Opinion of the Court.

ment, could be said to have had the possession of these prints when they were found by the plaintiffs in the store of Sharpless & Sons. In any other light that it can be viewed, that firm would be held to be in possession. An action of replevin could have been sustained against them for the possession of these goods, or an action of trover, if they had been the property of plaintiffs, on account of the possession of them by Sharpless & Sons. Sharpless & Sons could have done what they pleased with them; they could have ordered them thrown out and burned; they could have given them up, and they did offer to give them up, to plaintiffs. It was Sharpless himself who made this offer, and the plaintiffs obviously understood that Sharpless was the man with whom they were dealing all this time. Their first visits were to him; they talked the matter over with him; they recognized him as having control of the plates, of the prints, of the entire transaction; and it is impossible to conceive that Mr. Thornton had any other control over those sheets than he had over any piece of dry goods in the building. What he did during all the time in which this transaction occurred was as an employé of Sharpless & Sons; and any other clerk, porter, or salesman in that establishment, who handled these articles, or who had access to them and could use them upon packages of goods, had as much possession of them as Mr. Thornton, and any such person could have been sued and a recovery had against him as lawfully as against Thornton, so far as the matter of possession is concerned. What right of action might have been maintained against Thornton for actively copying, printing, selling, or exposing these prints for sale, is not now in question; the recovery here is based upon the fact of their being found in his possession.

Counsel for defendants in error, Schreiber & Sons, insist that the words "found in his possession" are to be construed as referring to the finding of the jury; that the expression means simply that where the sheets are ascertained by the finding of the jury to have been at any time in the possession of the person who committed the wrongful act, such person shall forfeit one dollar for each sheet so ascertained to have

Syllabus.

been in his possession. We, however, think that the word “found" means that there must be a time before the cause of action accrues at which they are found in the possession of the defendant. If, however, plaintiffs' view of the subject were tenable, the fact still remains that the only possession Mr. Thornton ever had of these prints was the possession of Sharpless & Sons, holding them merely as their employé, subject always to their order and control, and never with any claim of right in him to control them except in their service. .

The instructions of the court to the jury, therefore, on this subject, were erroneous, and the testimony did not justify the charge. For this reason

The judgment of the Circuit Court is reversed, and the case remanded with instruction to set aside the verdict, and for further proceedings in accordance with this opinion.

UNITED STATES v. JUNG AH LUNG.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA.

Submitted January 9, 1888. - Decided February 13, 1888.

A Chinese laborer, who resided in the United States on November 17th, 1880, continued to reside there till October 24th, 193, when he left San Francisco for China, taking with him a certificate of identification issued to him by the collector of that port, in the form required by the 4th section of the act of May 6, 1882, c. 126, 22 Stat. 58, which was stolen from him in China, and remained outstanding and uncancelled. Returning from China to San Francisco by a vessel, he was not allowed by the collector to land, for want of the certificate, and was detained in custody in the port, by the master of the vessel, by direction of the customs authorities. On a writ of habeas corpus, issued by the District Court of the United States, it appeared that he corresponded, in all respects, with the description contained in the registration books of the custom-house of the person to whom the certificate was issued. He was discharged from custody, and the order of discharge was affirmed by the Circuit Court.

On appeal to this court, by the United States, Held:

Opinion of the Court.

(1) He was in custody under or by color of the authority of the United States, and the District Court had jurisdiction to issue the writ; (2) The jurisdiction of the court was not affected by the fact that the collector had passed on the question of allowing the person to land, or by the fact that the treaty provides for diplomatic action in a case of hardship;

(3) The case of the petitioner was not to be adjudicated under the provisions of the act of July 5, 1884, c. 220, 23 Stat. 115, where they differed from those of the act of 1882.

(4) In view of the provisions of § 4 of the act of 1882, in regard to a Chinese laborer arriving by sea, as distinguished from those of § 12 of the same act in regard to one arriving by land, the District Court was authorized to receive the evidence it did, in regard to the identity of the petitioner, and, on the facts it found, to discharge him from custody.

THIS was a petition for a writ of habeas corpus. The court below ordered the discharge of the prisoner, from which judgment the United States appealed. The case is stated in the opinion of the court.

Mr. Attorney General for appellant.

Mr. Thomas D. Riordan for appellee.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

This is an appeal by the United States from a judgment of the Circuit Court of the United States for the District of California, affirming the judgment of the District Court of that district, in a case of habeas corpus, which ordered the discharge from custody of the person in whose behalf the writ. was sued out.

On the 28th of September, 1885, a petition was presented to the District Court, alleging that Jung Ah Lung, a subject of the Emperor of China, was unlawfully restrained of his liberty by the master of a steamship in the port of San Francisco, he having arrived in that vessel and not being allowed to land because it was contended that it was unlawful for him to do so under the provisions of the acts of Congress on that subject. On the filing of the petition, a writ of habeas corpus was

Opinion of the Court.

issued by the District Court to the master of the vessel, commanding him to produce the body of Jung Ah Lung before the court. This was done, and the master made return that he held Jung Ah Lung in his custody "by direction of the customs authorities of the port of San Francisco, California, under the provisions of the Chinese Restriction Act."

On the 12th of October, 1885, by leave of the court, the United States Attorney for the district was allowed to file, on behalf of the United States, a special intervention and plea to the jurisdiction of the court. Two questions were raised by it: (1) that Jung Ah Lung was not so restrained of his liberty as to be entitled to the benefit of a writ of habeas corpus; (2) that the collector of the port had passed judgment on the matters of law and fact involved, and the same were res adjudicata. To this intervention Jung Ah Lung demurred, and the demurrer was sustained. The opinion of the court is reported in 25 Fed. Rep. 141. It considered the question of jurisdiction, and held that (1) the case was a proper one for the issuing of a writ of habeas corpus; (2) the collector was not clothed with exclusive jurisdiction in the premises. It gave leave to the District Attorney to file an intervention to the merits, which he did, setting forth that Jung Ah Lung was lawfully refused permission to land in the United States, in compliance with the provisions of acts of Congress, because he failed to produce to the collector the certificate of identification provided for by those acts; and that he was not entitled to land in the United States. The issue thus joined was tried by the court.

There is a bill of exceptions, which states that the counsel for Jung Ah Lung offered to prove that he was a Chinese laborer, residing in the United States on November 17, 1880, the date of the last treaty between the United States and the Emperor of China; that he resided in the United States continuously until October 24, 1883, when, being about to return to China, he received from the collector of San Francisco a certificate enabling him to reënter the United States, in conformity with the act of Congress of May 6, 1882, c. 126, 22 Stat. 58; that he departed for China, taking such certificate with him; that he remained in China until he embarked for

Opinion of the Court.

San Francisco on August 25, 1885; that, prior thereto, and in June, 1885, he was deprived of said certificate by its being taken from him by robbery, by pirates, in China; that the books in the registration office of the custom-house in San Francisco showed that the certificate was issued to him; that no one had presented it or entered upon it, and it was uncancelled; and that he conformed in every particular with the description kept in such registration office of the person to whom such certificate was issued. The District Attorney objected to the introduction of this testimony, as incompetent, on the ground that the statute provided that the certificate should be the only evidence permissible to establish the right of a Chinese laborer to reënter the United States, and that no secondary evidence of the loss and contents of the certificate could be received. The objection was overruled by the court, the District Attorney excepted to the ruling, and the evidence was received.

The District Court filed the following findings:

"Counsel for applicant proceeded to introduce testimony by which it appeared to the satisfaction of this court, and this court so finds: That Jung Ah Lung is a Chinese laborer, being one of the proprietors of a laundry situated at No. 1391 Second Avenue, New York City; that he was a resident of the United States on the 17th day of November, A.D. 1880, the date of the last treaty between the United States and the Empire of China, and that he resided continuously in the United States until on or about the 24th day of October, A.D. 1883, when he led for China on the steamer Rio de Janeiro; that, before sailing for China, he duly applied for and received from the collector of customs for the district of San Francisco a certificate of identification, stating his name, age, occupation, last place of residence, physical marks and peculiarities, and all facts necessary for his identification in conformity to the act of Congress entitled 'An act to execute certain treaty stipulations relating to Chinese,' approved May 6th, 1882; that he departed on said steamer for China, having in his possession, and taking away with him, the said certificate; that, during the month of June, A.D. 1885, while on a vovage from