p
 
 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.
 
 TO 
 
 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.
 
 JX 
 
 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. 
 
 V
 
 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. 
 
 ix
 
 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. 
 
 A. 
 
 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 
 
 B. 
 
 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 
 
 xi
 
 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 
 
 C. 
 
 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 
 
 E. 
 
 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 
 
 F. 
 
 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 
 
 G. 
 
 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 
 
 H. 
 
 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 
 
 I. 
 
 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. 
 
 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 
 
 K. 
 
 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 
 
 L. 
 
 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 
 
 M. 
 
 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. 
 
 N. 
 
 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 
 
 O. 
 
 Oriental Press v. Robert Dollar Co 989 
 
 Osete, United States v 782 
 
 Osman, United States v 540 
 
 P. 
 
 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 
 
 R. 
 
 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 
 
 S. 
 
 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 
 
 T. 
 
 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 
 
 U. 
 
 .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 
 
 V. 
 
 Vacuum Oil Company, Noblston v 214 
 
 Viloudaki, Sun Ming-shan v 263 
 
 W. 
 
 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 
 
 Y. 
 
 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 
 
 z. 
 
 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. 
 
 A. 
 
 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 
 
 B. 
 
 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 
 
 C. 
 
 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 
 
 D. 
 
 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 
 
 E. 
 
 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 
 
 F. 
 
 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. 
 
 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 
 
 H. 
 
 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. 
 
 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. 
 
 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 
 
 M. 
 
 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 
 
 N. 
 
 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 
 
 O. 
 
 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 
 
 P. 
 
 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 
 
 Q. 
 
 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 
 
 R. 
 
 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 
 
 S. 
 
 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 
 
 T. 
 
 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 
 
 U. 
 
 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 
 
 V. 
 
 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 
 
 W. 
 
 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 
 
 Y. 
 
 Young V. Cook, 144 Mass., 39, 10 N. E., 719 814 
 
 z. 
 
 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. 
 
 V. 
 
 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, 
 
 "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.'" 
 
 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." " 
 
 V. 
 
 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. 
 
 So 
 
 "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. 
 
 No 
 
 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. 
 
 V. 
 
 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 
 
 "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." 
 
 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. 
 
 V. 
 
 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). 
 
 i
 
 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: 
 
 "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 reason- 
 ably be considered either arising naturally, i. e., according to the 
 
 ' 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. 
 
 n
 
 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 
 
 "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." "' 
 
 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: 
 
 I 
 
 ' 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. 
 
 I
 
 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. 
 
 o
 
 ■r.
 
 ^ERIM BRANCH^ 
 
 vMY OF CALfFORNfAi 
 
 LIBRARY, 
 ILDS ANGELES. CAUf: