3. Cromwell v. County of Sac, 94 U. S. 351, distinguished. Bissell v. Spring
Valley Township, 225.

4. Hall v. Russell, 101 U. S. 503, distinguished. Brazee v. Schofield, 495.
5. United States v. Curry, 6 How. 106, distinguished. Brown v. McCon-
nell, 489.

CHINESE.

A Chinese laborer, who resided in the United States on November 17th,
1880, continued to reside there till October 24th, 1883, 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: (1) He was in custody under or by color of 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 upon the question of allowing the person to
land, or by the fact that the treaty provides for diplomatic action in
case of hardships; (3) the case of the petitioner was not to be adjudi-
cated under the provisions of the act of July 5, 1884, c. 220, 23 Stat.
115, where they differed from the act of 1882; (4) in view of the pro-
visions of § 4 of the act of 1882, in regard to a Chinese laborer arriv-
ing 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. United
States v. Jung Ah Lung, 621.

CHOSE IN ACTION.

See JURISDICTION, B, 4.

CIRCUIT COURTS OF THE UNITED STATES.

See APPEAL;

JURISDICTION, B.

CLERK

1. Section 3639 of the

lector of customs.

OF COLLECTOR OF CUSTOMS.

Revised Statutes does not apply to clerks of a col-
United States v. Smith, 524.

2. Clerks of a collector of customs are not appointed by the head of a de-
partment, and are not officers of the United States in the sense of the
Constitution.

lb.

COLORADO.

See REMOVAL OF CAUSES, 2.

CONFISCATION.

Under the provisions of Spanish law in force in Mexico in 1814-1817, con-
fiscation of property as a punishment for the crime of treason could
only be effected by regular judicial proceedings; and, it being once
declared, the property remained subject to the exclusive jurisdiction
of the intendants, both in ordering sale and in taking cognizance of
controversies raised concerning it. Sabariego v. Maverick, 261.
See PRESUMPTION, 2.

CONFISCATION ACT.

The confiscation act of July 17, 1862, 12 Stat. 589, c. 195, construed in
connection with the joint resolution of the same day explanatory of
it, 12 Stat. 627, makes no disposition of the confiscated property after
the death of the owner, but leaves it to devolve to his heirs according
to the lex rei site, and those heirs take qua heirs, and not by donation
from the government. Shields v. Schiff, 351.

See LOCAL LAW, 3, 4, 5.

CONFLICT OF LAW.

See ATTACHMENT, 1, 2.

CONSTITUTIONAL LAW.

1. Applying to this case the rules stated in Spies v. Illinois, 123 U. S. 131,
that "to give this court jurisdiction under § 709 Rev. Stat. because of
the denial by a state court of any title, right, privilege or immunity
claimed under the Constitution, or any treaty or statute of the United
States, it must appear on the record that such title, right, privilege or
immunity was 'specially set up or claimed' at the proper time and in
the proper way;" that "to be reviewable here the decision must be
against the right so set up or claimed;" and that "as the Supreme
Court of the State was reviewing the decision of the trial court, it
must appear that the claim was made in that court," it appears that at
the trial of the plaintiff in error, no title, right, privilege or immunity
under the Constitution, laws or treaties of the United States was
specially set up or claimed in the trial court. Brooks v. Missouri, 394.
2. The legislature of Alabama enacted a law entitled “An act to require
locomotive engineers in this State to be examined and licensed by a
board to be appointed for that purpose," in which it was provided that
it should be "unlawful for the engineer of any railroad train in this
State to drive or operate or engineer any train of cars or engine upon
the main line or roadbed of any railroad in this State which is used

for the transportation of persons, passengers or freight, without first
undergoing an examination and obtaining a license as hereinafter pro-
vided." The statute then provided for the creation of a board of
examiners and prescribed their duties, and authorized them to issue
licenses and imposed a license fee, and then enacted "that any engi-
neer violating the provisions of this act shall be guilty of a misde-
meanor, and, upon conviction, shall be fined not less than fifty nor
more than five hundred dollars, and may also be sentenced to hard
labor for the county for not more than six months." Plaintiff in
error was an engineer in the service of the Mobile and Ohio Railroad
Company. His duty was to "drive, operate, and engineer" a locomo-
tive engine drawing a passenger, train on that road, regularly plying in
one continuous trip between Mobile in Alabama and Corinth in Mis-
sissippi, and vice versa, 60 miles of which trip was in Alabama, and
265 in Mississippi. He never "drove, operated, or engineered" a
locomotive engine hauling cars from one point to another point exclu-
sively within the State of Alabama. After the statute of Alabama
took effect, he continued to perform such regular duties without taking
out the license required by that act. He was proceeded against for a
violation of the statute, and was committed to jail to answer the
charge. He petitioned a state court for a writ of habeas corpus upon
the ground that he was employed in interstate commerce, and that the
statute, so far as it applied to him, was a regulation of commerce
among the States, and repugnant to the Constitution of the United
States. The writ was refused, and the Supreme Court of the State of
Alabama on appeal affirmed that judgment. Held: (1) That the
statute of Alabama was not, in its nature, a regulation of commerce,
even when applied to such a case as this; (2) That it was an act of
legislation within the scope of the powers reserved to the States, to
regulate the relative rights and duties of persons within their respec-
tive territorial jurisdictions, being intended to operate so as to secure
safety of persons and property for the public; (3) That so far as it
affected transactions of commerce among the States, it did so only
indirectly, incidentally and remotely, and not so as to burden or
impede them, and that, in the particulars in which it touched those
transactions at all, it was not in conflict with any express enactment
of Congress on the subject, nor contrary to any intention of Congress
to be presumed from its silence; (4) That so far as it was alleged to
contravene the Constitution of the United States, the statute was a
valid law. Smith v. Alabama, 465.

See TREATY, 2;

WASHINGTON AQUEDUCT.

CONTRACT.

1. The defendant agreed to make for the plaintiff 400 tons of iron, and to
ship it about September 1st, or as soon as he could manufacture it, for

$19.50 per ton. He did not deliver any of it at or about that date, nor
as soon as he had manufactured the required amount. The referee
found that the defendant "postponed the execution of the contract
from time to time," and that, on November 7th, he insisted, as condi-
tions of delivering the iron, on certain provisions not contained in the
original agreement. The plaintiff did not comply with those conditions,
and the iron was not delivered. The referee found that the market value
of such iron, on November 7th, was $34 per ton, and did not find what
the market value of such iron was at any other time. In a suit by the
plaintiff against the defendant to recover damages for a breach of
the contract, he was allowed $14.50 per ton. On a writ of error:
Held, (1) The postponement of the execution of the contract must be
inferred, from the findings, to have been with the assent of the plain-
tiff; (2) The rule of damages applied was proper. Roberts v. Benjamin,
64.

2. In 1857 F. and L. entered into an agreement whereby F. was to convey
to L. two tracts of land at an assumed value of $26,000, on which was
an indebtedness estimated at about $18,000. L. was to assume and
pay that indebtedness, and was to convey to F. "five town lots" and
"about 1000 acres of land," "being all the lands owned by said L.” at
that place, all valued at $10,000; and F. was to pay to L. what might
be found due on these assumed values after adjusting the indebted-
ness. Each party took possession of the lands acquired by the exchange.
F. conveyed to L. and L. assumed and paid the indebtedness. L. re-
tained title of the lands to be conveyed to F. until F. should pay the
difference. In 1871, the amount being unpaid, L. brought suit against
F. and J. to whom F. had conveyed a portion of the land. This suit
was compromised by a further agreement in which the tract was
described as land "sold by said L. to said F. estimated to contain
1000 acres. On a survey had after that compromise it was found
that the tract in question fell much short of 1000 acres. F. filed this
bill in 1877, seeking, among other things, to prevent the collection of
the difference found due to L. in the original exchange, on the ground
that the contract was for a conveyance of 1000 acres, and that the
representations of L. in this respect had been false and fraudulent..
Held: (1) That, taken in connection with all the facts proved, L.'s
representation could not be regarded as fraudulently made; (2) That,
the governing element in the transaction being that it was an exchange
of several tracts of land between the parties, the contract was not to be
construed by the strict rule which might govern its interpretation if
it were an independent purchase to be paid for in money; (3) That,
thus construed, it was not an agreement by L. that the tract contained
1000 acres, which bound him to make good the difference between
1000 acres and the quantity found within the boundaries by actual
survey. Lawson v. Floyd, 108.

3. The insolvency of the vendee in a contract for the sale and future

delivery of personal property in instalments, payment to be made in
notes of the vendee as each instalment is delivered, is sufficient to jus-
tify the vendor for refusing to continue the delivery, unless payment
be made in cash; but it does not absolve him from offering to deliver
the property in performance of the contract if he intends to hold the
purchasing party to it: he cannot insist upon damages for non-per-
formance by the insolvent without showing performance on his own
part, or an offer to perform, with ability to make the offer good.
Florence Mining Co. v. Brown, 385.

4. When, in the performance of a written contract, both parties put a prac-
tical construction upon it which is at variance with its literal meaning,
that construction will prevail, over the language of the contract. Dis-
trict of Columbia v. Gallaher, 505.

5. In this case the defendant in error having under a written contract with
the agents of the plaintiff in error constructed a sewer which in the
course of construction was, by mutual consent, and for reasons assented
to by both parties, made to vary in some respects from the plans which
formed part of the contract, but without any agreement as to a change
in the contract price: Held, for the reasons given by the Court of
Claims, that the judgment of that court awarding the contract price
for the work is affirmed. Ib.

See DAMAGES;
EQUITY, 2, 3.

COPYRIGHT.

1. An employé of a business house, who, having a principal place in the
establishment, is entrusted by his employers under their direction and
on their behalf, in their building, and subject to their control and use,
with the custody and possession of printed copies of a copyrighted
photograph printed in violation of the provisions of Rev. Stat. § 4965
has no such possession of them as will entitle the proprietor of the
copyright to proceed against him for a forfeiture of one dollar for
every sheet under that section. Thornton v. Schreiber, 612.

2. The words "found in his possession" in § 4965 of the Revised Statutes
do not relate to the finding of the jury that the articles in question
were in the defendant's possession, but require that there should be a
time before the cause of action accrues, at which they are found in
his possession. Ib.

3. Whether the provision in Rev. Stat. § 4965 that one-half of the profit
shall go
"to the proprietor, and the other half to the use of the United
States" does not relate solely to the "case of a painting, statue, or
statuary," quære. lb.

COUNTERCLAIM.

A counterclaim set up by the defendant was, on the facts, properly
disallowed. Roberts v. Benjamin, 64.