Pulaski Co. Agr. Asso., 92 Ky. 197, 17 S. W. 442.

^'Federal. Joplin Mercantile Co. v. U. S., 213 Fed. 926.

Georgia. So. Express Co. v. State, 1 Ga. App. 700, 58 S. E. 67.

"U. S. v. N. Y. Herald Co., 159 Fed. 296, quoting U. S. v. Mac-
Andrews & Forbes Co., 149 Fed. 835.

988 I EXTRATERRITORIAL CASES.

In all of these acts (which are but a few of those included)
there would seem to have been as much or more exercise
of criminal intent as is required in order to commit the
offense here charged and we see no escape for defendant in
that direction.

II.

The remaining question involves the penalty. The stat-
ute -" prescribes a maximum term of imprisonment for one
year or a fine of $500, with a minimum of $50. Were de-
fendant a natural person some imprisonment would seem
to be necessary. For the published matter, while not ex-
tensive, is demoralizing in the extreme and whoever is
actually responsible for it made use of the protection af-
forded him by American registry. It will not do to permit
that to become a means of evading adequate punishment.
The number of American corporations in China has greatly
increased of late, nearly forty having been organized under
the Act of Congress of March 2, 1903. If all, or even a part,
of these were to escape the proper consequences of the
violation of law on the ground that the same were actually
committed by Chinese employees the result would be serious
indeed. If the increase of American corporations in China
is to continue, and is to receive official encouragement, it
is only upon the condition that they conform to our best
national standards. And especially in a matter like this,
where the morals of the Chinese public are so gravely af-
fected, the standards can be none too high and the care
exercised none too sedulous.

Nor is it a legal excuse that the directors of the defendant
corporation did not personally know of the objectionable
publication. In legal contemplation they were bound to
know. As was said by Federal Judge Hough, of the south-
ern district of New York, in a somewhat similar case :

"To fasten this species of knowledge upon a corporation requires
no other or different kind of legal inference than has long been used
to justify punitive damages in cases of tort against an incorporated
defendant. If a corporation can corporately know that an engineer is

'"Act of Congress of March 3, 1901, 31 U. S. Stats, at Large, Ch.
854, sec. 872.

ORIENTAL PRESS V. ROBERT DOLLAR CO., MAY 18, 1920. 989

an habitual drunkard,^^ it can even more surely know the ordinary
contents of a newspaper the publication of which is its reason for
existence.'^

The defendant cannot be imprisoned and the more serious
portion of the penalty is therefore excluded from considera-
tion. In view of this we agree with the District Attorney
that the fine should be a substantial one and we fix it at
$250 U. S. currency which sumi, together with the costs of
this prosecution, defendant is accordingly sentenced to pay.

IN THE UNITED STATES COURT FOR CHINA.

Oriental Press, Plaintiff, v. Robert Dollar Co.,
Defendant.

[Cause No. 806; filed May 18, 1920.]

SYLLABUS.

(By the Court.)

1. WAREHOUSEMEN; DEFINED. A shipper who regularly stores cargo

for profit is a "warehouseman" within the meaning of the ware-
house Receipts Act.

2. Id. : Id. : Lien. A warehouseman's lien, at common law, attached

only to the specific property for which the storage charge was
imposed.

3. Id.: Id.: But by Said Statute, which is in force in this jurisdic-

tion, the lien for such charge attaches to other goods of the
same bailor "whenever deposited."

4. Id. : Id.: Charges: A General Custom among warehousemen in

Shanghai to charge a month storage on goods left more than
ten days, will be enforced in the absence of a showing of un-
reasonableness.

/. Em. Lemiere, Esq., for plaintiff.
Messrs. Fleming, Davies & Bryan, by Mr. Brijan, for de-
fendant.

LOBINGIER, J.:

This is an action to recover back a payment by plaintiff
to defendant of Tls. 659.80 and an additional sum as dam-
ages for the latter's alleged refusal to release a cargo of

=' Cleghorn v. N. Y. Central etc. R. Co., 56 N. Y. 44, 15 Am. Rep.
375.

'' U. S. V. New York Herald Co., 159 Fed. 296.

990 I EXTRATERRITORIAL CASES.

paper. No witness, who claims to have been present and
heard such refusal, testifies thereto, and defendant's wharf
manager, who was present and in charge of deliveries,
expressly states (p. 30) that the cargo was not withheld.
He further testifies, hojvever, that plaintiff's

"representative came up to take delivery of it and we said all right
let it go ahead and don't forget that you owe us Tls. 659.80 storage
on the Bessie Dollar and I am going to cover myself. You can go
ahead and take delivery — take this up with your manager and tell
him that if you don't pay this amount before this is all delivered,
I am going to retain some of this cargo to cover the amount of this
storage bill. Having told his representative that, I phoned to the
Oriental Press and told Mr. Bos the same thing. That I think was
on the 9th of June. I think on the 10th of June the accounting de-
partment of the Robert Dollar Company phoned me that this had been
paid and credited to their account, and so I said go ahead, and he
then finished it up and there was no stoppage at all."

The "Tls. 659.80 storage" here referred to was for a
cargo which had arrived some two weeks previously on
March 17 and passed the customs "between 4.20 and 4.30
p. m." on March 26. Two apparently disinterested wit-
nesses, actively connected with the shipping business in
Shanghai, corroborate the wharf manager that, according
to the custom prevailing in Shanghai shipping circles, the
ten-day period of free storage terminated on the last named
date and that thereafter defendant was entitled to charge
for one month storage as it did. We do not think this is
overcome by testimony that other shippers "if you ask it
* * * will grant you one day sometimes" (p. 14).

Defendant having the right to impose the charge for
storage did it also have the right to enforce the charge by
retaining subsequent cargo? Its counsel concedes that at
common law the lien extended only to the specific goods
for which the charge was made.^ But under a statute,^
admittedly in force in this jurisdiction,

"A warehouseman's lien may be enforced against all goods, when-
ever' deposited, belonging to the person who is liable as debtor."

' Cyc, XL, 454.

' Act of Congress of April 15, 1910, 36 U. S. Stats, at Large, Pt.
I, p. 301, sec. 28.

This is the statute adopting for Federal territory the Warehouse
Receipts Act, drafted originally by Professor Samuel Williston of

HONIGSBERG & CO. V. JONES, MAY 2 6, 1920. 991

The term "warehouseman" is defined ^ in the act as "a
person la\vfully engaged in the business of storing goods
for profit" which would seem clearly to include defendant.
Nor does the exception * regarding negotiable receipts apply
here for no such receipt appears to have been issued. It
follows that defendant has a lien on the cargo in question
for storage charges on the previous cargo, altho the lien
on the latter was, as plaintiff claims, lost by its delivery.^
It follows also that defendant was within its rights in
requiring payment of such prior storage charges before
permitting complete delivery of the second cargo.

Such being the case the question of what plaintiff's dam-
ages would have been had such requirement been wrongful
becomes purely academic. As defendant's counsel points
out, however, there is no evidence that the bill for coolie
hire, alleged to have been caused by delayed delivery, has
ever been paid.

On the whole we must find for defendant and it is ac-
cordingly considered and adjudged that plaintiff take noth-
ing by its petition and that defendant recover its costs.

IN THE UNITED STATES COURT FOR CHINA.

H. S. HONIGSBERG & Co., INC., Plaintiff, v. Charles B.

Jones, Defendant.

[Cause No. 996; filed May 26, 1920.]

SYLLABUS.
(By the Court.)

1. CONTRACTS: FRAUD, in making, defined.

2, Id. : Id. : Rescission of a contract on the ground of fraud requires

that all the elements thereof be proven.

Harvard Law School and others of the National Conference of Com-
missioners on Uniform Laws (see their Proceedings, 1919, pp. 154
et seq.), beginning with 1904, and now in force in at least 44 juris-
dictions including all but nine states. It thus represents the most
advanced legislative thought on the subject. But even before its
enactment there were statutes which had changed the common law
rule. See Stallman v. Kimberly, 121 N. Y. 393, 24 N. E. 939;
Kaufman v. Leonard, 139 Mich. 104, 102 N. W. 632.

• Id., sec. 58.

*Id., sec. 30.

'Id., sec. 29.

992 I EXTRATERRITORIAL CASES.

3. Id. : Id. : Id. : A showing which fails to establish that the applicant

relied on the alleged misrepresentation to his damage, is insuf-
ficient.

4. Id. : Injunction. A clause in a contract of employment, forbid-

ding the employee to engage, within two years from its termina-
tion, in the service of a competitor at a point where the
employer has a branch in China, is reasonable and enforcible
by injunction.

5. PLEADING: AMENDMENTS after trial are allowed, as a rule, only

when they do not substantially change the cause of action or
defence.

Messrs. Jemigmi, Fessenden & Rose, by Mr. Rose, for
plaintiff.

Messrs. Fleming, Davies & Bryan, by Mr. Bryan, for de-
fendant.

LOBINGIER, J.:

In February last at San Francisco the parties to this
cause entered into a written contract whereby defendant
engaged to serve plaintiff (which is a corporation engaged
in the sale and hiring of automobiles),

"in the capacity of shop foreman in the Company's shops at Shang-
hai, China, or at any other places in China at which the said company
has or may have branches or in any other capacity at the places as
aforesaid as the company in its discretion may from time to time
decide, for the period of three years beginning on the tenth day of
February, 1920."

The contract fixes the salary at $350 per month, which,
however, "may be increased from time to time in the dis-
cretion of the company," provides for free "medical atten-
tion" during the period of actual service and that

"if the said employee shall satisfactorily serve the company * * w
and upon expiration of said period desires to return to the United
States, the company shall furnish the employee with first class pas-
sage from Shanghai to San Francisco and will refund to said em-
ployee such amount as shall have been paid by said employee for the
passage of his wife from San Francisco to Shanghai."

Defendant undertakes on his part that he

"will not take employment with any firm, person or corporation, com-
peting with the said company in any manner at Shanghai, China,

HONIGSBERG & CO. V. JONES, MAY 26, 1920. 993

or in any other place in China where the said company has or may
have a branch of its business, within two years from the expiration,
or other or sooner determination, of this agreement."

It is not claimed that plaintiff has failed to observe any
of these provisions. Altho not expressly required thereby,
plaintiff, it is admitted, furnished both defendant and his
wife with first class passage from San Francisco to Shang-
hai and also with additional money for expenses on the
journey which was completed by arrival here about March
10. On April 15, it is further admitted, defendant was
voluntarily promised an increase of $25 per month and on
April 24 he was called, in company with plaintiff's manager,
to the office of the President, Mr, Seitz, who testifies that
he had heard of defendant seeking other employment and
inquired if it were true but that defendant denied it. In
his testimony, however, defendant admits that he had
sought other employment and was then negotiating with
Dodge & Seymour for a position at a salary of $625 per
month. On April 26 he mailed a letter of resignation and
two days later sent another (Ex. A) asking for "a letter
confirming cancellation of my contract." To this plaintiff
replied on May 3, declining to waive its rights thereunder
or to accept his resignation and on the same day defendant
left its employ.

This action to enforce the contract was commenced on
May 10, 1920, the petition setting out the contract and
alleging its wrongful breach. Defendant answered admit-
ting practically all the averments of the petition except
that the breach was wrongful but asking that the contract
"be set aside and declared null, void and of no effect,"
on the ground that

"at the siting thereof the plaintiff, thru its duly authorized agent
and attorney, H. S. Honigsberg, with full knowledge of the manner
of and style in which the said defendant had previously lived at San
Francisco, California, falsely and fraudulently represented to said
defendant that a married couple could live in Shanghai and China
in the same manner and style as he, the said defendant, and his wife
to be, had been living in San Francisco, California, for the sum of
$160 per month."

14008 O. W. 63

994 I EXTRATERRITORIAL CASES.

Plaintiff's manager admits that he

"told Mr. Jones that it would cost him around $160 a month to live
in Shanghai * * * as a married man."

He denies, however, any knowledge as to defendant's
"manner and style of living in San Francisco" and explains
that he (the manager) referred to board and lodging only —
not at a hotel nor in the form of housekeeping but at one
of the cheaper boarding houses patronized by mechanic?.
He based the statement, he says, upon the experience of his
own employees who were paying that amount for board and
lodging when he left Shanghai in the previous October.
One of these (Watson) testifies that up to December last
he was paying $150 per month for himself and wife, that
he knew of another married mechanic who was paying the
same and that since then he has been paying $165. Mr.
Seitz, the President of the Company, corroborates the es-
timate and while defendant states that Watson recently
told him he was paying $185 per month, no foundation was
laid for impeachment during the examination of Watson
while the assailed statement of plaintiff's manager relates
to an earlier period.

But the question which we have here to determine is not
merely whether that statement was true. For, in order to
justify the rescission of this contract, defendant must prove
not only that it was untrue but also, that it was, as alleged,
fy^audident. As declared in the books,

"The general rule is that to constitute actionable fraud it must
appear: (1) That defendant made a material representation; (2)
that it was false; (3) that when he made it he knew that it was
false, or made it recklessly, without any knowledge of its truth
and as a positive assertion; (4) that he made it with the intention
that it should be acted upon by plaintiff; (5) that plaintiff acted in
reliance upon it; and (6) that he thereby suffered injury."^

All of these elements then must be established by the
party who alleges fraud — which is never presumed. With-
out dwelling further upon the other elements above set forth
let us inquire whether defendant has met the burden of
proving numbers 5 and 6. In other words has he estab-

'Cyc. XX, 13. Cf. Anson, Contracts (Huffcut's ed.) p. 205.

HONIGSBERG & CO. V. JONES, MAY 26, 1920. 995

lished, by a preponderance of the evidence, that he "acted
in reliance upon" the representation complained of and
"that he thereby suffered injury"? For without such a
showing it would not avail him to establish the other
elements.

Defendant states that he understood plaintiff's manager
to mean that his entire necessary expenses in Shanghai
would not exceed $150 to $160 per month and that it was
because he so believed that he accepted the employment
and came to China. But he admits that he did not question
the manager as to what the latter meant by the phrase
"living expenses" and other portions of his testimony show
that he could not reasonably have given the phrase as wide
a scope as he claims; for he says

"on the day after I signed the contract he stated that he would give
me $50 more on the month, that he did not think I could get by on
^300."

But if defendant had signed on the understanding that
all his necessary expenses would fall within $150 to $160
per month why did he not then and there charge misrepre-
sentation and refuse to go to China upon learning that, in
the manager's opinion, he "could not get by on $300"? For
the phrase "get by" is hardly less definite in popular par-
lance than "living expenses." Again, a broad interpreta-
tion of the latter phrase might include "medical attention"
but defendant could hardly have relied upon such an under-
standing for that item is expressly provided for in the
contract.

Moreover not only did defendant fail to interrogate the
manager as to what he meant by "living expenses" but he
made no inquiries elsewhere altho he already knew in San
Francisco Mr. Neilson from Shanghai at whose mother's
boarding house he subsequently lived. He states that from
March 10 to April 1 he paid $175 for board but he does not
claim to have charged plaintiff's manager with having de-
frauded him because of the statement complained of. He
also claims to have spent $400 during April but in his
second letter of resignation, written almost at the end of
the month, he says nothing about having been defrauded

996 I EXTRATERRITORIAL CASES.

or considering the contract in any way affected by said
statement. On the contrary he treats the contract as fully
in force and offers "to refund all expenses * * * paid
by you" in order to secure its cancellation. His interview
with Mr. Seitz, on April 24, would seem to have afforded
him an opportunity for placing before the proper com-
pany official the now alleged misrepresentation, had he
relied on it then, but Mr. Seitz testifies that he did not
and defendant does not claim that he did. The manager
testifies that defendant never mentioned the higher cost of
living as a ground for leaving plaintiff's employment and
defendant admits that when he did leave on May 3 he gave
as his sole reason that his services were not considered
satisfactory. It is not indeed until his letter of May 7,
written after he had left and repudiated the contract, that
we find any claim of misrepresentation. If defendant had
relied thereon, to the extent that he now claims, it would
naturally have figured in the controversy from the begin-
ning; whereas it does not appear to have been mentioned
until defendant found a chance to earn more with Dodge
& Seymour.

Finally, it is to be noted that the contract does not call
for defendant's employment at Shanghai alone but "at any
other place in China at which the said Company has or
may have branches." The testimony is undisputed that
plaintiff had and has under contemplation the opening of
a branch at Peking to which defendant was to be sent, and
the cost of living at Shanghai could hardly have been the
sole, or even the controlling, consideration in accepting
employment. The burden is on defendant to prove clearly
his reliance on the representation complained of and his
mere statement that he relied thereon will hardly suffice if
his conduct is inconsistent with such reliance.

Again, does defendant show that he was damaged by
the representation? Had he been induced to give up a
position to come to Shanghai on a salary of $160 per
month, under the assurance that it would cover all expenses,
a very different situation would have been presented; but
defendant does not claim that any feature of the contract

HONIGSBERG & CO. V. JONES, MAY 26, 1920. 997

was misrepresented. On the contrary his compensation,
which was originally fixed at $300 a month, was voluntarily
increased to $350 and later to $375, whereas in San Fran-
cisco he was receiving, according to his own statement, $50
per week with certain perquisites which at best would
amount to $100, or more, less than the contracted salary
in Shanghai ; while according to the witness Rick, who knew
defendant in San Francisco, "a flat salary of $50 a week"
was the most he received. Defendant claims, indeed, that
he was able to save some money in San Francisco but that
was before his marriage which event necessarily changed
the whole situation.

We are not convinced that a salary of $225, $250 or even
$275 per month in San Francisco was better than one of
$375 in China with free "medical attention" and travelling
expenses. And unless we could so find we could not de-
termine that plaintiff" has yet incurred damages by enter-
ing into this contract. And as was said by Federal Judge
Severens, of the Eastern Michigan District,

"If none (damages) ever result there is no injury and, of course,
no action in any form can be maintained." "

A contract is not a mere "scrap of paper." It is a solemn
and binding obligation and ought to be treated as sacred —
not only by the parties thereto but by the Courts and all
others who have occasion to deal with it. Far better is it
that individuals occasionally incur inconvenience or even
hardship than that the inviolability of contracts, upon
which rests the security of the business world, should be
impaired.

There are, indeed, certain recognized grounds upon which
a contract once entered into may be set aside; but these
are safeguarded and restricted and may be invoked only
by those who are prepared to meet the conditions which the
law imposes. If, as here, the application for relief is based
on the sole ground that a certain representation was fraud-
ulent, the applicant must show by a preponderance of the

^ In re Pennewell, 119 Fed. 139, 143. See also Kimmans v.
Chandler 13 Iowa 327; Freeman v. Venner, 120 Mass. 424.

998 I EXTRATERRITORIAL CASES.

evidence that all the elements of legal fraud are present.
We are unable to find that defendant has done so and it
is unnecessary to consider the further question whether he
has established any.

After the close of the trial, and, indeed, after the argu-
ments of counsel, defendant asked leave to file an amended
answer and counterclaim setting up that the contract "was
entered into by the defendant on account of a mutual mis-
take made by the parties." But such an amendment would
"substantially change the cause of action" set up in defend-
ant's counterclaim and does not therefore come within the
statute ^ providing for amendments. Moreover to allow
such an amendment now would mean a retrial of the case
when the facts must have been quite as well known to
plaintiff at the beginning of the recent trial as they are now.

But the supplemental petition which plaintiff tendered
does not so change the cause of action, requires no further
evidence, and has met no objection from defendant who
has now had notice of it for some time. It amounts to
nothing more, indeed, than the amplification of the prayer
from a general to a specific one asking for an injunction,
on the facts admitted, to prevent defendant's contemplated
breach of paragraph 6 of the contract. That paragraph is
explicit and enforcible within the doctrine already laid
down * by this Court, being limited in time if not in place.
In view of defendant's own testimony that, in spite of it,
he has sought similar employment elsewhere in Shanghai
we think that defendant is entitled to such relief.

It appears from the evidence that plaintiff's advances to
defendant, and other expenses incurred in his behalf,
amount to about one thousand dollars. There are other
possible items of damage, such as delay in opening a branch
at Peking, where it was intended to send defendant, and
the showing that plaintiff has been left shorthanded by de-
fendant's departure, while it will be several months before
a substitute can be found. But we think the sum named
is all that the evidence will fairly support.

' Act of Congress of June 6, 1900, sess. I, 31 U. S. Stats, at Large,
Ch. 786, tit. II, sec. 92.

^ John Layton Company v. Blomberg, ante, pp. 762, 818.

HONIGSBERG & CO. V. JONES, MAY 26, 1920. 999

Defendant's motion for leave to amend is overruled, the
supplemental petition is permitted to be filed, and it is
accordingly considered and adjudged that the defendant
take nothing by his counter-claim; that plaintiff recover
from defendant the sum of one thousand dollars ($1,000),
U. S. currency, together with his costs ; and that defendant
be enjoined from taking employment within two years "with
any firm, person or corporation competing with the said
plaintiff company in any manner at Shanghai, or in any
place in China where the said company has or may have
a branch of its business."

In Cause No. 945, Fearon, Daniel & Co., Inc. v. Robert F. Hall,
the same Judge, sitting at Tientsin, delivered the following judg-
ment on June 26, 1920:

On May 15, 1918, the parties to this cause entered into a written
contract by which plaintiff employed defendant for a term of three
years in the capacity "of a technical paint man for the furtherance
of their paint business in China," defendant undertaking thereby
that he would

"not at the expiration of this contract, and for a period of three
years thereafter engage in or enter the employ of another party
in China in the same capacity."

In February, 1920, defendant left plaintiff's employ and became
the manager of a new concern in Tientsin known as the "American
Paint & Product Company," a statement of whose purposes, which
defendant admits was practically as he gave it, appeared in a
Tientsin newspaper to the effect that

"the new Company would give most of its time to paints, in the
way of general sales, and to make a specialty of painting and
decorating, while later on they would do a general import and export

business."

Defendant also admits that in this connection he purchased paint
and sought contracts for painting. On March 4, 1920, plaintiff filed
a complaint herein praying for an injunction to prevent defendant
"from in any way engaging in or entering into a paint business
in China. Application having been made for a restraining order,
defendant on April 19, signed an undertaking "to refrain from en-
gaging in the paint business in any form pending the final hear-
ing of this cause"; whereupon the same was continued until the reg-
ular session at Tientsin.

The facts being thus indicated the sole question is whether plain-
tiff is entitled, as a matter of law, to the relief sought. The pro-
hibition of entering into other employment, as we have seen, is for
a limited time, i. e., three years after the expiration of the contract.
As the plaintiff alleges that defendant left its employ on or about

1000 I EXTRATERRITORIAL CASES.

February 1, 1920, and as there is no averment or evidence of any
opposition on the plaintiff's part we can only assume that the con-
tract was terminated by mutual consent and the three-year period
above mentioned would consequently run from February 1, 1920. The
prohibition of this limit in time is free from the objections which led
to the denial of a permanent injunction in the leading case ' decided
by this Court. Moreover in that case the evidence disclosed that
complainant had but one plant in China and that at Hankow,
whereas in the case at bar it appears that plaintiff has no less
than six offices in China, that it operates the paint business in
those and other offices and transacts, according to the testimony,
75% of all paint business in China including sales to missionaries
in various parts and extensive contracts like the painting of signs
for the British American Tobacco Company. It is clear therefore
that the observations in the case last cited as to the unreasonable-
ness of a restriction applying to all of China are not applicable
here and that plaintiff has made a showing of need for protection
in its business which was wholly wanting in the other case. The facts
here, indeed, are much more nearly parallel to a recent decision -
of the Court in which such an injunction was granted; for while
there the order applied to "any place in China where the said com-
pany has or may have a branch of its business" it really operated
in Shanghai alone since the testimony showed that no branch had
then been established elsewhere.

Under the evidence in this cause we must find that the restric-
tions of the contract as regards both time and place are not unreason-
able and that plaintiff is consequently entitled to the enforcement
thereof.

Defendant is accordingly enjoined from engaging or entering the
employ of another party in China in the capacity of a technical
paint man for three years from February 1, 1920, and is further
adjudged to pay the costs of this proceeding.

IN THE UNITED STATES COURT FOR CHINA.
In re William Howard's Will.

[Cause No. 614; filed June 10, 1920.]

SYLLABUS.
(By the Court.)

1. WILLS: Interpretation. A clause directing the investment of the
testator's funds "for the benefit of my wife * * * and
daughter" constitutes a direct bequest to each in equal shares.

^ John Layton Co. v. Blomberg, ante, p. 818, where the authorities
English and American are reviewed.

' H. S. Honigsberg & Co., Inc., v. Jones, ante, p. 999.

IN RE HOWARD'S WILL, JUNE 10, 1920. IQOl

2. AGE. While the normal age of majority in this jurisdiction, for
both sexes, is twenty-one years, a female beneficiary under a
will is entitled to payment of the bequest on attaining the age
of eighteen.

LOBINGIER, J.:

The will involved in this case directs

"that all monies due to me be collected, including gratuity from the
Chinese Maritime Customs, and ijivested by the honorable United
States Court for China to the best advantage for the benefit of my
wife. Ah Chan (Mrs. W. Howard) and our daughter Mamie How-
ard; that my clothing, jewelry, books, photos and furniture be given
to my wife, Ah Chan, for her and our daughter's benefit without
any restrictions whatsoever."

Such provisions may be treated as direct bequests ^ to the
widow and surviving daughter of the deceased in equal
shares. - Pursuant thereto, the administrator cum testa-
mento annexo (no executor having been named) delivered
the funds of the estate to the Clerk of this Court who was di-
rected to, and did, invest the same "in Shanghai Municipal
Loan of 1917 (short term) 1% debentures." The income
from this investment has been regularly paid to the widow
who now asks that the securities be distributed to her and
the daughter, who, the former states, is about eighteen.
The question therefore arises whether the appointment of
a guardian for the daughter is necessary or whether dis-
tribution may be made direct.

Under a statute in force in this jurisdiction

"all persons shall be deemed to have arrived at majority at the age
of twenty-one years, and thereafter shall have control of their own
actions and business, and have all the rights and be subject to all
the liabilities of citizens of full age.""

'In the Estate (No. 40) of Thomas Buckley Owen, U. S. Court for
China, October 11, 1907, it was held that the following clause " 'I
hereby give and bequeath to my successor in the woi"k the library in
trust for the Hardy Bible Training School,' is and shall be interpreted
as making an unrestricted bequest to said Hardy Bible Training
School."

" In re Trinidad's Will, ante, p. 894.

■'' Act of Congress of June 6, 1900, Sess. I, 31 U. S. Stats, at Large
Ch. 786, Tit. Ill, sec. 34.

1002 I EXTRATERRITORIAL CASES.

But a later statute also provides

"where a bequest of personal property or money is made to a
female and directed by the will to be paid on her attaining to
full, mature, or to a lawful age, such female shall be entitled to
receive and demand such personal property or money on her arriving
at the age of eighteen years or being married." ■*

This latter section therefore applies here and the daughter
is entitled to receive the bequest, without the intervention
of the guardian, as soon as she attains the age of eighteen.

It is accordingly ordered that the cause be referred to the
Commissioner to take proof as to the daughter's age and
that, if it is found that she has attained the age of eighteen,
the Clerk deliver to her one-half of the securities belonging
to the estate and the other half to the widow, less any lawful
charges.

IN THE UNITED STATES COURT FOR CHINA.

Mercantile Bank of India, Ltd., Plaintiff, v. Caravel &
Co., Inc., Defendant.

[Cause No. 888; filed June 10, 1920.]

SYLLABUS.
(By the Court.)

AGENCY: OSTENSIBLE AUTHORITY. A subordinate employee in a local
office in charge of another, neither of whom has actual author-
ity to negotiate an exchange contract, derives no ostensible
authority therefor from the mere fact of occupying such office
with his superior.

Messrs. White-Cooper, Master & Harris, by Mr. Harris,
for plaintiff.

Messrs. Fleming, Davies & Bryan, by Mr. Bryan, for
defendant.

LOBINGIER, J.:

The amended petition in this cause alleges that

"On the 29th day of September, 1919, the defendants entered into
a contract with the plaintiff (a copy whereof is hereunto annexed)

^ Act of Congress, March 3, 1901, sess, II, 31 U. S. Stats, at Largo,
Ch. 854, sec. 393.

BANK OF INDIA V. CARAVEL & CO., JUNE 10, 1920. 1003

for the purchase by the defendants from the plaintiff of the equiv-
alent in gold dollars of Tls. 18,000 — at exchange 133| September
delivery."

It is further alleged that "an order to fix the exchange
was given to" an exchange broker by "defendant's manager
on the instructions of Mr. Meyersohn, the defendant's di-
rector." This entire averme-nt is denied in the amended
answer and the sole question is whether defendant entered
into such a contract as is here alleged.

There is considerable controversy as to the status and
authority of the party who is designated in the above ex-
cerpt as "the defendant's director." His name appears on
defendant's letter head (Ex. 1) tho not with any title. He
left here on October 4 and defendant endeavored to have
his deposition taken in Yokohama but before the inter-
rogatories reached there Meyersohn had left for New York
and plaintiff objected to a continuance for taking the de-
position at that place. His successor with defendant here
testifies that Meyersohn, like himself, was "in charge" of
the local office but that the contract of employment of each
contained the limitation

"that he vi'ill not consummate any sale or deal without first receiving
the confirmation of"

the company and that such is the invariable practice in all
transactions.

Other portions of plaintiff's evidence, however, render the
question here not so much one as to the authority of Meyer-
sohn as the capacity in which he acted during the ne-
gotiations which gave rise to this proceeding. For the
details of the transaction plaintiff relies mainly on the
testimony of the one designated in the petition as "de-
fendant's manager" but who, according to its present rep-
resentative, "was no more than a clerk when Meyersohn
was here." This employee states that he had no power of
attorney and that any contracts negotiated by him were
"subject to Meyersohn's approval." As regards the begin-
ning of this particular transaction he testifies:

"Q. What was the first thing Mr. Meyersohn said to you with
regard to exchange?

A. To ascertain the quotations from the banks for demand draft
on New York for $34,000 gold * * *.

1004 I EXTRATERRITORIAL CASES.

Q. Did you obtain any quotations?

A. I telephoned to the Hongkong Bank and they quoted 1302 .

Q. Did you report that to Mr. Meyersohn?

A. I reported that to him.

Q. What did he say to that?

A. He said that if you would get 131 he would close for 18,000
taels."

Thereupon, the employee states, he telephoned the broker
that

*'our firm would like to close for 18,000 taels at the rate of 131 for
demand draft New York."

On cross-examination he testified

"Q. When you showed Mr. Meyersohn this exchange contract, he
asked you Avhy the name of Caravel & Co., was mentioned, didn't he?

A. Not at once. After a little conversation I had with him he
asked me why was the name of Caravel & Co., mentioned and I
told him — I said 'Isn't it for the firm?' and he said 'No, Caravel &
Co. have nothing to do with it' and I said 'That is very easy, you
can ask the Bank to change it and issue the demand draft in what-
ever name you want.'

Q. He said it was his own contract and not the contract of Caravel
& Co.

A. It appears, eventually."

It will be seen from the foregoing that there is no precise
testimony of any specific instructions by Meyersohn to pur-
chase a draft for the defendant as alleged in the amended
petition. The employee to whom the instructions were given
inferred that the purchase was for defendant but unfor-
tunately for plaintiff he (its principal witness) does not
claim any specific instructions to that effect.

In argument the case for plaintiff was made to rest
not so much on the authority of Meyersohn nor upon the
instructions which he gave as upon the fact that the order
was placed with the broker by an employee of defendant
who occupied the front office with Meyersohn. This, it is
claimed, constituted such a "holding out" of authority as
to bind the defendant even tho the employee was not
actually authorized to place the order. Plaintiff, however,
cites no decisions, either English or American, on this point
nor have we been able to find any which support his

BANK OF INDIA v. CARAVEL & CO., JUNE 10, 1920. 1005

contention to that extent. To the same contention in a
somewhat similar case it was observed :

"There is no claim that the power was expressly given, but the
argument is that the power arose out of the nature of the agency,
and that plaintiff had a right to assume that the power existed.
It is to be remembered that persons dealing with an assumed agent
are bound, at their peril, to ascertain, not only the fact of the
agency, but the extent of the agent's authority. They are put upon
their guard by the very fact that they are dealing with an agent,
and must, at their peril, see to it that the act done by him is within
his power. It is their right and duty to ascertain the extent of
his power, and to determine whether his act comes within the power
and is such as to bind his principal. * * * It is argued, how-
ever, that Harte would be presumed to have the power which he
exercised for the reason that he was agent of a corporation, and
corporations act thru agents. Under the same circumstances and
in like business, an individual would necessarily act thru agents;
and we do not understand that the presumptions are any different
in the case of a corporation than an individual.' '

The foregoing appears to state the law correctly for any
Anglo-American jurisdiction. A principal may be liable,
indeed, for acts performed under the agent's ostensible
authority ; but that is usually where similar acts have been
permitted with the principal's knowledge.- In the case at
bar the employee who placed the order states that he never
knew of any other exchange contracts on the part of de-
fendant while the present manager says that it has never
been the policy of defendant to deal in exchange at all.
There was consequently no "holding out" on that ground
and we have been unable, we repeat, to find judicial sup-
port for it in the mere fact that the employee who placed
the order occupied the same room with the one who was in
charge of the local office.

The evidence, therefore, leads inevitably to these con-
clusions: (1) Meyersohn was without authority, except as
confirmed, to negotiate an exchange contract on defendant's

'Merchants National Bank v. Nichols, 223 111. 41, 79 N. E. 38,
7 L. R. A. (N. S.) 753.

' Corpus Juris, II, 463 ; Jefferson Hotel Company v. Brumbaugh,
168 Fed. 867; Burton v. Burley, 13 Fed. 811.

1006 I EXTRATERRITORIAL CASES.

behalf; (2) there is no specific evidence that he attempted
to exercise such authority; and (3) any instructions which
he gave regarding the purchase in question w^ere on behalf
of, and bound only, himself.

It follows that plaintiff's averment that the "defendant
entered into a contract with plaintiff" remains unproved
and it is accordingly considered and adjudged that plaintiff
take nothing by its complaint and that defendant recover
its costs.

IN THE UNITED STATES COURT FOR CHINA.

Lung Chu, Plaintiff, v. Sino-Americo, Trading Corpora-
tion, Defendant.

[Cause No. 1001; filed June 25, 1920.]

SYLLABUS.

(By the Court.)

1. CONTRACTS : FORMATION : ACCEPTANCE is necessary in order to

turn an offer into a contract and such acceptance must be com-
municated to the proposer.

2. Id. : Acceptance must be absolute and in the identical terms of

the offer.

3. Id.: Offer. A request for terms differing from the offer amounts

to a counter proposal and rejection of the former.

4. Id. : Id. : Revocation is open to the proposer up to the moment of

acceptance.

5. Id. : Execution of an instrument without reading it will not ex-

cuse a party from the terms thereof in the absence of fraud.

Messrs. Kent & Mounsey, by Mr. Kent, for plaintiff.
Edgar Pierce Allen, Esq., for defendant.

LOBINGIER, J.:

On June 7, 1919, plaintiff executed an instrument (Ex-
hibit 2) reciting that:

"The undersigned orders thru the Sino-Americo Trading Cor-
poration the undermentioned goods subject to approval of manu-
facturer."

A description of the goods in question follows the fore-
going clause and then the plaintiff's ''chop" or signature

LUNG CHU V. TRADING CORP., JUNE 25, 1920. 1007

in Chinese. Another instrument bearing the same date
but executed by defendant's manager, according to his tes-
timony, two days later, contained the same descriptions and
purported to be a "contract for the sale and purchase of
the undermentioned goods." It was later sent in duplicate
to the plaintiff and retained but never executed by it.
From the evidence it appears that the last named instru-
ment was signed by defendant's manager at the request of
the manufacturer's agent, then in Tientsin, who had so-
licited orders for these goods and subsequently cabled them
to his principal in New York, where the order was rejected
by a cable sent June 12, reading:

"Impossible to close business other than original. Telegraph quota-
tions. Please explain extraordinary advance."

No money was paid by plaintiff on the transaction but it
seeks to hold defendant for damages in the sum of Tls.
6,233.75 "suffered by reason of loss of market."

In its reply plaintiff alleges :

"The document alleged by the defendant corporation to constitute
the contract in this matter (Exhibit No. 1 of the answer) was re-
garded by the plaintiff firm as an order or statement of their require-
ments, which was accepted and reduced to a contract by the docu-
ment referred to in paragraph 3 of the complaint."

The documents here mentioned are, respectively, those
already referred to as Exhibit 2 and Exhibit 1. In other
words (and such was counsel's contention arguendo) , Ex-
hibit 2 "was regarded by the plaintiff firm as an order or
statement of their requirements which was accepted and
reduced to a contract." But Exhibit 2, as we have seen,
was an order "subject to approval of manufacturer" and
if that order was accepted by defendant so as to create a
contract it must have been accepted in the precise terms
in which it was made. As stated by an eminent au-
thority ^

"Acceptance therefore must be absolute. A proposed to sell a prop-
erty to X; X accepted 'subject to the terms of a contract being

'Anson Contracts (8th Ed.) 48. Cf. Steiner v. Frazar & Co.,
ante, p. 249.

IQQg I EXTRATERRITORIAL CASES.

arranged' between his solicitor and A's. Here it was held that there
was no agreement, for the acceptance was not final but subject
to a discussion to take place between the agents of the parties." '

In other words defendant could accept the order (offer)
referred to only "subject to approval of manufacturer" and
if Exhibit 1, the instrument subsequently signed by defend-
ant, was an acceptance at all it was an acceptance with
that condition. It is not material whether plaintiff's atten-
tion was called to that condition or whether it failed to
read the instrument before signing it. The rule is well
settled that, in the absence of fraud (and nothing of that is
claimed here), a party who signs an instrument "is not
permitted to show that he did not know its terms." ^

II.

On the other hand if Exhibit 1 was not an acceptance, as
contended by plaintiff, it could only have resulted in a
contractual relation as an offer by defendant, and if it
were such it required acceptance by plaintiff in order to
create a contract.^ It is true that an acceptance like an
offer may be effected by word, act or conduct "^ but one of
these must be shown before a contract may result. Was
there an acceptance, by plaintiff, in such form of the terms
and conditions contained in Exhibit 1? That instrument,
with its duplicate, was, as we have seen, sent plaintiff by
defendant and retained by the former but was never signed
by it and there is no claim of any express acceptance. On
the contrary defendant's manager testifies, and it is not
contradicted, that plaintiff insisted that the date when the
goods would arrive should be inserted, the only provision
there being "shipment at option manufacturers; prompt
shipment." A request for such insertion not only shows

-" Honeyman v. Marrayat, 6 H. L. C. 112. Cf. Ware v. Allen, 128
U. S. 590, 32 L. ed. 563.

»9 Cyc. 260. Compare 388-390; Meier v. Arkell & Douglas,
ante, p. 904.

' Anson, Contracts (8th ed.) 32.

°Id. 17.

LUNG CHU V. TRADING CORP., JUNE 25, 1920. 1009

nonacceptance but amounts to a counter-offer the effect of
which is to reject the original one.''

"Where a person offers to do a definite thing and another accepts
conditionally or introduces a new term into the acceptance his answer
is either a mere expression of willingness to treat or it is a counter
proposal, and in neither case is there an agreement".'

There is testimony of a custom in Tientsin that when a
foreign merchant deals with Chinese he first negotiates
verbally and after reaching an agreement signs duplicate
instruments evidencing the same and sends them for sig-
nature to the Chinese dealer, later sending his own shroff
for one of the executed copies. Had that custom been
followed in the case at bar there would have been no occa-
sion for differences between the parties. But, as we have
seen, the prior negotiations here, represented by Exhibit 2,
did not result in an agreement and the subsequently pre-
pared instruments were not executed by the Chinese dealer.
Moreover there is evidence produced by plaintiff that de-
fendant did send its market shroff after the duplicate in-
struments were in plaintiff's hands and that the latter re-
fused to surrender them. True the reason given was that
the shroff stated defendant wanted to change them. But
whatever the reason we see nothing in this incident which
amounted to an acceptance. To us it seems rather to sup-
port the contention of defendant's counsel that his client
was really exercising its right of revocation which con-
tinues up to the moment of acceptance."* And not only
must plaintiff show an acceptance in order to recover but
such acceptance must be communicated to defendant.^

There is also considerable testimony and some conflict as
to the time when the duplicate instruments (Exhibits 1 and
A) were forwarded to plaintiff. But if these instruments
were never accepted by the plaintiff the date when it re-
ceived them is, of course, immaterial.

Md. 33, 49; Eliason v. Henshaw, 4 Wheat. (U. S.) 225, 4 L. ed.
556.

'9 Cyc. 267.

'Anson, Contracts (8th ed.) 34.

•Id. 23.

14008 O. W. 64

IQXQ I EXTRATERRITORIAL CASES.

And we may here apply the test suggested by plaintiff's
counsel, i. e., whether plaintiff itself was ever bound by this
transaction; and this is to be determined not by what de-
fendant's manager thought but by invoking the legal re-
quirements. Had the situation of the parties been reversed
and had defendant sought to enforce liability on the part of
the plaintiff, the latter could very well have said, "I have
never accepted your offer nor signed your proposed con-
tracts and I am not in any way liable thereon." We accept
counsel's contention that there must be mutuality in such
cases — that unless both parties are liable neither is — and
that if defendant could not have held plaintiff under the
facts disclosed in this case plaintiff is equally without the
right to hold defendant.

To sum up : (1) plaintiff cannot recover on a contract re-
sulting from Exhibit 2 because the acceptance there was
conditional only and the conditions have never been ful-
filled. (2) Nor did any contract result from Exhibits 1 and
A for the reason that they were never executed by plaintiff
and there is not sufficient evidence of their acceptance
otherwise than by execution. We' have no alternative,
therefore, but to find for the defendant and it is accordingly
considered and adjudged that plaintiff take nothing by its
complaint and that defendant recover its costs.

On the same day the following order was made by the same
Judge in Hsieh Po-Hsiang v. Shippers' Commercial Corporation:

A demurrer is here interposed to a petition seeking recovery on a
series of instruments which were executed by the defendant, addressed
to plaintiff's alleged representative, relating to the purchase of "strap-
ping hoop iron" and reciting as follows:

"we hereby confirm transaction consummated with you to day cov-
ering your purchase of the following, subject to the conditions stated
on the back hereof and acceptance at Seattle office."

It appears from a copy of a letter from defendant's Tientsin man-
ager attached as an exhibit to the petition, and forming a part there-
of, that

"on December 9th our Shanghai office received a cablegram from
our head office advising that they should not accept these contracts."

This letter appears to have been written on March 12, in reply
to one of the previous day from plaintiff and the former letter
further recites that

HSIEH FO-HSIANG V. SHIPPERS' CORP., JUNE 25, 1920. 1011

"the contents of this cablegram were made known to Mr. Murray
and as at that time you were the head of the Compradore Depart-
ment of J. M. Murray and Company, we considered the notification
of the manager of said company sufficient notice of the non-acceptance
of these contracts."

The instruments first above referred to were executed, with one
exception, on November 19, and it would appear from the whole
petition including the exhibits that as soon as these instruments had
reached the Seattle office by mail it sent the cable referred to.

Plaintiff's counsel contends that by failure to notify plaintiff
earlier, of the non-acceptance, defendant actually effected an accept-
ance which consummated a contract in each instance and that the
clause requiring "acceptance at Seattle office" was thereby nullified.
But the instruments of November 19 purport to be nothing more
than "confirmations," i. e., acceptances of offers previously made
and in order that a contract may result the acceptance must be
unconditional.^

As each one of these instruments was "subject to * * * ac-
ceptance at Seattle office" it would seem to follow that no agreement
could result at least until such acceptance was obtained. We do
not think it can be successfully contended that the instruments them-
selves are offers. They do not purport to be such in any sense, but
if they were the rights of the parties would hardly be changed; for
if plaintiff accepted them as offers he v/ould be obliged to do so
subject to the identical conditions ' and the result would be the same.

The authority' cited by plaintiff's counsel to the effect that un-
reasonable delay on the part of a purchaser in returning goods might
imply an acceptance, relates to an executed contract and is not in
point where the question is whether a contract was ever made.
Another authority * to the effect that a principal's delay of twelve
days in passing on an order after submission to him constituted an
acceptance, appears not only to be inconsistent with the authorities
first above cited but also not in point here since it does not appear
that the Seattle office delayed answer unduly after receiving the
order in question.

On the whole the facts recited in the petition with its exhibits fail
to disclose a completed contract betv/een the parties and the demur-
rer is accordingly

SUSTAINED.

^ Lung Chu V. Sino-Americo Trading Corp., ante, p. 1007.
"Id.

'Benjamin on Sales (7th ed.), sec. 162.

^Bluegrass Cordage Co. v. Luthy, 98 Ky. 583, 33 S. W. 835, 17
Ky. L. Rep. 1126.

INDEX.

ACTIONS. See also Venue.

1. Adequate remedy at law not apparent from pleadings,

282.

2. Proceeding to enforce judgment is one at law and can

not be joined with one to recover on an independent

claim, 244.
S. hi rem; consular jurisdiction of, 9, 12, 25.
ADMINISTRATION OF ESTATES. See COURTS, 2.
1. Jurisdiction of Consular Courts, 11.
2. is judicial, 295.

3. General administrative duties exercised by consuls else-

where may still be exercised in China if consistent with
judicial powers, 295.

4. Judge of United States Court must exercise supervisory

control over consular administration, 295.

5. Proceedings in Consular Court regarding estate subse-

quently found to be beyond its jurisdiction may be
adopted by United States Court and treated as having
been conducted under its direction, 722, 724.

6. Estate closed by Consular Court reopened by order of

United States Court so as to include "additional and
heretofore undiscovered property," 722, note.

7. Appointment of administrator not avoided by subsequent

discovery of will but the letters will usually be re-
voked though with confirmation of administrator's acts
thereunder regularly performed, 913.

8. Personal representative's authority limited to jurisdiction

wherein letters issued, 109.

9. Where will failed to name executor, surviving spouse,

who was also father of beneficiary, appointed admin-
istrator cum testamento annexo, 626.

10. Ordinary letters will issue where the instrument offered

for probate is not admitted and the estate will be
administered as intestate, 844.

11. Time allowed heir to determine whether to continue ad-

ministration in China or take out ancillary letters at
locus rei sitae, 539.

12. Claims should be verified, 596.

1013

1014 INDEX.

ADMINISTRATION OF ESTATi:S— Continued.

13. After rejection by personal representative, evidence other

than claimant's required, 598.

14. Administrator's fee of 7% of total assets considered suf-

ficient, 698.

ADMINISTRATORS. See ADMINISTRATION OF ESTATES.
ADOPTION.

1. United States Court for China may hear and determine

petition by American citizens for adoption of minor
child, 443.

2. Procedure determined by Acts of Congress, Id.

3. Consent of parent who has abandoned child unnecessary,

444.

4. Consent of natural parents dispenses w^ith need of ap-

pointing guardian ad litem, 754.

5. Statutory requisites found to have been complied with,

444.

6. The adopted one need not be of American descent or

citizenship, 754-756.
ADULTERY. See CRIMES, 46. DIVORCE, 8, 19, 20. Evidence, 46-49.

AGE.

While the normal age of majority under Federal law is

21 years for both sexes, a female beneficiary under a

will is entitled to receive her bequest at 18, 1002.

AGENCY. See Contracts, 17, 60-72, 79-82. Crimes, 83. Judgments,

2. Process, 1, 2.

1. An agent can not generally bind his principal to a longer

lease or to other obligations than as expressly author-
ized, 346.

2. Ratification by agent of an unauthorized act requires ex-

press authority, Id.

3. A cable company is the agent of the sender to deliver

only the actual message, 587.

4. A subordinate employee in a local office in charge of an-

other without actual authority to negotiate an exchange
contract, derives no ostensible authority therefor from
the mere fact of occupying such office with his superior,
1002, 1005.

A06REGATIO MENTIUM, 580.

ALIMONY. See DIVORCE, 1, 10, 13, 14.

AMENDMENT. See Pleading, 14.

ANNULMENT. See MARRIAGE, 2-5.

APPEAL.

1. A continuation of the original proceeding, 528.

2. Cannot be perfected without filing petition setting forth

reasons as required by Sec. 41 of Court Regulations, 206.

INDEX. 1015

APPEAL — Continued.

3. In United States Court for China, heard ordinarily on

evidence taken below, 530.

4. Trial de novo on, does not necessarily include reception of

new evidence, 528.

5. Such trial, with reception of additional evidence, in cases

appealed from Consular Courts to the United States
Court, is permissible, if at all, only upon strong showing
that "justice will be promoted thereby," 183.

6. Order of United States Court for China denying right

of intervention is a final one and properly reviewed
on appeal, 257.
ARBITRATION AND AWARD.

1. In an extraterritorial Court an agreement to arbitrate is

construed according to the law of defendant's nation-
ality, 203.

2. Such agreement revocable at any time before publica-

tion of award, 203.

3. Notice of intention to revoke need not be given adverse

party; sufficient if given arbitrators, 204.

4. Such notice must be written if submission was, 204.

5. No valid award is rendered by an arbitrator to whom is

submitted the amount due under two contracts and who
refers one of them to a third party and leaves proof
to be taken elsewhere as regards the other, 973-976.
ARREST.

1. Means any form of detention; neither warrant nor phys-

ical force required, 361.

2. Not confined to criminal proceedings, 362.

3. Formal complaint and warrant unnecessary where accused

admits guilt when brought before magistrate, 288.

4. Civil magistrate may commit and detain a naval deserter

before delivering him to naval authorities, 289.
ASSAULT. See CRIMES, 31-34, 73.
ASSIGNMENTS FOR CREDITORS.

Voluntary assignment act of congress of March 3, 1901,

held available in China and cumulative to Bankruptcy

Act, 950.
ATTACHMENT. See DIVORCE, 15. Equitable Assignment.
ATTORNEYS AT LAW.

1. Disbarment proceedings may be instituted by another

than the District Attorney, 834.

2. Misconduct justifying disbarment need not occur in the

course of professional employment nor toward a client,
835, 846.

3. Prior conviction of offense charged, tho criminal, is not

necessary, 836.

1016 INDEX.

ATTORNEYS AT LAW— Continued.

4. Evidence reviewed and found sufficient to show miscon-

duct and deceit justifying disbarment, 846, 865.

5. Deceit may include suppressio veri as well as suggestio

falsi, 861.

6. Neither appeal nor writ of error lies from an order of

disbarment nor will mandamns lie to compel respond-
ent's reinstatement, 867 (note).

AUTOMOBILES. See HIGHWAYS.

BAILMENT. See WAREHOUSEMEN.

BANKRUPTCY. See ASSIGNMENTS FOR CREDITORS.

1. Federal Bankruptcy Act held available and enforcible by

United States Court, 899.

2. A secured creditor may institute bankruptcy proceedings

where his claim exceeds the security, 900.
BILLS OF LADING. See Carriers, 7-9.

BOUGHT AND SOLD NOTES. See NEGOTIABLE INSTRUMENTS.
BROKERS. See CONTRACTS, 57-59.
BURDEN OF PROOF. See EVIDENCE, 12-22.
CANCELLATION.

Distinguished from rescission, 886.
CARRIERS.

1. Must serve all applicants alike, unconditionally, and can

not make acceptance conditional on third party's con-
sent, 606, 610, 618, 619.

2. Exceptions, 606, 607, 618.

3. Burden rests on carrier to prove exceptions, 618.

4. Measure of damages for refusing freight is reimbursement

for actual loss incurred including assured profits from
a pending contract, 611, 612.

5. Applicant need not prove that carrier knew of such con-

tract, 613.

6. Such profits must be charged with any reduction resulting

from shipment of same goods by another carrier, 613.

7. Where a bill of lading makes freight charges "payable

on weight or measurement * * * at carrier's op-
tion," the latter must elect on which to charge and
such election can not be revoked except upon grounds
justifying rescission of contract, 779, 780.

8. A clause in margin reading "rates, weight or measurement

subject to correction" does not authorize such revoca-
tion, 781.
9- Accepting payment on measurement basis constitutes
such an election, 779.
10. Delivery of cargo on wharf sufficient if in consignee's
presence, 88, 91.

INDEX. 1017

CERTIFICATE. See EVIDENCE, 50.
CHARTER PARTY. See CONTRACTS, 34.
CHINESE LAW. See Law, 20, 23.

CITIZENSHIP. See ADOPTION, 1, 6. Evidence, 17.

1. Presumption of, arising from evidence of birthplace con-

tinues until overthrown by proof of subsequent alien-
age, 378.

2. Evidence found insufficient to overcome defendant's claim

of American nationality. Id.

3. Once established continues until change is proved, 281, 670.

4. Evidence of change of, must be clear and convincing, 185.

5. Section 4, Act of 1907, does not in terms provide an ex-

clusive method of retaining citizenship nor penalize, by
loss thereof, the failure to register as therein authorized,
421.

6. Question whether "abroad" as there used applies to res-

idence in extraterritorial jurisdictions, 422.

7. Children tho born abroad, of American father, acquire his

nationality, 424, 702.

8. Native born entitled to certain privileges not available

to naturalized citizens among which is greater latitude
as regards residence abroad, 699, 702.

9. History of expatriation doctrine traced, 705, 709.-

10. Modes of expatriation prescribed by Act of 1907, exclusive,

709, 710.

11. Americans in extraterritorial countries remain "subject

to the jurisdiction * * * of the United States"
to a much greater extent than those in other foreign
countries, 710.

12. Under Chinese Law, 710, 711.

CODICILS. See Wills, 12-16.

COMMISSIONER.

1. Jurisdiction and powers, 10, 11.

2. A part of American judicial machinery in China before

establishment of United States Court, 927, 928.

3. Does not constitute a court but merely assists the court

appointing him, 931.

COMMISSIONS. See Contracts, 58, 65.
COMMON CARRIERS. See CARRIERS.
COMMON LAW. See Law, 2-4.
COMPLAINTS. See Pleading, 15.
CONFESSION. See Judgments, 2.

1018 INDEX.

CONFLICT OF LAWS.

1. Lex fori applied in extraterritorial courts, 203, 227,

2. Foreign law presumed to be same as that of forum, 389.

3. Agreement to arbitrate construed by extraterritorial

courts according to law of defendant's nationality, 203.

4. Validity of mortgage registered at Spanish Consulate in

Shanghai determined by Spanish law, 212 (but see 66,
70, 80).

5. Lex loci rei sitae governs incidents of land, 66, 70, 80.

6. Compensation for buildings erected by the British Gov-

ernment on land expropriated from a subject in Zan-
zibar governed by local Mohammedan law, 66, 73.

CONSPIRACY. See CRIMES, 35-39. Evidence, 34-36.

CONSTITUTIONAL LAW.

1. The Federal Constitution has no force in an extraterri-

torial country, 50, 311, 478.

2. Judgments of American Consular Courts in China are

within the "faith and credit" clause of the Federal
Constitution, 472, 473.

3. Congress cannot constitutionally delegate to a territorial

legislature power to withdraw acts once extended by
Congress over other jurisdictions, 657.

CONSULAR COURTS.

1. In China, 9-11.

2. In Turkey, 12 et seq.

3. Are of limited jurisdiction, 65.

4. But construction should not defeat the purpose of their

creation, 65.

5. Have jurisdiction over crimes committed on high seas, 57.

CONSULS. See Administration of Estates, 1-3, 5, 6.

1. Jurisdictional powers dependent on treaties, 32.

2. Jurisdiction not judicially noticed, 32, 39.

CONTEMPT. See INJUNCTIONS, 5.

CONTRACTS. See EVIDENCE, 18-20, 40. Pleading, 6, 7, 9.
a. Formation.

1. Courts cannot make contracts for parties nor inquire into

wisdom or advisability of their undertakings, 444, 457,
957, 979.

2. Meeting of minds essential, 580.

3. on each provision of contract, 979.

4. Mistaken report of agent, misled by erroneous cable, that

his principal had accepted a certain offer does not effect

a meeting of the minds, 576.

INDEX. 1019

CONTRACTS— Continued.

a. Formation — Continued.

5. Acceptance necessary to turn offer into contract, must

be absolute, in identical terms of offer and communi-
cated to proposer, 253, 1007, 1008, 1011.

6. A request for terms differing from the offer amounts to

a counter proposal and rejection, 1008, 1009.

7. Evidence found to show not one continuous course of

dealing between parties but new and independent con-
tract resulting from counter offer, 505.

8. Revocation by the purchaser is permissible up to the

moment of acceptance, 1009.

9. Evidence of acceptance found insufficient, Id.

10. Evidence found not to show change of position by plain-

tiff after announcement of acceptance and before notice
of mistake, 589.

11. Offer may be accepted by deed as well as by word and

acceptance may be inferred from silence, 504.

12. Failure to read a written instrument before signing is

ordinarily no ground for avoiding its terms; ground
for invoking exceptions not shown, 907-909, 952, 1008.

13. Evidence of fraud in execution of such instrument must

be clear and convincing, 909, 994.

14. Evidence found insufficient to show delivery of letter al-

leged to form part of unilateral contract, 217, 218.

15. One who signs articles of an association will usually be

treated as having contracted with it, 274.

16. Form. A contract is none the less "entered into * * *

by correspondence" because of the transmission by
one party to the other of a blank form which the latter
fails to sign, 955.

17. An agent who fails to disclose his principal's name in

making a contract becomes liable individually thereon.
Id.

18. One who serves another without a definite agreement is

entitled to compensation on quantum, meruit, 254, 842.

19. Employee may recover for time during which he worked

tho he leaves before expiration of employment, 842.

20. Evidence found to show a contract for purchase of shares,

241.

21. Such contract within statute of frauds but memorandum

required thereby need be signed only by the party
against whom enforcement sought, 242.

22. Before partial delivery may replace the memorandum re-

quired by the statute of frauds the contract itself must
be established, 735, 742.

1020 INDEX.

CONTRACTS— Continued.

b. Legality of Object.

23. Wagering, void, 112, 120.

24. Evidence found insufficient to show plaintiff's knowledge

of defendant's intent to make contract a wagering one
and recovery allowed, 234.

25. Money loaned to promote unlawful object not recoverable,

428.
28. Lender's knowledge of unlawful object inferable from
circumstances, 432.

27. Agreement intended to disturb the peace or sovereignty

of a friendly power is unenforcible as against any of
the parties thereto, 641.

28. But money entrusted to an agent by one of said parties

to be paid thereon may be recovered back before pay-
ment, 646.

29. An undertaking whose evident purpose is to stifle compe-

tition will not be enforced, 277.

30. The common law repugnance to contracts in restraint of

trade has been much modified, 766, 767.

31. Limits of time and area no longer the controlling tests;

that of reasonableness applied, 821, 822.

32. Prohibition of entering at any time, anywhere in China,

other similar employment in a business of which em-
ployer has but one plant, is indivisible and unreason-
able; but a prohibition of divulging trade secrets is
separable from the above and enforcible, 827-830.

33. Such a contract when valid may be enforced by injunc-

tion as a method of negative specific performance, 768,
830, 999, 1000.

34. Charter party not avoided by false registration of vessel

nor by its use in transporting coolies from one foreign
port to another, 133.

c. Operation.

35. Evidence found insufficient to show that net earnings

under the contract in suit reached amount authorizing
dividend, 446.

36. A voluntary payment must be applied in accordance with

the debtor's intention, 959.

37. A subsequent agreement upon the same subject as a prior

one, but inconsistent therewith, supersedes it even with-
out express provision, 461.

38. Provision for payment by instalments may be waived by

contractor but such waiver neither binds the contractee
nor constitutes an acceptance of the work, 561.

INDEX. 1021

CONTRACTS — Continued.

d. Interpretation.

39. Rule of contra proferentem applied, 737, 803, 807.

40. A contract to "complete in a satisfactory manner" a tank

for storage of oil is not performed by constructing a
leaky tank, 563.

41. A "guarantee" in a contract for the construction of to-

bacco cutters "that said machines are in good working
condition" construed as limited to time of delivery, 921.

42. A further provision that "this agreement * * * shall

terminate" upon delivery and payment, relieves the
contractor from liability for subsequent occurrences.
Id.

43. Evidence found insufficient to show that said machines

were not in working order at the time of delivery, Id.

e. Performance and Breach.

44. Negligence in performing a contract is not shown where

party complained of acts within its provisions, 910.

45. Evidence found insufficient to show acceptance or wrong-

ful prevention of completion or that defects were due
to improper material, 561.

46. Rescission, as a contractual right distinguished from can-

cellation as an equitable remedy, 886.

47. Doubtful whether right to rescind arises from mere

delivery of goods not specified, 887.

48. Rescission for fraud requires that all its elements be

proven, 994.

49. Showing which fails to establish that the applicant relied

on the alleged misrepi-esentation to his damage is in-
sufficient, 996, 997.
/. Damages.

50. Not every departure from the terms of a contract is

actionable. There may be damnum absque injuria or
injuria sine damno, 468.

51. Only actual or compensatory, recoverable in absence of

malice or gross negligence, 595; cf. 611.

52. Loss of profits constitutes a proper item of damage for

a breach of contract only so far as it could reasonably
have been foreseen by the parties when they made it,
740, 741, 922, 923.

53. Profits from collateral enterprise or subcontract not

usually allowable, 923.

54. Contingent liability for services rendered one of the

parties to a contract by a stranger before the same
is entered into is not a proper item of damage in an
action for breach of said contract, 467, 468.

1022 INDEX.

CONTRACTS— Continued.

/. Damages — Continued.

55. Damagres based on "making up price" adopted by Stock

Exchange, 243.

56. Damages for breach of contract for use of theatre fixed

from booking sheets with deductions for unpaid reser-
vations and profits otherwise earned, 291.

57. Measure of such recovery is difference between "making-

up" and buying price plus brokerage, 234.

58. Where broker acts for both parties and claims commis-

sions from each, recovery will be denied, 233.

59. Advance payments to such agent on the purchase price

may be recovered back in case of non-delivery with
interest at 8'A , 955, 956.

g. Special Forms.

(1) Employment.

60. Instrument set out and considered as contract of employ-

ment, 725-727.

61. Salary mentioned therein found to have been promised

plaintiff for special services and not as director, 730.

62. Phrase "best part of his time and ability" to which

plaintiff was required to devote himself considered to
mean major portion which had not been given, 728, 729.

63. Clause providing that plaintiff "becomes a director" of the

corporation which constitutes the other party to the
contract, is void as against public policy, 730.

64. Allowance of commissions on "your net marine sales"

covers not only first sales to customers obtained by
employee but also subsequent tho unsolicited ones, 219.

65. Plaintiff's services found to have been continuous and his

commissions due until paid, 219.

66. A contract of employment whose duration is not expressly

fixed, is terminable at will of either party, 731, 732.

67. A contract conditioned upon the employee "doing his work

in an efficient and satisfactory way" cannot be ter-
minated by the employer on a ground independent of the
way in which such work was done, 968-972.

68. A notice, which does not purport to take effect at once,

to terminate a contract of employment, will not relieve
an employee, so long as .he continues in the employment
service, from his obligation to perform a subsidiary
contract, 735, 742, 743.

69. After discharge, tho wrongful, employee must seek and

accept other employment and any amount earned or
which might have been earned thereby must be applied
in mitigation of his damages, 805.

INDEX. 1023

CONTRACTS — Continued.

y. Special Forms — Continued.

(1) Employment — Continued.

70. An undertaking to "pay the traveling expenses" of an

employee in returning home is not discharged merely by
reserving passage or offering to provide it within a
limited time ; nor is the employee entitled thereto unless
he actually returns, 806, 807.

71. A partnership employee who has tendered his resignation

cannot complain if his employment is terminated while
such resignation is pending, 511.

72. In an action for wrongful termination of employment

contract, as distinguished from action for salary, the
measure of damages is the amount the employee would
have received thereunder, less any payments on outside
earnings, 976-978.

(2) Guaranty.

73. Language of, considered most strongly against guarantor,

958.

74. Continuing, does not require notice to guarantor of each

item of credit extended, 958.

75. Acceptance and notice are effected where both creditor

and guarantor signed the instrument which embodies
it, 959.

76. Notice of acceptance not necessary where guarantor per-

sonally interested in subject matter, 265.

77. Notice of default necessary unless expressly waived or

the guaranty covers debt already due, 266.

78. Such notice should be given within reasonable time but

failure releases guarantor only so far as he has been
prejudiced, 268.

(3) Partnership.

79. A partner may bind the firm in such contracts only as

are in the ordinary course of the partnership business,
513.

80. A secret agreement with an employee increasing his ad-

vantages at the firm's expense is not in ordinary course.
Id.

81. An instrument not in the firm name and signed by but

one partner binds the firm only when ratified by the
others, 514.

82. Resignation of employee, tho sent to one partner, may be

accepted by another, especially if the latter has been
designated as the firm's "Manager," Id.

(4) Sales.

83. "In the contracts of merchants time is of the essence,"

297, 333.

1024 INDEX.

CONTRACTS — Continued.
(4) Sales — Continued.

84. A contract to ship cargo "during February" is broken

if shipment is not made until March, 297, 333, 980.

85. Such delay found not to have been waived or excused.

302, 339, 982.

86. Nor due to force majeure, 982.

87. The rule of ejusdem generis explained and applied, 303,

337.

88. Place of shipment named in contract is a material require-

ment w^hose non-observance entitles vendee to rescind
and recover back defendant's payments, 768, 771.

89. The vendor of commodities intended for resale must

furnish those of merchantable quality, 506.

90. Whether commodity furnished under a contract complied

with its requirements is a question of law, 746, 747.

91. Substantial, tho not literal, compliance with such re-

quirements exacted, 747.

92. Where part only of a consignment furnished under an

entire contract substantially complies, vendee is not
obliged to accept delivery, 751.

93. Where commodities are purchased for resale, proof of

substantial performance must include a showing that
any variations will not affect marketability, 751.

94. Vendor not entitled to retain advance pajrments without

such a showing, 752.

95. Measure of damages where vendee receives delayed cargo

under protest is difference between highest price ob-
tainable and purchase price with interest and neces-
sary charges, 340.
CONTRIBUTORY NEGLIGENCE.

1. Defined, 559.

2. Bars recovery, 558, 560.

3. In Federal Courts burden is on defendant to prove, but

may appear from plaintiff's evidence, 559, 593.
CONVERSION. See Crimes, 58-61, 65.
CORONER. See Jury, 2.

CORPORATIONS. See CRIMES, 4-6. JUDGMENTS, 2. LAW, 11. PRO-
CESS, 1, 2.

1. Act of Congress of Mai'ch 2, 1903, providing for incor-

poration held available in China, 655.

2. Filing of articles of incorporation with Clerk of United

States Court and Legation held sufficient, 662.

3. But such Clerk is required to file and record only articles

which comply with the law and cannot be compelled by
tnandamtis to accept others, 665.

4. Proposed articles found insufficient, 664, 665.

INDEX. 1025

CORPORATIONS — Continued.

5. Requirements in act of Congress of June 6, 1900, as to the

filing of copies of charters by foreign corporations may
be invoked in China by the American government alone,
760.

6. Whether such requirements are "suitable" and "neces-

sary" in China not decided, Id.

7. It is against public policy for a corporation to enter into

a contract with an individual to make him director
thereof, 730.
COSTS.

1. Distinguished from fees, 891.

2. In the absence of provisions in Court Regulations, Amer-

ican Courts in China may resort to Revised Statutes
for authority to tax, 892.

3. Costs for depositions taken under such authority are

taxable only vi^hen admitted in evidence, Id.

4. No authority for remitting costs or fees to a foreign

plaintiff tho suing in forma pauperis, 890.
COUNTER-CLAIM. See SeT-OFF.
COUNTERFEITING. See CRIMES, 40.

Defined and distinguished, 739.
COURT COMMISSIONER. See COMMISSIONER.
COURT REGULATIONS.

1. By the commissioner, 8, 9.

2. Force and effect, 169-173, 222, 868.

3. British, in Turkey, 12.
COURTS. See JUDGMENTS.

I.American in China; jurisdiction, 9-11,

2. of estates, 136.

3. not dependent on residence of parties, 603, 617.

4. never confined strictly to China's territorial limits,

398.
5. extends to offences committed on American ships "on

the high seas," 40, 57, 401, 915.

6. Consular Courts. Jurisdiction of American Consular

Courts in China has always been concurrent only, 875.

7. While the act of Congress of March 2, 1909, was in force

the only functionary authorized to preside over the
Shanghai Consular Court was a "Vice Consul General"
by the abolition of which office the jurisdiction of said
court lapsed and merged with that of the United States
Court, 877, 878.

8. Whether or not the subsequent act purporting to vest

"judicial authority" in another officer was effective to
undo such merger and recall such lapsed jurisdiction,
it was concurrent only, 879-884.

14008 O. W. 65

1026 INDEX.

COXJBIS — Continued.

9. American Consular Courts in China are courts of record

and their judgments are enforcible in New York at
any time within twenty years, 469, 475.

10. Such judgments are within the "faith and credit" clause

of the Federal Constitution, 472, 473.

11. The Judge of such a Court has power to refer the cause

pending therein to a single referee and to render judg-
ment on his report, 476, 477.

12. Judgment of International Mixed Court, set out, 236-7.

13. Such court is without jurisdiction to annul confirmation

of deed by superior Chinese official, 238.

14. U. S. Court for China has jurisdiction in divorce cases,

369-372, 483.

15. Also in proceedings in rem regardless of defendant's res-

idence or nationality, 484.

16. Also to annul marriage contract on grounds justifying

such relief in case of other contracts, 325.

17. Also vested with certain authority regarding estates of

American seamen dying abroad, previously exercised by
Federal Courts in United States, 717.

18. Criminal jurisdiction of United States Court for China is

dual, being derived in part from treaties and in part
from statutes penalizing offences committed outside of
China, 403.
CRIMES.

a. In General.

1. Distinction between principals and accessories abolished,

415, 962, 963.

2. But classification of principals into first and second de-

grees retained, 416.

3. Aiding and abetting which renders one responsible for

commission of crime need not be indispensable, 963.

4. Corporations are subject to criminal liability; evolution

of such liability traced, 984-987.

5. Ignorance of the directors is no excuse, 988, 989.

6. Fine is the only penalty for such an offender and it

should be substantial where the offence is also punish-
able by imprisonment, 988.

7. Juvenile offenders, not to be treated in same way as

adults, 688.

8. Congressional Juvenile Court law held available and of-

fender given indeterminate sentence thereunder, 689,
690.

9. Self-defense; credit for, 680.

10. Force used in self-defense is excusable only so far as

reasonably necessary, 575.

INDEX. 1027

CRIMES — Continued.

a. In General — Continued.

11. Burden (not met here) is on the accused to prove self-

defense and reasonable precautions, including retreat if
practicable, to prevent attack, Id.

12. Drunkenness affords no legal excuse for crime but may be

considered in fixing penalty, 548, 549 (note).

13. Commission of crime under influence of drugs not excused

though classified as of lower degree, 417, 418.

14. Plea of guilty not an extenuating circumstance, 517.

15. Reasonable doubt defined, 963.

16. Rule of, applied, 555, 963 and note.
h. Punishment.

17. Treaty provisions, 1-3.

18. Jurisdiction to punish includes power to make punish-

ment effective, 399.

19. Penalties fixed by act of Congress held subject to dis-

cretionary application by American Courts in China,
285.

20. Should be preventive and not vindictive, 306.

21. Other charges against accused may be considered in

fixing, 306.

22. Minimum not ordinarily imposed for second offence of

same character, 307.

23. Imprisonment for libel imposed on second offender, 495.

24. Maximum penalty imposed upon second offender but re-

duction allowed in case of another who had pleaded
guilty, 479.

25. Penalty imposed with application of two extenuating

circumstances, 418.

26. Maximum, ordinarily imposed where there are several

aggravating, and no extenuating circumstances, 517.
Cf. 520.

27. Inadequacy of, for opium traffic, 522, 523, 524, 903.

28. Carrying concealed iveapons punished by fine where ac-

cused had already been sentenced to imprisonment for
assault in connection with the same affair, 576.

29. Where the prosecution is under the common law and no

penalty is prescribed discretionary punishment may be
imposed, 326.

30. A recommendation of clemency by the prosecutor because

the accused has turned "state's evidence" will ordi-
narily be adopted, 787.

c. Specific Offenses.

(1) Assault.

31. Consists of two grades, the more serious of which can be

committed only with "intent to do bodily harm," 788,
790.

1028 INDEX.

CRIMES — Continued.

(1) Assault — Continued.

32. Merely pointing an unloaded pistol at another is a simple

assault but not one with a "dangerous weapon," 130.

33. Display of firearm "in a menacing manner" constitutes,

though neither held horizontally nor actually pointed
at another nor really dangerous — provided latter be-
lieved that it was, 621.

34. While the use of insulting or opprobrious words will not

justify an assault they may be considered in mitigation
of the penalty, 915, 916.

(2) Conspiracy.

35. Conspirators need have no previous acquaintance with nor

knowledge of exact part performed by each other, 799,
SOO.

36. Nor need more than one of them commit an overt act, 800.

37. Nor need the conspiracy succeed nor be shown possible of

consummation, 903.

38. The penalty may be more severe than for the crime to

commit which conspiracy was formed. Id.

39. Evidence found sufficient to convict, Id.

(3) Counterfeiting.

40. In prosecution for uttering forged or counterfeit currency,

knowledge of its character and criminal intent must
be proved independently of act of uttering, 556.

(4) Defamation. See also title Defamation,

41. Libel defined, 486.

42. Malice defined, 489.

43. A publication charging attorneys with receiving fees from

both parties to a cause and being reprimanded by the
court is libelous per se, 486.

44. Such charge may be justified only by showing that it is

true and published with good motives and for justifiable
ends, 487.

45. Burden rests upon defendant to prove justification and

showing found insufficient, 494, 495.

46. Evidence aliunde is admissible where publication is ambig-

uous to show what parties were intended, 486.

47. Slander not a crime at common law, 735.

48. Under act of Congress extended to China a false imputa-

tion against female chastity is penalized, Id.

49. It is not a sufficient justification for one to repeat or

circulate such a charge that he heard it from another,
734.

INDEX. 1029

CRIMES — Continued.

(5) Desertion.

50. From Navy an offense at common law and under naval

regulations, 287, 289.

(6) Disorderly Houses.

51. Keeping of, punishable as a nuisance under common

law, 326.

52. Acts committed by frequenters thereof, though outside,

may be considered in determining character of such
house, 329.

53. Punishment is not prevented because keeper of such

house is also punishable for selling liquors without
license, 330.

(7) Embezzlement.

54. Defined, 683.

55. Special acts of Congress defining and penalizing applied,

199.

56. Legation clerk to whom government money is entrusted

by official in charge of legation, is latter's "agent" or
"servant" within meaning of said acts, 198.

57. Essence of, more than of most crimes, is felonious in-

tent, 684.

58. Conversion an essential ingredient of, 375, 382, 391, 683.

59. But is not effected merely by selling or attempting to sell,

tho at reduced price, goods held by bailee for sale,
372, 374.

60. Secreting with intent to convert is a distinct offense and

requires proof of such intent, 375, 376.

61. Neither conversion nor felonious concealment is effected

by a mortgagee by deposit of title deeds who merely
exercises his right of repledge, 391, 392.

62. Such concealment must be one "whereby the estate or

right" of another "shall or may be defeated, injured or
altered," 392.

63. Secrecy and concealment are usual accompaniments of,

and their absence tends to raise presumption of in-
nocence, 685.

64. Using employer's funds, which he was authorized to ex-

pend for company purposes, in making a journey to
the home office, does not constitute conversion, 686.

65. Evidence of conversion found sufficient, 198.

66. Penalty, 549 (note) .

(8) Escape.

67. Physical restraint not necessary to commission of, nor

is locality an ingredient, 451, 454.

1030 INDEX.

CRIMES — Continued.

(8) Escape — Continued.

68. Otficer's custody continues until prisoner is delivered to

other proper authority and relation cannot be changed
by collusive agreement, 456.

69. Maximum penalty imposed on habitual offender, 457.

70. U. S. Court for China has jurisdiction to punish for the

crime of aiding a prisoner to escape, committed on a
government vessel on the high seas, 395.

71. Such offence is one of extreme gravity since it frustrates

the administration of justice, 409.

72. Commission of such offence found established by defend-

ant's own statement; penalty accordingly, 411, 412.

73. Evidence found sufficient to show that accused aided es-

cape of fellow prisoner but that assault on prison guard
was to effect his own escape, 284.

(9) False Pretenses.

74. Evidence found insufficient to establish, 394.

75. Question of joinder with embezzlement not decided, Id.

76. Obtaining property by, an offence under common law,

123.

77. Also by statutes in force over Americans in China, 126.

78. Must include false representation as to some existing or

preexisting fact, 127.

79. Information charging, held insufficient, 128.

80. Penalty, 688 (note).

(10) Forgery.

81. Acts of Congress penalizing, applied, 305.

(11) Gambling.

82. Act of Congress of March 3, 1901, prohibiting keeping

and use of gambling devices, applied, 210, 247.

83. Agent or servant of owner subject to provisions thereof

and defendant found to be such, 209, 210.

84. Actual operation of such devices unnecessary, 248.

(12) Homicide.

85. Manslaughter defined and found to have been committed

but with extenuating circumstances, 679, 680.

86. Evidence reviewed and found sufficient to convict of

involuntary manslaughter but not of murder, 155, 167.

87. Evidence found insufficient to show criminal intent or

carelessness constituting manslaughter, 279.

(13) Larceny.

88. Where defendant's abstraction of a revolver was an in-

cident of his escape from prison for which he had
already been sentenced, moderate punishment was im-
posed, 480.

INDEX. 1031

CRIMES — Continued.

(13) Larceny — Continued.

89. Indemnity for stolen property adjudged of one convicted

of larceny, 630, 631.

90. Penalty, 688 (note).

(14) Liquor Traffic.

91. Unauthorized sale of intoxicating liquors by Americans

in China is a crime, 316.

(15) Misprision.

92. Information found not to charge misprision of defend-

ant's own felony, 408.

(16) Perjury.

93. A charge that the accused swore that "a certain pass-

port was issued in his name," etc., is not supported by
evidence that he merely delivered an altered passport
to an official without a statement as to the name in
which it was issued nor for whom, 788.

(17) Robbery.

94. Actual violence not necessary, 519.

95. Evidence of "putting in fear" found sufficient, Id.

96. Evidence found to show defendant's guilt as principal in

second degree, 415, 416.

97. Commission of, found contributed to by all four of the

accused, 962.

(18) Vagrancy.

98. Defined and discussed, 190, 194.

99. Information charging, held sufficient, 189.

100. Evidence found not to establish, 194.

101. Bilibid Prison held to meet requirements of vagrancy act

as to place of confinement, 543.

CROSS-ACTIONS.

In Consular Courts, 25, 27, 31 (note).
CUSTOM.

1. Must be general, 841.

2. May explain, though it cannot nullify, the provisions of a

contract, 781.

3. Nor override positive law, 229, 230, 781, 841.

4. Must be established by affirmative proof, 229, 230.

5. Of warehousemen, enforced, 990.

DAMAGES. See Carriers, 4-6. Contracts, 50-59, 95. Reforma-
tion, 4.

DECLARATIONS. See EVIDENCE, 35-38, 41.

1032 INDEX.

DEFAMATION. See CRIMES, 41-49. PLEADING, 5.

1. A fair and correct report of a judicial proceeding is

qualifiedly privileged matter which may ordinarily be
published without liability except for malice, 354.

2. Application by police officer to competent tribunal re-

sulting in issuance of writ in connection with pending
criminal inquiry is a "judicial proceeding" within mean-
ing of said rule, 355.

3. Newspaper statement to the effect that a warrant had

issued against plaintiff and that he was "arrested" and
"in custody" found not to "exceed the privilege," 361.

4. Mere overstatement of time of arrest not actionable unless

shown to have caused the damage complained of, 364.

DEFINITIONS. See WORDS and Phrases.
DEPOSIT. See Mortgages, 3, 4.
DEPOSITIONS. See COSTS, 3. EVIDENCE, 53.
DESERTION. See CRIMES, 50.
DISCONTINUANCE. See PROCEDURE, 3, 4.
DISORDERLY HOUSES. See CRIMES, 51-53.
DISTRIBUTION. See Administration of Estates, 6.
DISTRICT ATTORNEY.

1. Should appear in "all civil actions in which United States

are concerned," 419.

2. May call to his assistance in special cases another member

of the Bar who may act temporarily without commission
or oath, 832, 833.

3. Has no exclusive right to institute disbarment proceed-

ings, 834.

DIVISIBILITY. See CONTRACTS, 32.
DIVORCE. See COURTS, 14-16. WiLLS, 28.

1. A suit for divorce without alimony or other relief is a

proceeding in rem, 480.

2. Grounds of, in U. S. Court for China, are prescribed by

act of Congress of March 3, 1901, but effect of decree
is fixed by court regulations, sec. 51, 918.

3. Drunkenness is a ground for absolute divorce, 917, 919.

4. Desertion, ground for, 371.

5. Desertion is not shown by mere separation as the result

of agreement, 934.

6. Residential requirement met by petitioner, 546. Cf. 926.

7. Return of money in respondent's possession but belonging^

to petitioner required by decree, 547.

INDEX. 1033

DIVORCE — Continued.

8. Corroboration of plaintiff's testimony as to admissions of

adultery by defendant is not indispensable where latter,
knowing the charge against him, fails to traverse it,
837, 839.

9. Custody of the children can not be controlled by stipula-

tion between the parties; the interests of the children
are the prime consideration, 837.

10. Alimony awarded with reference to such interests, 838,

839.

11. Question of remarriage, and costs left to courts of

defendant's nationality, 484.

12. Affirmative relief may be granted on cross bill where

petitioner has residential qualification though respond-
ent has not, 499.

13. Award of alimony to the extent of approximately one-

third of husband's earning held not unreasonable, 499.

14. Alimony awarded in decree may be set aside for subse-

quent adultery of wife, but evidence must be clear and
convincing, 534-6.

15. Fee allowed respondent's attorney for resisting motion

so to modify decree, 537.

16. Effect, 371.

17. Former jurisdiction of Consular Courts in, 11.

18. U. S. Court for China has jurisdiction to grant, 369-372,

483.

19. Evidence found sufficient to require decree on ground of

adultery, 484, 545, 690, 934.

20. Evidence found insufficient, 498.

DOMICIL.

1. Defined, 92, 94, 95, 137-142.

2. May be acquired by foreigners in a country subject to

extraterritorial jurisdiction, 103, '104, 154.

3. Of choice, how established, 136, 146.

4. ''Extraterritorial" criticised, 151.

DOUBLE JEOPARDY. See PROCEDURE, 1.
ELECTION. See Carriers, 7-9.
EMBEZZLEMENT. See CRIMES, 54-66.
EMINENT DOMAIN. See EXPROPRIATION.
EMPLOYMENT. See CONTRACTS, 60-72.
EQUITABLE ASSIGNMENT.

An order upon a specific fund in the bank creates an
equitable lien superior to a subsequent attachment, 107.

1034 INDEX.

EQUITY. See Reformation. Words and Phrases (Maxims).
ESCAPE. See also Crimes, 67-73.
As mark of guilt, 678.
ESTOPPEL. See Contracts, 15.

A "statement of dividends" submitted by one party to the

other who approves it and afterward effects a general

settlement with the first party, cannot be repudiated

later on the ground that the figui'es were incorrect, 450.

EVIDENCE. See Appeal, 3-5.

Circumstantial, 432.

1. Importance of, 799.

2. Latitude in receiving, to prove conspiracy. Id.

3. Must exclude every other reasonable hypothesis, 783, 784.

4. Held sufficient to convict, 284.

5. And to prove death, 651.
Presiimptions. See Citizenship, 1, 3.

6. Will presumed to cover entire estate, 632.

7. Marital status once established presumed to continue, 845.

8. Presumption of continuance of life after disappearance

may be overcome by presumption of good faith and
innocence, 653.

9. Flight of accused immediately after crime considered

a mark of guilt, 678.

10. Failure to produce, or explain the non-production of,

documentary evidence, raises the presumption that it
would be adverse, 795.

11. Failure of accused to testify cannot be considered against

him but failure to call witness present at his request
by suhpoina justifies the inference that latter's testi-
mony would be adverse, 902, 903.

Onus Prohandi.

12. On the accused to prove self-defense, 517.

13. The possessor of another's property, taken without the

owner's consent, has the burden of showing that his
possession is innocent, 793, 846, 863, 864.

14. On defendant in proceeding for libel to prove justifica-

tion, 494, 495.

15. On carrier to prove justification for refusing to accept

freight, 618.

16. On defendant, when plaintiff in action to recover land

produces registered title deed, 79.

17. Where the information alleges that the accused is an

American citizen the burden of proving the contrary
rests upon him, 478.

18. Party seeking recovery on contract assumes burden of

showing that his claim comes within its terms, 444.

INDEX. 1035

EVIDENCE— Continued.

Onus Prohandi — Continued.

19. The employer who terminates a contract of emplojnnent

before the time fixed has the burden of proving justi-
fication and also possibility of outside earnings by
employee, 804, 964, 977.

20. But that of proving justification for failure to accept

other employment after discharge rests upon the em-
ployee, 804, 805.

21. Where the employer admits an increase of the employee's

compensation the burden is on the former to show that
such increase was only temporary, 803.

22. In the Federal Courts, burden of proving contributory

negligence rests on defendant but such proof may ap-
pear from plaintiff's own evidence, 559, 593.
Judicial Notice.

23. Not ordinarily taken of foreign law which is presumed

to be the same as the common law of the forum, 342.

24. Nor of consul's jurisdiction, 32, 39.

25. Local laws, judicially noticed by British extraterritorial

Courts, 66, 73, 83, 84.

26. Facts judicially noticed not admitted by plea of guilty,

621.
Admissibility .

27. Matters not put in issue by pleadings, inadmissible, 564.

28. In trials before the Court error may be committed by

rejecting but never by receiving evidence, 849.

29. Proposed or disputed rule intended to avoid misleading

jury not applicable to jurisdictions where all trials
are by the Court, 676.

30. Principle applied to attempted limitation upon rule which

admits in evidence acts and statements in the accused's
presence, 675, 676.

31. Record of Coroner's inquest admissible in subsequent pros-

ecution for causing death, 673.

32. Physician's opinion as to cause of death admitted, 673,

674.

33. Copies of parish registers duly authenticated and ad-

missible in jurisdiction where issued will, in extra-
territorial courts, be admitted to prove an act recorded
therein, 700, 701.

34. Where libelous publication is ambiguous, evidence aliunde

admissible to show what parties were intended, 486.

35. Declaration of one co-conspirator admissible against all,

901.

36. Evidence of such declarations may be received before

conspiracy is fully proved, 794.

1036 INDEX.

EVIDENCE— Continued.

Admissibility — Continued.

37. Such declarations may be part of res gestae, 792.

38. Evidence of prior, extra-forensic statements by witness

for the prosecution, inconsistent with his testimony,
admitted by way of impeachment, 795.

39. Of transaction with decedent inadmissible, 599.

40. Where probated will is out of the jurisdiction, certified

copy of exemplified original is admissible, 670.

41. Declarations by parties to a written instrument prior to

its execution will not ordinarily be considered to vary
its terms, 906, 951, 952.
Quantum (Weight).

42. Rules for weighing stated, 266.

43. Affirmative prevails over negative, 267.

44. Chinese testimony weighed by same rules as any other,

154, 162.

45. Testimony of accused must be construed with due allow-

ance for his interest, 161, 165.

46. Marriage of defendant in a criminal cause may be proved

by his own admissions, 785.

47. Adultery; sufficiency of evidence to convict, 785.

48. Charge of adultery held not established by disputed and

uncorroborated testimony of a single witness, 498.

49. Identification of accused held sufficient, 679.

50. Rule of reasonable doubt applied, 549, 782, 784, 963 and

(note).

51. Certified copy of will purporting to be executed by British

Registrar of "Principal Probate Registry" authenti-
cated by seal of Probate Division of High Court of
Justice sufficient without other showing as to certifier,
669.

52. Preservation, 530.

53. A former trial may be proved by transcript sworn to by

stenographer who need not be an official one, 849.

54. Taking of depositions in China governed by Act of Con^

gress of 1789, 813.

55. Additional, on appeal, 183.

EXECUTORS AND ADMINISTRATORS. See ADMINISTRATION OF ESTATES,
7-14.

EXEGESIS. See CONTRACTS, 39-43. WILLS, 16-28.

EXPATRIATION. See CITIZENSHIP, 9-11.

EXPROPRIATION.

Appraisement of damages under English law, 74 et seq.

INDEX. 1037

EXTRATERRITORIALITY. See ARBITRATION AND AWARD, 1. CITIZEN-
SHIP, 6. Conflict of Laws. Set-off, 2.

1. Defined, 71, 95.

2. Treaties with China, granting, 1-3.

3. Rationale, 4-6, 120, 122.

4. History of British, 12 et seq.

5. British extended legislation under, 66, 74 et seq.

6. Lex loci rei sitae not affected by, 66, 70. But see 212.

7. Validity of mortgage registered in extraterritorial counti'y

determined by foreign law, 212.

8. Federal Constitution not extended under, 40, 50.

9. Acts of Congress passed originally for Alaska and the

District of Columbia held applicable to Americans in
China, 125.

10. Domicil may be acquired under, 103, 104, 154.

11. Does not change rules of domicil, 136.

12. Extends to nation's vessels, 58-65.

13. Jury trial not required in extraterritorial courts, 40, 50.

FALSE PRETENSES. See CRIMES, 74-80,

FEES. See Costs.

FORCE MAJEURE. See CONTRACTS, 86.

FORGERY. See Crimes, 81.

FRAUD. See CONTRACTS, 13, 48.

FOREIGN LAWS. See EVIDENCE, 23, 24.

GAMBLING. See CONTRACTS, 23-26. CRIMES, 82-84.

GUARANTY. See CONTRACTS, 73-78. PARTIES, 3.

HABEAS CORPUS.

Jurisdiction of Consular Courts, 11.
HIGHWAYS.

1. Rights of motorists and of pedestrians on public streets

are equal but each must keep a lookout for the other,
593.

2. But pedestrian not required to observe rule of "look and

listen" and may expect motorist to obey policeman's
signal to stop, 592, 593.

3. Motorist must exercise special care at crossings land

corners, 592.

HOMICIDE. See CRIMES, 85-87.

IMPEACHMENT. See EVIDENCE, 37.

INFANCY. See CITIZENSHIP, 7, 11. Crimes, 7, 8,

INFOIIMATION. See Pleading, 15-19.

1038 INDEX.

INHERITANCE. See SUCCESSION.
INJUNCTIONS.

1. Available only in absence of adequate legal remedy, 887.

2. When sought as ancillary to the main relief, right to the

latter must be clear. Id.

3. Available to prevent breach of valid contract by em-

ployee not to engage in competitive business, 768, 830,
999, 1000.

4. Form of bill for such injunction set out, 762-765.

5. Violation of, constituting contempt, must be established

by evidence equivalent to that required for convic-
tion of crime, 820.

INTEREST. See Contracts, 59. Judgments, 3, 4.

INTERVENTION. See APPEAL, 6.

1. In proceeding to set off judgments, allowed in favor of

judgment lienor against whom another judgment is
meanwhile rendered by the same court, 259 (reversing
225).

2. Order denying such intervention is final and reviewable

on appeal, 257.
INTESTATE SUCCESSION. See SUCCESSION.
INTOXICATING LIQUORS. See CRIMES, 12.

American legislation on, reviewed, 311-315.
JAPAN.

Treaties between, and the United States, 40, 51-55.
JEOPARDY. See PROCEDURE, 1.

JOINDER. See Actions, 2. Crimes, 60, 75. Parties, 3, 4.
JUDGMENTS. See COURTS, 9-12. Intervention. Parties, 2.

1. Only claims properly pleaded are entitled to adjudica-

tion, 561, 564.

2. An agent upon whom a summons may be served may

confess judgment against a corporate defendant, 808,
809.

3. Interest at 12 per cent is allowed on judgments rendere^J

by American Courts in China, 868.

4. Interest allowed from date when claim should have been

paid, 842.

JUDICIAL NOTICE. See Evidence, 23-25.
JURISDICTION. See also COURTS.

Defined, 639,
JURY. See Evidence, 29-31.

1. Not provided in American extraterritorial courts, 40

50, 478.

2. Record of Coroner's inquest admissible in subsequent

prosecution for causing death, 673.

INDEX. 1039

JUSTIFICATION. See Crimes, 34, 44, 45, 49.

LACHES.

Long delay in suing may cast suspicion on claim and
support plea of settlement, 435,

LAND TENURE. See Real PROPERTY.
LAND TITLES. See REAL PROPERTY,
LARCENY. See Crimes, 88-90,
LAW, See Conflict of Laws,
Generally.

1. Governing Americans in China ; elements, 7-9.

2. "Common Law" defined, 84, 87, 113, 123, 228.

3. Includes ancient statutes, 124.

4. Chinese law applied by British extraterritorial Courts

in China as regards land, 80, 389.

5. Mohammedan law similarly applied in Zanzibar, 66, 73,

6. Chinese legislation not enforcible against Americans by

criminal prosecution, 348, 349.

7. Chinese anti-opium legislation concurred in by British

Government enforcible against British subjects, 351-354.

8. Shanghai municipal ordinances enforcible against Amer-

icans, 350-1.
Statutes. See also Table, ante, pp. 1-lx.

9. Interpretation, 172.

10. General acts of Congress applied in extraterritorial juris-

diction in preference to those intended for a particular
area, 786, 810, 890, 892.

11. Where the special act merely supplements a general one

and is consistent therewith both may be applied, 810.

12. The act of Congress of 1789 governing the production

of evidence is a general act and will be so applied, 813.

13. Federal Bankruptcy Act cited as example of a general

"law of the United States," 897, 898.

14. Acts of Congress passed originally for Alaska and the

District of Columbia held applicable to Americans in
China, 125, 187, 188, 199, 209, 210, 285, 305, 311, 400,
472, 525, 544, 655, 899, 937, 951.

15. An act of Congress exempting all corporations from civil

process except in the district of their origin not suitable
to conditions in China, 638.

16. An act of Congress is not unsuitable for extension merely

by lack of an institution wherein the penalty for its
violation may be served, 541.

17. Federal Constitution not included in "laws of the United

States" extended over Americans in certain foreign
countries, 50, 311, 478.

1040 INDEX.

LAW — Continued.

Statutes — Continued.

18. But such laws do include certain penal statutes of Mary-

land continued in the District of Columbia by act of
Congress, 478, 479.

19. White Slave Traffic Act of Congress in force over Amer-

icans in China, 262.

20. Laws of the United States extended to China by acts of

Congress may be withdrawn only by similar act, 657.

21. Practice of extending laws to another jurisdiction re-

viewed, 658, 659.

22. Jurisdiction conferred upon court, similar to that al-

ready enjoyed by another, is treated as concurrent un-
less expressly declared to be exclusive, 880-883.

23. Coyisidur conrt regulations govern procedure of all Amer-

ican Courts in China except so far as modified and sup-
plemented by Judge of the United States Court and
prevail even over inconsistent acts of Congress, 169, 173,
222, 868.
LEGISLATION. See Law. Succession, 9.

Evident clerical error in drafting act of Congress of Feb-
ruary 23, 1887, 521.
LEX DOMICILII.

Governs administration of estates, 104.

LEX FORI. See CONFLICT OF Laws, 1.

Limitation of actions governed by, when, 82.

LEX REI SITAE.

1. Governs incidents of land, 66, 70, 80.

2. Also descent of real property, 539.

3. Limitation of actions governed by, when, 83.

LIBEL. See CRIMES, 41-49. Defamation.

LIENS. See Equitable Assignment. Warehousemen.

LIQUIDATOR.

Considered as corresponding to receiver, 245.

LIQUORS. See Crimes, 91.
MANDAMUS. See Corporations, 3.
MARRIAGE. See DIVORCE.

1. A civil contract, 319.

2. Jurisdiction to annul, accrues to the U. S. Court for China

from several sources, 325, 924.

3. Such jurisdiction is not affected by defendant's alien-

age, 926.

4. Existence of a prior valid marriage a ground for exercise

of such jurisdiction, 925.

INDEX. 1041

MARRIAGE — Continued.

5. Grounds of annulment are those applicable to ordinary

contracts, 325.

6. One who admits performance of marriage ceremony has

more than usual burden to prove want of consent there-
to, 367.

7. Such burden found not to have been met, Id.

8. Implied consent and acquiescence by silence during cere-

mony will suffice, Id.

9. Plaintiff found to have shown statutory two years res-

idence required for such relief, 926.

MASTER AND SERVANT. See CONTRACTS, 60-72.
MAXIMS. See WoRDs AND Phrases.
MEETING OF MINDS. See CONTRACTS, 2-6.
MERGER. See COURTS, 7, 8.
MISPRISION. See Crimes, 92.

MISTAKE. See REFORMATION.

MOHAMMEDAN LAW. See CONFLICT OF LAWS, 6. LAW, 5.

MONOPOLIES. See CONTRACTS, 29-33.

MORTGAGES.

1. Validity of, in extraterritorial country determined by

foreign law, 212.

2. Not entitled to registry under Spanish law nor sufficient

as notice unless executed before notary, 213.

3. English practice of mortgage by deposit of title deeds

appears to prevail in the International Settlement of
Shanghai, 389.

4. Mortgagee may repledge deeds and mortgagor may re-

deem from submortgagee, 390.

MURDER. See CRIMES, 85-87.

NAMES.

At common law an individual might change his name
without judicial sanction but under the statutes pre-
vailing in extraterritorial jurisdictions such change
requires a legal proceeding and "sufficient reasons not
inconsistent with the public interest" which were found
to be established, 815, 818.

NATIONALITY. See CITIZENSHIP.

NATURALIZATION. See CITIZENSHIP, 8, 11.

NEGLIGENCE. See CONTRIBUTORY NEGLIGENCE. REFORMATION, 3, 4.
14008 O. W. 66

1042 INDEX.

NE EXEAT.

Ground for writ of, held insufficient, 244.

NEGOTIABLE INSTRUMENTS. See Parties, 2.

1, Instrument sued on found to constitute one of a series of

"bought and sold notes," 438.

2. Broker not entitled to enforce such instrument nor, in

the absence of express assumption, not here shown,
subject to liability thereon, 438, 440.
NEW TRIAL.

Error of law is a sufficient ground for, under section 43,
Court Regulations, 341, 342.

NOLLE PROSEQUI. See PROCEDURE, 3, 4.

NOTICE. See CONTRACTS, 74-78. MORTGAGES, 2.

NOVATION. See Contracts, 37.

OFFICERS. See Corporations, 7.

ONUS PROBANDI. See EVIDENCE, 12-22.

OPIUM TRAFFIC.

1. Inadequacy of penalty provided by Act of 1887,

522, 523, 524.

2. Requirement of forfeiture "for the benefit of the Emperor

of China" applied in favor of Chinese Republic, 523.

3. Where drug has already been seized by Chinese Customs

officials no order of confiscation is necessary, 524.

4. Legislation, 349, 351.

ORDERS IN COUNCIL. See TABLE, ante, p. lix.

PARDON.

Prisoner accepting, bound by conditions, 66.

parent and child. see adoption. citizenship, 7, 11. divorce,
10. Succession.

PARTIES. See PLEADING, 3.

1. Foreign, in Consular Courts, 12.

2. Only a party to the action may be a party to the judgment,

223.

3. In an action against the guarantor of a promissory note

principals need not be joined, especially if outside the
jurisdiction, 646.

4. Where defendant in an action involving title and pos-

session has transferred his interest in the property the
transferee will be joined as a defendant on application,
282.

PARTNERSHIP. See CONTRACTS, 79-82.

PAYMENTS. See CONTRACTS, 59.

PENALTIES. See CRIMES, 17-29.

INDEX. 1043

PERJURY. See CRIMES, 93.
PETITION. See PLEADING.

PLEADING.

1. Under consular court regulations, 189, 201, 222, 223, 973.

2. Evidence and particulars need not be pleaded, 201, 834,

(but see 245).

3. But petition by the "liquidator" of a foreign corporation

should allege the particulars of his appointment and
authority therefor should be specifically pleaded, 246.

4. So should fraud. Id.

5. Requirement of particularity stricter in defamation than

in ordinary cases and the time, place and hearer of Ihe
offending statement must be set out if required by the
adverse party, 814.

6. Petition alleging breaches of lease and praying damage

"by reason of unlaw^ful acts of the defendant as above
set forth" sounds in contract and not in tort, 168.

7. A pleader vv^ho "elects to avoid a contract" cannot after-

w^ard be heard to invoke its terms, 760, 761.

8. Demurrer; form sufficient if statutory requirements are

met, 317.

9. Under a general denial defendant may show that the

contract sued on w^as different from that alleged but
such denial admits averment of defendant's corporate
capacity, 9.55.

10. Immaterial averments are not admitted by failure to deny

and an averment must be clear and unequivocal to
support a judgment on the pleadings, 972, 973.

11. Capacity to sue not raised by denial that plaintiff is a

"firm or company;" must be raised by demurrer, 335.

12. Proof of such averment is waived by stipulation for

judgment on such findings as court should make, 336.

13. Denial of a stipulation set forth in a petition inapplicable

to any other stipulation, 201.

14. Amendments after trial allowed as a rule only when not

substantially changing cause of action or defense, 998.
Criminal.

15. Complaints and informations must conform to statutory

definition of crime charged, 189.

16. Information charging vagrancy held sufficient, 189.

17. Information charging commission of crime "on or about"

a certain date not vitiated by proof that it occurred
the day after, 630.

18. An information in an extraterritorial court which fails

to allege defendant's nationality is demurrable, 376.

19. Plea of guilty admits only specific averments of informa-

tion and not facts judicially noticed, 621.

1044 INDEX.

PLEDGES. See Mortgages.

PRACTICE. See APPEAL. PROCEDURE.

PRELIMINARY EXAMINATION . See PROCEDURE, 1.

PRESCRIPTION. See LIMITATION OF ACTIONS.

PRESUMPTIONS. See EVIDENCE, 6-10.

PRINCIPAL AND AGENT. See AGENCY.

PROBATE. See Administration of Estates. Wills, 2.

PROCEDURE. See APPEAL. EVIDENCE, 26 et seq. Law, 23.

1. A preliminary examination will not bar a subsequent

prosecution, 129.

2. Evidence may be received even after plea of guilty for the

purpose of showing circumstances affecting the penalty,
516.
Discontiniiance.

3. Of prosecution before trial is discretionary with District

Attorney subject to no other approval than the Court's
which is ordinarily granted as a matter of course, 666,
636.

4. Motion therefor may be made at any stage of the cause,

636.
PROCESS.

1. A corporation with an agent in China is bound by a proper

summons left with the latter who, by accepting agency,
undertakes to transmit same, 639.

2. The mere leaving of such writ with the agent is not an

exercise of jurisdiction over him, 640.

3. In suit for divorce without alimony service by publication

is sufficient, 484.

4. Voluntary appearance of defendant waives jurisdiction

over the person, Id.

PUBLIC POLICY. See CONTRACTS, 23 et seq., 63.

QUANTUM MERUIT. See CONTRACTS, 18.

REAL PROPERTY.

Under Shanghai land tenure system disputes between
Chinese, regarding title to land included in Taotai's
deed to an American, should be adjusted through dip-
lomatic channels, 239.

RECORD. See MORTGAGES, 2.

REFEREES.

May be appointed by American Consular Courts in China,
476.

INDEX. 1045

REFORMATION.

1. Grounds for not established, 449.

2. A written contract which fails by reason of mutual mis-

take, or of a unilateral one induced by representations
of the other party, to express the real agreement, will
be reformed accordingly, 940.

3. Where the mistake was so induced negligence on the part

of the one seeking such relief is not fatal, 946.

4. But relief may be conditioned upon reimbursement of

adverse party for loss resulting from such negligence,
in estimating which losses not all the rules applicable
to ordinary damages need be applied, 949.

REGISTRATION. See MORTGAGES, 2.

REMEDIES. See ACTIONS.

RESCISSION. See Contracts, 46-48, 88.

RES GESTAE. See Evidence, 36.

RESTRAINT OF TRADE. See CONTRACTS, 29-33.

ROBBERY. See Crimes, 94-97.

SALES. See CONTRACTS, 83-95.

SEAMEN. See COURTS, 17. SHIPS.

SELF-DEFENSE. See CRIMES, 9-11.

SET-OFF. See Intervention.

1. Defined and distinguished, 739.

2. Available against alien in American extraterritorial

courts only to extent of latter's claim, 25, 27, et seq.,
31n., 91, 739, 740.

SHIPS. See Carriers. Courts, 5.

1. "Floating Island" theory, 50, 63, 397.

2. Seamen on American, treated as citizens, 64, 65.

SLANDER. See Crimes, 47-49.

SPECIFIC PERFORMANCE.

Injunction as negative method of, 768, 830, 999, 1000.

STARE DECISIS.

Doctrine applied, 278, 528, 868, 981.

"STATE'S EVIDENCE." See CRIMES, 30.

STATUTE OF FRAUDS. See CONTRACTS, 21, 22.

STATUTE OF LIMITATIONS. See LIMITATION OF ACTIONS.

STATUTES. See COURTS, 7, 8. Law, 9-23. Legislation. Table,
ante, 1-lx.

STOCK EXCHANGE, 225, 240.

1046 INDEX.

SUCCESSION.

1. Of Americans in China, governed by Act of Congress

of March 3, 1901, and consistent provisions of Act of
June 6, 1900, 525.

2. But the descent of real property is governed by the

lex loci rei sitae, 539.

3. Such property is not a primary asset of the estate but

vests at once in the heir, Id.

4. Father succeeds to whole estate of child dying without

issue, 540.

5. Widow entitled to one third, children to balance, 539, 599,

725.

6. Heir by force of law, having notice of provisions of will

which ignores him but claiming no share, deemed to
have waived same, 526, 527.

7. Heir allowed time for election as to forum, 539.

8. The estate of natural child who dies intestate and whose

mother is likewise dead passes to the latter's heirs at
law, 937.

9. Legislation regarding estates of American seamen dying

abroad, reviewed and construed, 717-722.
SUMMONS. See Process.
SURETYSHIP. See Contracts, 73-78.
TORTS. See Pleading, 5, 6.
TREATIES. See Table, cmte, p. Ixi.

1. Extraterritorial jurisdiction dependent on, 32, 34.

2. Legal efficiency of, unaffected by internal changes in

governments, 259.

TRIAL. See Appeal, 45. Venue, 3.

TRUSTS. See WiLLS, 24, 25.

Fiducial relation not shown between salesman and cus-
tomer, 908.

TURKEY.

1. American extraterritorial rights in, 32 et seq.

2. British extraterritorial rights in, 12 et seq.
UNITED STATES COMMISSIONER. See Commissioner.
VAGRANCY. See Crimes, 98-101.

VENDORS. See Contracts, 79-91.
VENUE.

1. Of Consular Court cases, 10.

2. Offence under White Slave Traffic Act of Congress triable

in China though initiated in the United States, 262.

3. U. S. Court for China not governed by Rev. Stats. Sec.

4085 regarding place )of trial and latter is not juris-
dictional, 508.
WAGERS. See Contracts, 23-25.

INDEX.

1047

WAREHOUSEMEN.

1. Defined, 991.

2. Lien of, at common law attached only to specific property

for which charge was imposed but by statute attaches to
other goods of the same bailee whenever deposited, 990.

3. Custom of, to charge a month's storage on goods left more

than ten days enforced, 990.

WARRANT. See ARREST, 1-3.

Does not necessarily mean warrant of arrest, 359.

WEAPONS. See CRIMES, 28.

WILLS. See Evidence, 6, 40, 51.

1. No particular form necessary if intention is disclosed to

dispose of property effective after death, 713, 716.

2. Informal instrument found sufficient and admitted to

probate, 714.

3. Not invalidated because decedent's signature appears in

last clause instead of at end, 648.

4. Nor because testator's hand was guided by another, 654.

5. Nor because a subscribing witness, not benefiting there-

from, is named executrix, 649.

6. Importance of care in drafting, 649, 716.

7. Holographic defined, 843, 912.

8. valid, 92, 93, 627, 893, 912, 939.

9. need not be subscribed nor attested, 627.

10. nor is designation of executor necessary, 628.

11. instrument containing words written by decedent

sufficient to effect valid disposition of property, is an
holographic will tho it also contain printed matter
not inconsistent therewith, and tho not properly at-
tested, 939.

12. A codicil may be holographic tho the original instru-

ment was regularly subscribed and attested, 894.

13. The codicil may take the form of an erasure and an inter-

lineation if in decedent's handwriting. Id.

14. Codicils are to be considered together with original in-

strument as one and where some of the provisions
conflict, the latest codicil prevails and effects a republi-
cation proceeding instrument, 771, 773.

15. While requirements of a codicil as to attestation are the

same as those of a will, a codicil defective in that regard
may be validated by a subsequent one, 771, 773.

16. Such instrument recited and construed according to pre-

ceding rules, 771.

17. Nuncupative, permissible in this jurisdiction by none

other than soldiers in the service and mariners at
sea, 935.

1048 INDEX.

WILLS— Continued.

18. Testator's intent chief guide in testamentary construction

and will be carried out as nearly as possible tho
defectively expressed; rule applied, 693,697,698,716,

19. Particular directions prevail over general provisions, 895.

20. Presumed to cover entire estate, 632.

21. Punctuation supplied to clear up ambiguity, Id.

22. The phrase "all my valuables" construed to cover entire

estate personal and real, 633.

23. Bequest to a person "or his heirs" considered as a bequest

to him, 845.

24. A bequest to a mother and child or children creates a

trust in favor of the latter each of whom takes an equal
share, 895, 896.

25. A bequest "to my successor in the work in trust for the

Hardy Bible Training School" construed as bequest to
latter, 1001 (note).

26. Where the sole beneficiaries are a brother and sister desig-

nated as "my two children" and the latter dies before
distribution, the former takes her entire estate includ-
ing her share under the will, 846.

27. A clause directing investment of decedent's funds "for

benefit of my wife and daughter" constitutes a direct
bequest to each in equal shares, 1001.

28. Revocation. A devise to "my wife, Mrs. Eleanor Biddle"

is not revoked by the subsequent divorce of the benefi-
ciary, tho at her instance, 888.

29. Sufficiency of certified copy, 668.

WITNESSES. See Evidence, 11, 38, 41 et seq. Wills, 5, 9.

WORDS AND PHRASES.
"Abroad," 422.

"Act of God," 606, 618.

"Agent," 198, 209.

"All my valuables," 632, 633.

"Amicus curiae," 419 (note).

"Arrest," 361.

"Best part," 728, 729.

"Common law," 84, 87, 113, 123, 228.

"Contributory negligence." 559.

"Conceal," 392.

"Custody," 361.

"Dangerous weapon," 130.

"Delivery," 88, 89.

"Domicil," 95, 137-142.

"Effects," 633.

INDEX. 1049

WORDS AND PHRASES— Continued.
"Ejusdem generis," 303, 337.
"Extraterritorial domicil," 151.
"Extraterritoriality," 95.
"Floating island," ship as, 63, 397.
"Force majeure," 982.
"Foreign commerce," 263.
"High seas," 40, 57, 398.
"Indian country," 313.
"Judicial proceeding," 355.
"Jurisdiction," 639.
"Laws of the United States," 199, 472, 477, 638, 659-661, 689,

897, 898.
"Libel," 486.
"Liquidator," 245.
"Malice," 489.
"May," 421.

"Necessary," 638, 661, 686, 689, 760, 898, 950.
"Net marine sales," 219.
"On or about," 630.
"Proximate cause," 594.

"Reasonable doubt," 555, 782, 963, and note.
"Servant," 198, 209.

"Suitable," 541, 638, 661, 664, 689, 760, 892, 898, 951.
"Swear," 788.
"Vagrancy," 190, 194.
"Warehousemen," 991.
"Warrant," 359.
"Workhouse," 542.

MAXIMS.

Conventio facit legem, 928.
Damnum absque injuria, 468.

Expressio unius est exclusio alterius, 172, 421, 709, 883.
"He who seeks equity must do equity" is a maxim applicable to
each claimant for equitable relief and prerequisite thereto, 944.
Ignorantia legis hand excusat, 332.

In pari delicto melior est conditio possidentis, 429, 465.
Injuria sine damno, 468.

Lex 7ieminem cogit ad vana sen inutilia, 724,
Nemo haeres viventis est, 845.
Semper praesumitur pro matrimonio, 367. i

WORK AND LABOR. See CONTRACTS, 60-72.

■r.

^ERIM BRANCH^

vMY OF CALfFORNfAi

LIBRARY,
ILDS ANGELES. CAUf:

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Full text of "Extraterritorial cases, including the decisions of the United States Court for China from its beginning, those reviewing the same by the Court of Appeals, and the leading cases decided by other courts on questions of extraterritoriality"

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