and the Italian consul was legally competent under the state law, he would be entitled to letters, under the statutory provision that when in such case the public administrator refused to act, any person legally competent might be appointed. But his right in preference to the public administrator was denied. (In re Logiorato's Estate, 69 N. Y. Supp. 307.) The Massachusetts supreme court decided that, under the most favored nation clause of the treaty with Russia and by referring to the treaty with the Argentine Republic, the Russian vice-consul had a right to administer paramount to that of the public administrator, in the case of a citizen of Russia who died in Massachusetts leaving personal property there, his legal heirs being in Russia. (McEvoy v. Wyman, 191 Mass. 276.) In a Louisiana case, Lanfear v. Ritchie, 9 La. Ann. 96, the Swedish consul applied for an order that he supersede the duly appointed public administrator in the possession of the estate of a deceased citizen of Sweden, whose heirs were Swedish subjects residing in Sweden. The contention was that this was guaranteed by the treaty with Sweden. The treaty then in force did not contain any favored nation clause, nor purport to give to consuls in either country the right to administer the estates of its deceased citizens. The court denied his application on that ground, and also on the ground that a treaty could not control the state courts. In Aspinwall v. Queen's Proctor, 2 Curteis, 241, the English court held that the United States consul, as such, had no right under the Act of Congress of 1792, to administer upon the estate of an American traveler who died while in England leaving property there. The court said that "the Crown is the party to see that the property of any person. dying in its dominions goes into proper hands" and that the law of the United States could not be allowed to control, even if it purported to do so.

We do not agree with the supreme court of Massachusetts and the surrogate of Westchester county, New York, in regard to the meaning and effect of the Argentine treaty. They held that the right given thereby to intervene in the possession, administration and judicial liquidation of the estate of the deceased, conformably with the laws of the country," included the right to be appointed administrator of the estate in place of the person who might be designated by the laws of the particular state to be such administrator and who had either been previously duly appointed by the local state court, or was applying for such appointment. It appears clear to us from this language that whatever right was given, it was intended to be a right which should conform to

the laws of the country, and that, in view of the well-known complex form of our government, the phrase "laws of the country," so far as the United States is concerned, means the local laws of administration and procedure of the respective states. If the right asserted is necessarily contrary to those laws, it cannot be said to conform to them. Our law declares that in the absence of next of kin entitled to inherit, the public. administrator shall take charge of and administer the estate for the benefit of the creditors and heirs. The right claimed under the treaty is that, in such a case, the consul of the country of which the deceased was a citizen shall take charge and administer; a right directly in conflict with our law. The contention of the appellant is that the only effect of the phrase "conformably with the laws of the country" is that the consul, when appointed, must administer the estate in compliance with the local law of administration. The more obvious interpretation is that the phrase qualifies the right and the method of intervention, as well as the procedure after intervention takes place, that is, that if the consul intervenes, he must do so in the manner, to the extent, and for the purposes prescribed and allowed by the laws of the local jurisdiction in which the property is situated. This is the grammatical effect of the qualifying clause.

Whether the matter in hand is the possession, the administration, or the judicial liquidation of the estate, the treaty secures to the consul only the right to "intervene" therein. The word "intervene" is here. used with reference to a proceeding in a judicial tribunal. In that connection the word has a settled meaning. The dictionaries declare that when applied to matters of law it means: "To interpose in a lawsuit so as to become a party to it." (Cent. Dic.; Stand. Dic.) Bouvier defines" intervention" at common law thus: "The admission, by leave. of court, of a person not an original party to pending legal proceedings, by which such person becomes a party thereto for the protection of some right or interest alleged by him to be affected by such proceedings." And in the civil law as "The act by which a third party becomes a party in a suit pending between other persons," citing Pothier Proces Civiles, lere part, ch. 2, S. 6, 3. (1 Bouv. Dic. Rawles ed. 1114.) A similar definition is given in our Code of Civil Procedure. (Sec. 387.)

Appellants say that the word should be construed according to its literal meaning, "to come between," and that "to come between,” in the possession and administration of an estate, means to have a preferred right to act as administrator, if it refers to a time before the appoint

ment is made, or to supersede any other appointee, if used in reference to any subsequent time. This claim is based on the assertion that an intervention was unknown in the civil law, from which it is supposed the Argentine Republic takes its system of legal procedure, and also upon the principle that in construing treaties words are to be given their popular rather than their legal signification.

The constitution of the Argentine Republic was adopted on May 25, 1853. It was avowedly modeled upon the Constitution of the United States, which it closely follows, both in general plan and in specific provisions. Its government is federal in form, with "provinces" which correspond to our states, each having power to make its own local laws subject, however, to the civil, criminal, commercial and mineral codes when such should be enacted by the national congress. (Argentine Const., Arts. 105, 108 and 67 [10], vol. 9, Senate Exec. Doc.) The treaty with this country was made in July, 1853. At that time the public men of that country must have been very familiar with the form of government of the United States and with the fact that it committed local affairs to the several states. It is not probable, therefore, that the words of the treaty under consideration were chosen with the intent to have the international agreement become a part of, and in part supplant, the laws of the states of the United States, or of the Provinces of Argentina, in matters committed solely to the states or provinces. The assertion that an intervention, as our law defines it, was not known in civil law countries is shown to be without foundation by the foregoing citation of Bouvier to Pothier, and also by the fact that our own code definition of an intervention, and that of many of the other states, is taken from the code of Louisiana. (Horn v. Volcano W. Co., 13 Cal. 69.) The procedure and jurisprudence of that state, as is well known, was derived from the Code Napoleon and from the system in use in the early Spanish American colonies, both of which are adaptations of the civil law. Justice Feld said in Geofroy v. Roggs, 133 U. S. 271, with regard to the construction of treaties:

As they are contracts between independent nations, in their construction words are to be taken in their ordinary meaning as understood in the public law of nations, and not in any artificial or special sense impressed upon them by local law, unless such restricted sense is clearly intended. And it has been held by this court that where a treaty admits of two constructions, one restrictive of rights that may be claimed under it and the other favorable to them, the latter is to be preferred.

Appellant quotes this canon of construction as decisive of the sense in which the word "intervene " is to be understood. The court in that case held that the phrase " in all the states of the Union," in the clause of the treaty with France giving citizens of France the right to inherit the property of citizens of the United States, included the District of Columbia. The subject in hand and the context indicated that the phrase was used in the most comprehensive sense, to include 'the entire country. But treaties are subject to the same rules of interpretation as other documents. The clause of the Argentine treaty relates to legal proceedings for the settlement of estates and the words used are to be given the meaning they usually have when used in that connection. The right to intervene in a legal proceeding partaking of the nature of a proceeding in rem is not usually understood to include the right to take the property from the custody of the court, or from the officer upon whom the laws of the country impose the duty of administering and distributing it. The object and purpose of the treaty would be fully met by allowing the foreign consul to represent the citizens of his country who are interested as heirs or creditors in case they are not present or otherwise represented, giving him the right to appear in court for them, either officially, or in their name, to protect their interests, and requiring that he be served with notices to them, when notice is required. The use of the word "intervene " implies an intention to give a right to the consul to appear as a party in a pending administration or action carried on by another person, and not a right to institute and carry on the proceeding himself. He has, in addition, a duty pertaining to his office imposed upon him by his own government, that of seeing to the safe keeping and proper disposition of the effects of citizens of his country who may die while traveling, or while temporarily present in the country to which he is accredited, or even while residing therein, and for that purpose, in the absence of any other representative of the deceased baving a better right, he may " intervene in the possession" of the estate, conformably with the laws of the country. The custom of nations would permit this and it may be that, if the public administrator refuses or fails to apply, the consul may petition for and receive letters to himself. as the official agent for the persons interested. But the treaty is not to be understood as giving him such right in preference to those upon whom it is devolved by the laws of the country when they are present and ready to accept its possession and discharge their duty concerning it. The theory of respondent is, in our opinion, in harmony with the spirit and

purpose of the treaty and is in accord with the obvious meaning of the language used.

The order appealed from is affirmed.

We concur:

ANGELLOTTI, J.

LORIGAN, J.

HENSHAW, J.

SHAW, J.

MELVIN, J.

UNITED STATES V. C. A. ENGELBRACHT

(United States Court for China)

October 25, 1909

This is a criminal action instituted upon information filed by the District Attorney.

The information charges that on or about June 2, 1906, in Shanghai, China, the accused, at that time Marshal of the United States 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 section 1,044 of the Revised Statutes of the United States. The section referred to reads:

No person shall be prosecuted, tried, or punished for any offence, not capital, except as provided in section 1,046, 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 laws.

To this plea-in-bar the District Attorney has filed a replication alleging that said plea is not sufficient, because the law providing for the limitation of prosecutions in the jurisdiction of China is defined in Title XV of the Consular Court Regulations for China, and not by the provisions of section 1,044 of the Revised Statutes.

Section 82 of Title XV of said Consular Regulations reads as follows:

82. Heinous offences, not capital, must be prosecuted within six years; minor offences within one.