allegation is, "that said Bornemann-then and there being an officer of the United States having the .saJa-keeping and disbursement of public moneys, * * * did then and there knowingly, willfully, and feloniously convert and embezzle a. portion of said public moneys entrusted to him," etc. We do not regard this as a recital merely, but as a direct averment by using the participle in som.e clauses, instead of the verb, in connection with the following verb. It is the exact form given by Wharton in his Precedents of Indictments for embezzlement in each precedent found 'on page 406 et 8eq., c. 7. 'W,e held a less definite form of averment of to be good in Sharon v. Hill; 10Sawy. 635, 23 Fed. Rep. 353; and see authorities therein cited. This is the form of statementinsome of the cases cited, under the first point, and is the form of statement in the indictment..invplved in U. S. v.HtilrtiweU, 6 Wall. 392. We think the averment sufficient. The first count does not state what office the defendant held. Perhaps it is defective in that particular, as defendant ought to be informed in what particular character he is charged, but if Sp, the other counts under, the same section cover the case, as all the others allege that he was "cashier of the assistant treasurer of the United States at San Francisco, Cal.," and that "he then and there had in his possession and under his control, as such cashier, a large sum of money," etc. The fact that this money of the United States is, also, alleged to have been on deposit with the assistant treasurer does not negative defendant's possession and control in such sense as to make its appropriation an embezzlement, as claimed. He was the cashier of the assistant treasurer, and it was necessarily a parf'of his duties under the law to take charge of and handle this money. The cashier was an officer of the United States, and not s'mere servant or agent of the assistant treasurer. The court will take notice of the law applicable to his duties. U. S. v. Hartwell, 6 Wall. covers, these and all cognate points. We think all the counts lI.regood unless it be the first, in regard to which we have strong doubts, liS it is not stated what office defendant held. Let the demurrer be sustained as to the first count, and overruled as to all the others.
STATE OF TgNNESSEE t1. JACKSON. '
D. Tennessee. JUly, 1888.)
CORPus. Under Rev. St. U. S. 5278, providing that "whenever the executive authority of state or terrJtoryde:m.ands any person as a fugitive from justice of the executive authority of any state or territory to which such person .has fled, and rrroduces a copy of an indictment found, or an affidavit made before a magistrate of any state or territory charging the person demanded with having committed treason, felony, or othercrime certified as authoritative by the governor or chief magistrate of the, .state or territo'ry from whence the person so charged has' fled, it shall be the duty of the executive authority of
STATE OF TENioiESSEE V. JACKSOS.
tbestate or territory to which! such person. hIlS fled ta cause him to .be arrested r CUted· " 6.tC.. t.h6pe.r.90.11 charge.d m.nst .be a f.U.gitive. from. the state.. in ! . .. which the crime was committed. before the executive authority can be called into Rction ; arid where:he fa delivered 'Up to the' ailthorities of that state on a · requisition based on a false atlidavit:thathet. a fugitive, he will .be released' on habeG8 corp'll'.
OnPemion for IiabeasCoryus. RusseU, Titlow &: Daniel, for relator. W· .L. Eakin, for the State. KEY,J. The facts of this case are as· follows: The defendantresldeq in the city of Chicago, Ill. He sold the prosecutor a horse. The purchaser of the horse resided in Chattanooga, Tenn. The purchaser saw an advertisement in a Chicago newspaper offering the horse for sale, and the trade was completed by correspondence; Jackson remaining all the; while in Chicago,and. the purchaser in Chattanooga. The horse was shipped by rail to the purchaser, and the price remitted by mail to Jack-. son. After the arrival of the horse at his destination, and' a trial of his abilities and qualities, the purchaser claimed that the horse was worthless, and that the price paid had been obtained by false and fraudulent pretenses; and he sued out a warrant against Jackson, which was issue(); by a justice of the peace in Chattanooga. The matter was placed in the, hands of a detective, who made affidavit that Jackson had been charged with committing the crime of obtaining money by false pretenses against the state of Tennessee, and that he had fled from the state of Tennessee, and was in the state of Illinois; a:nd the governor of Tennessee made requisition on the governor of Illinois for Jackson, under the provisions of section 5278, Rev. St. U. S. Armed with these papers, the detective went to Illinois, obtained a warrant from the governor of that state for the arrest of Jackson, and arrested him, and hurried him oft' to Tennessee, had him tried before a justice of the peace, and committed to jail. Thereupon Jackson filed a petition for a writ of habeas corpus, upon the ground that his arrest and confinement are unauthorized. It is insisted for the prosecution that the mailing of the letter containing the money in the post-office here, addressed to Jackson at Chicago, was, in law, a delivery to Jackson, and that, in consequence, this state has jurisdiction, and, having such jurisdiction, and the defendant being here, no matter how, the authorities of the state have the right to retain him in custody for trial. Section 5278 provides that "whenever the executive authority of any state or territory demands any person as a fugitive from justice of the executive authority of any state or territory to which such person has fled, and produces a copy of an indictment found, or an affidavit made before a magistrate of any state or territory charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which such petsonhas fled, to cause him to be arrested and secured," etc. Accord-
ing to the provisions of this law, there must he, not only the commission of the crime, but the person charged must he a fugitive from the state in which it was committed, befolElthe executive authority can be called into action. Jackson was not a fugitive. He had not, in all his life, been in Tennessee; had never fled from it; and his case did not fall within the positive terms of this law. The oath of the detective was false, and the governors of the two states imposed upon. The whole proceeding was a fraud upon the law. If this arrest and imprisonment are to be maintained, the opportunities for wrong and abuse of this law will be great and wide-spread. Commercial transactions are largely conducted by mail and by telegraph. If the seller at one end of the line, and the buyer at the other, with the aid of detectives, in cases of dispute and controversy between them are to be allowed, under such proceedings as these, to have the citizens of one state carried to another state for trial under the false allegation that the person charged has fled, instances of oppression may not be few. It seems to me that the general government cannot stand by and see its laws so trifled with and abused. It is well settled, as I understand it, that where treaties between this government and a foreign nation provide for the extradition Of persons charged with certain specific offenses, and where extradition has been obtained upon the ground that such an offense has been committed, the person whose custody and return has been so obtained, cannot, when brought in the jurisdiction of the court, be tried for a different offense, especially if it be not embraced in the terms oithe treaty. Such a case is not altogether analogous to the one in hand, but it tends to show the good faith required between nations. Certainly the same character of faith should obtain between the executive authorities of the different states of this nation, which ih many respects are foreign to each other. It seems to me that such authority should not be held to the seizure and removal of a citizen of its state when such seizure and removal were procured by fraud, falsehood) and imposition. It is ordered that the petitioner be discharged.
CAMPBEJ,L 11. MAYOR, ETC., OF NEW YORK.
(Oircuit Oourt, S. D. New York, September 21,1888.)
PATENTS FOR INVENTIONS-AcTIONS FOR lNFRINGEMENT-REHEARING-NEWLY· DISCOVERED EVIDENCE.
Act 1839, § 7, declares that no patent shall be invalid by reason of prior sale or use, except on proof that the sale or use had been for more than two years prior to the application. In a suit for the infringement of letters patent No. 42,920, dated May 24.1864, to James Knibbs, for an improvement in steam fire-engine pumps, on application filed May 13, 1864, plaintiff, instead of disproving prior sale and lise, directed 'his .efforts towards disproving consent and allowance to the same, on the supposition then generally shared by th6 bench and bar, and recognized in the answer, that consent and allowanc6 were necejlsary to defeat the patent, and the case was determined accordingly. A sale of an engine containing the invention, which was forwarded April 28,