In Macomber v. Parker, 13 Pick (Mass.) 183, it was said:

"Where any operation of weight, measurement, or counting, or the like, remains to be performed, in order to ascertain the price, the quantity or the particular commodity to be delivered, and to put it in a deliverable shape, the contract is incomplete until such operation is performed; but, where the goods or commodities are actually delivered, that shows the intent of the parties to complete the sale by the delivery, and the weighing, measuring, or counting afterwards would not be considered as any part of the contract of sale, but could be taken to refer to the adjustment of the final settlement as to the price."

Plaintiff in error argues that, even if the court finds the contract was not a conditional one, still it was fairly susceptible of two interpretations, and that therefore explanatory evidence was admissible. Relying upon this premise, he has assigned error because the trial court denied an offer to prove conversations that were had between the loggers and Noyes that led up to the execution of the contract, and an offer of proof that when the contract was presented to the loggers for signature they demurred to signing it because it did not provide for delivery in the slough or boom alongside of the bank, whereupon Noyes told them that he would not be responsible for the logs in the slough or until they were pulled from the water, and they could sign the contract or not.

But if the court can ascertain from the language of the writing itself what the parties meant, then evidence of language employed before they expressed their intention in writing is on principle immaterial. United States v. Bethlehem Steel Co., 205 U. S. 105, 27 Sup. Ct. 450, 51 L. Ed. 731. Our duty is to find out the true sense of the written words as the parties have used them, and then, as heretofore held, when that true sense is ascertained, test the writing in the light of established legal rules. If the agreement before us had been incomplete or unintelligible, explanation not inconsistent with its written terms would have been perfectly competent; but, as the writing is complete and intelligible, parol evidence of prior conversations to prove the intention of the parties inconsistent with its ascertained. meaning was not proper. We are not losing sight of the necessity for interpretation, according to the subject-matter referred to in a contract, and of surrounding circumstances, and of the admissibility of verbal testimony in order to find out the subject to which a writing refers; but parol evidence to explain the nature of the subject of a written. instrument is very different from evidence of verbal communications respecting the contract itself. A familiar illustration is where parol evidence is admitted to show that land in a deed is described as in one locality, while it really lies in another; or, where a factory has been conveyed as a factory, it is permissible to receive verbal testimony to show what part or parcel is passed by the deed. Greenleaf on Evidence, c. 15. Here the instrument does not present ambiguity in the true sense and meaning of the words themselves, or such difficulties as to their application as to have warranted investigation by evidence outside of the paper itself. We must therefore sustain the ruling of the lower court in rejecting the offer made.

Effort was also made by plaintiff in error to prove that a general cus

tom existed among loggers and sawmill men in the Tanana Valley, whereby logs delivered at a mill are at the risk of the loggers and remain so until pulled from the water and scaled, and the amount determined; but the court sustained the objections of defendants in error and refused to allow such evidence. Plaintiff in error seeks to apply the rule that customary rights and incidents universally attaching to the subject-matter of a contract, where it is made, are annexed by implication to the language and terms of the contract, unless custom is expressly excluded. But the doctrine of evidence of custom cannot prevail over the express provisions of a contract. "Its true and appropriate office is to interpret the otherwise indeterminate intention of the parties, and to ascertain the nature and extent of their contracts arising, not from express stipulations, but from mere implications and presumptions and acts of a doubtful or equivocal character." Bliven et al. v. New England Screw Co., 23 How. 420, 16 L. Ed. 510. It is enough to say that the real meaning of the contract, as interpreted by the words used, provided for a delivery at a particular place, and was not indeterminate, and therefore evidence of custom was irrelevant. Barnard v. Kellogg, 77 U. S. 383, 19 L. Ed. 987.

Other points of a minor character were made by plaintiff in error. They have been examined, and are largely covered by what we have already said. None appear to be well taken.

In conclusion, we believe that the proper construction of the contract is that the parties intended that Noyes should become the owner of the logs when actually delivered into the slough, and that, from the time of delivery so made, he was the owner and could have recovered the property, had it been attached under writ issued in an action brought by a creditor of the loggers. Accident was hardly contemplated; but, when it occurred, by the rules of law the owner must be the sufferer.

1. CRIMINAL LAW-JURISDICTION-UNITED STATES COURT FOR CHINA. The object of Act June 30, 1906, c. 3934, 34 Stat. 814 [U. S. Comp. St. Supp. 1907, p. 797], creating the United States Court for China, and of the treaty under which it was created, in so far as that court is given criminal jurisdiction, was to secure to American citizens residing or sojourning in China and there charged with crime the benefit of the principles of the laws of the United States relating to the trial of persons accused of crime; but the statute at the same time makes such citizens subject to punishment for acts made criminal by any law of the United States or for acts recognized as crimes by the common law.

2. SAME-OFFENSES PUNISHABLE-OBTAINING MONEY BY FALSE PRETENSES. The provisions of such statute, making the common law applicable to criminal offenses committed by American citizens in China, are to be construed as referring to the common law in force in the several American colonies at the time of their separation from England, and this in

cluded not only the ancient common or unwritten law, but also statutes which had theretofore been passed amendatory of or in aid of the common law, among which was St. 30 Geo. II, c. 24, enacted in 1757, creating the offense of obtaining money or goods under false pretenses, and the subsequent amendments thereto.

3. SAME.

In view of the legislation of Congress making the obtaining of money or property by false pretenses a crime in Alaska and the District of Columbia and in other territory subject to the criminal jurisdiction of the United States, such act is an offense against the laws of the United States, within the meaning of Act June 30, 1906, c. 3934, 34 Stat. 814 [U. S. Comp. St. Supp. 1907, p. 797], conferring jurisdiction upon the United States Court for China, and an American citizen guilty of the commission of such act in China is subject to trial and punishment therefor by that court.

4. FALSE PRETENSES-ELEMENTS OF OFFENSE-NATURE OF PRETENSES.

To constitute the crime of obtaining money under false pretenses, the alleged false representation must be of some past or existing fact, and an information charging that a defendant obtained money from persons named as rental for a building, by means of false representations that the municipal authorities would permit gambling games to be played therein during a race meeting to be held in the future, is insufficient to charge an offense.

[Ed. Note. For cases in point, see Cent. Dig. vol. 23, False Pretenses, §§ 5-12.]

Appeal from the United States Court for China.

Edwin H. Lamme and Francis Ellis, for appellant.

Robert T. Devlin, U. S. Atty., and Benjamin L. McKinley, Asst. U. S. Atty.

Before GILBERT, Circuit Judge, and DE HAVEN and HUNT, District Judges.

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 convicted of the crime of obtaining money under false pretenses, 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 pretenses 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.

1. The United States Court for China was created by Act June 30, 1906, c. 3934, 34 Stat. pt. 1, p. 814 [U. S. Comp. St. Supp. 1907, p. 797], and by section 1 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 conformity 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, judgments, 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 provisions necessary to give jurisdiction or to furnish suitable remedies, 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 govern the same subject 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 [U. S. Comp. St. 1901, p. 2769], 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 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 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 suitable 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 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.

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 cheating was not a crime under the ancient common law. It was first so declared in the year 1757 by St. 30 Geo. II, c. 24. Bishop on Criminal Law (3d Ed.) vol. 2, § 392. "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 broad enough to include the use of any false pretense whatever, although, as will appear later, the judges, in construing the statute,

84 C.C.A.-27

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 unchanged." 19 Cyc. 387.

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 scripta, but also statutes which had theretofore been passed amendatory of or in aid of the common law. Thus Mr. Bishop, in his work on Criminal Law (section 155) says:

"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."

And in the second edition of Cooley's Constitutional Limitations, (page 25), the author of that 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 cousisted: 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."

But 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 proposition that obtaining money or goods under false pretenses 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 under false pretenses a crime. Thus, in section 54 of title 1, pt. 1,