if they had to be considered, would involve a review of the many decisions cited, especially those of the supreme court of Missouri, on the Missouri statute. The plaintiff, however, is, by the express averments of his bill, it creditor at large, without a lien or trust upon the property in question, and hence falls within the well-settled rules tha.t his demand must first be established at law; and it must also appear that he has not full, complete, and adequate remedy at law, before he can invoke proceedings in equity. His account is an open one, and it may be if tried at law, where it should be, his demand would fail, or if not in its entirety, to an extent that would reduce the same below the jurisdiction of this court. This court cannot be driven, first, to ascertain whether he has a legal demand which belongs to common-law courts, and thus, having usurped common-law jurisdiction, proceed, after giving what is equivalent to a commonlaw judgment, to enter upon the other or equitable inquiry involved. Without reviewing what are elementary authorities on this point, it must suffice to refer to Oase v. Beauregard, 99 U. S. 119, and 101 U. S. 688. It is obvious that the plaintiff in this case has full redress at law, if he has any demand against the defendants. It is sufficient, however, for the purposes of this demurrer, that he has not, under the allegations of his bill, a canse of action cognizable in equity. The demurrer will be sustained.
MCCRARY, C. J., concurs.
Extradition of WADGE.
(District GOUl·t, S. D. New York. March 27,1883.)
ExTRADITION-AUTHENTICATION OF DOCUMENTS.
The authentication of documents in extradition proceedings, which would be received" in similar proceedings" in the demanding country, when aided by oral proof of handwriting, and by proof showing the purpose for which they are issued, is sufficient under seotion 5 of the act of August 3, 1882.
2. SAME-TREATY WITH GREAT BRITAIN.
Under the treaty with Great Britain, the latter is entitled to extradition on evidence of the offense sufficient to justify commitment here. The accused, though entitled to examine witnesses in his defense, is not entitled to a full trial here.
It is not the practice- before committing magistrates to receive the deposi-
tions of foreign witnesses taken abroad on the part of the defense.
, · therefore, that the commissioner, in extradition proceedings, nghtiy refused an adjournment applied for by the him to obtain the deposi. tions of witnesses in his defense from'the country of the demanding ment, and that his refusal was not such an abuse of judicial discretlon as to be remedied by habeas CQl'pus. 4. 'l'RIAL-ACT OF AUGUST 3, 1882, CONS'l'R£!ED. The,word "trial," in lleetion 3 of the 3ct of Al1l\'ust 3, 1882, 'must he confined tlxistlDg to such a preliminary11earing only aswas alread,}" allowable under practice.
F. F. Marbury, for the British government. L. F. Post and E. T. Wood, for accused. BROWN, J. The prisoner having been held for extradition, under the treaty with Great Britain, on a oharge of forgery, has been brought 1:lefore me on habeas corpus and certiorari. The authentication of the documents excepted to is made in the exact language of the statute of August 3, 1882, § 5, and by the proper officers, and the signature of the police magistrate.is also verified by oral proof. It is likewise shQwn that the documents were authentioated for the purpose of being used in these extradition proceedings. From the oral evidenoe, therefore, in connection with the authentication, the intention is clear to certify that these documents are such as would" be received in similar proceedings in the demanding oountry; and that is sufficient. In re Henrich, 5 Blatchf. 414, 424; In"e Farez, 7 Blatchf. 345, 353;ln"e Fowler, 18 Blatchf. 430; [So C. 4 FED. REP. 303.] The only other exception is to the refusal of the commissioner to adjourn the proceedings before him in order to enable the accused to procure depositions from England to establish an alibi at the time when he is charged with having uttered the forged bill. Article 10 of the treaty with Great Brit3.in (St. at Large, "Public Treaties,"etc., 320) provides for the surrender of the person accused "upon such evidence of criminality as, according to the law of the place' where such fugitive or person so charged shall be found, would justify his apprehension and commitment for trial if the crime or offense had there been committed." According to the practice here, before committing magistrates, (2 Rev. St. N. Y. -708, §§ 13-'-20; N. Y. Crim. Code, §§ 188-221; In re Farez, 7 Blatchf. 345, 357,) as well as by the provisions of section 3 of the act of August 3, 1882, (c. 378,) while it is the duty of the magistrate before whom extradition proceedings are pending to take such evidence as may be offered on the part of the accused, and to allow v.15,no.12-55
him it s:ems, to me ,clear tpat this caJ;lnot e.mbraC.l? a!l ,ot hIS part, an mdeftmte post· ponemenko.f the.proceedingsfor the purpose of obtaining testimony upon commission, or by deposition, as regards the commission of the crime alleged, from foreign countriM;' and especially from the ver.y country which is for trial there. If this were recognized asti:t'e' legal right of the 'accused in extradition proceedings, it would give him the option of insisting upon a full hearing and trial of his case here; and that might compel the demanding government to produce all its'evidence herB, bOth direct and rebutting, in order to meet the defense-thus gathered from every quarter. ,The l'eault would, be ,thatiheforeign government,. though entitled' by: the the treaty to the extradition of. the' accused for the pUTp<ilS8 oliatrial whel'ethecrime w8iscommiUed, would be compelled to,go into·a full trial· on the nierits in,a foreign couniry, under all the dis· aav'i:mtages'msuch.a situatiolllf,' a.nd could notohtain· extradition until after it had procured It conviction of the :aocused upon afu.ll and sub· stantial trial, here.' This' would' be in plain contravention of the intent ,and meaning of the'extradition treaties; which are designed to secure atrial in the, country wheret46m'ime was committed; through the ex'tradition of the accused; 'uponsmeient proof, according to our law, In. re Fm'ez, 7 BIatch£. 359. Nor is to' justify a commitment there any warrant, so far as I 8lIll8Ware, according to the law orthe practice before committingmagistrafesin this state, for receiving testimony by commission or by tbadepositions of foreign witnesses taken abroad; all the provisions. of the law and statutes, as above cited, contemplate the production 10£ the defendant's witnesses in person before the magistrate, for examination by him. The phrase in section 3 of the act of August 3, 1882, "that he" (the accused) "cannot safely go to trial without them," (witnesses,) cannot be construed as giving a right to a full trial in violation of treaty stipulations; but it must be confined to such a preliminary hearing only aswaB alreadyaUowable under the existing practice, viz., such as is appropriate to a hearing having reference only to a commitment for future trial. The evidence of criminality in this case was sufficient. There is no question as to the commissioner's jurisdiction. The determination of questions of adjournment, like other questions of practice, belong properly to the discretion and judgment of the commissioner. In re Macdonnell, 11 Blatchf. 79, 100, 170.· His decisions on such questions cannot be reviewed on habeas corpus, unless they amount to lit
cleitr denial of a:legal right through all1anifestabuse' of 'discretion. President v. Patchen, '8 Wend.4:7,64:\.. That is riot, the case His judgment in declining to postpone these proceedings ,after they had been pending 11 days,' for the purpose of obtaining tions from witnesses in England; w.stea.aJof remitting the to his trial thera,' where these witnesses ooilld' be produced inpersori arid their credibility examined, or in rebuttal oonvenieritly ob.. tained, was, in my opinion, proper and' just. To have allowed deposition!! and a postponement of, the proceedings ulitil they could be takeri and produced here, would, -it se'ems tome;, involve gard of the pIa-in meaning intention of the treaty. The writ of habeas corpus is therefore dismissed, alid the prisoner remanded.
Affirmed on appeal to the U nited cil'cuit court.
PAOIFIO EXPRESS CO.'
(Di8trictGolfrt, D. Kania"., A.pril Term, 1883.)
ExPRESS COMP...NY-FAILURE TO DELIVER MONEY.
In an action against an express company for the loss of money delivered to it, to be carried to redelivered at a c.ertain place, it is only necessary to prove the delivery of tIle mdney .to the company and its failure to redeliver the same.
SAME-BURDEN OF PROOF.
In such a case the burden of proof rests upon the plaintiff, and he has toestablish by a preponderance of evidence that the allegations in his petition are true.
JURY JUDGES OF CREDmILITY OF WITNESSES-TESTIMONY OF EMPLOYES.
The jury are the exclusive judges of thecredibiJity of witnesses, and in con-, sidering the weight to be attached to the testimony, of certain witnesses, they may take into consideration the fact that they are the employes of the party in whose behalf they are testifying.
4, SAME-CIRCUMSTANTIAL EVIDENCE,
If circumstantial evidence preponderates, or overthrows or overcomes, in the opinion of the jury and in' their judgment, the direct positive testimony of witnesses, they have the right to take that kind of evidence and give it all the weight it is entitled to.
J. R. Hallowell, U. S. Dist. Atty., for plaintiff. Everest <t Waggener, for defendant. FOSTER, J., (charging jury orally.) This as presented by the
evidence, is essentially one resting npon facts, and upon the facto as