reasO'Jmble :diligence to:a;scertain,:concerning the loss, which justithe! submission to the jury of the issues covered by the mstrnetloru4 now under:tlonsideration,because we are not satisfied that any such exception as these instructions hn'Plycan be raised" under' any' .circumstances which have been brought to To incorporate this exception, or any exception whatever, :i8to :go beyond the letter of the contract, and put into the' ;molItns of the 'parties words which they themselves h8.:venot Ul!led. There ate circumstances under which this may be done by necessary implication; but they are of an extreme such as the!; iriterventlon .of war .prohibiting a suit by one party against the other, or an injunction from some court accompliilliing the same' prohibition, or the absconding or absence of .the' Pllrty against whom the claim is to be made. Very likely an exception: would' arise, if there walJ an' entire lack of knowl· edge' on the part of the consignee, during the entire period of limitatiott,: of the existence of anY lass or damage, when coupled with a lack Of circumstances imposing the duty of making inquiry, or for so much of the period as practically bars investigation during what remains of it, even with the utmost diligence. We do not undertake to define accurately all the possible exceptions, or to bold that there are not others, as it is not now necessary that weshduld; but 'the exception' made at the trial does not grow out Of matter of ,an extraordinary character, arising from the necessity of things, like those' which we have instanced. It involves only circumstances transpiring in the ordinary course of transactions, and which, therefore, IDust be assumed to have been anticipated and met by the, express stipulation which the partiesb&ve agreed on. We are therefore of the opinion that, as the case stands, the plaintiff in error mnst prevail on its exception to the refusal· of- the learned judge to direct a verdiot for it on the ground that it appeared that the plaintiffs below did not bring their action for the loss within three montha after it occurred. Judgment· reversed. New trial. ordered.
,Ex parte HART. (OtrMllt Oourt, D·. Maryland. January 15, 1894.)
f!dg·. 'Which,the consIgnees had" .· or touching their 'exercIse ot
INTERSTATE EXTRADITION-INFORMATION AS AFFIDAVIT.
An intormation stating tacts on which it charges a crime, Ilworn to by a prosecuting attorney betore a notary' public or the clerk ot the court, and tih'd in court, having on its back the names ot witnesses at the time ot flUng, on Which the court orders the arrest ot the aecused, meets tlJe requirement in Rev. St.1 5278, ot "an aftldavit made betore a magistrate" charging the crime. ' The aCCWledlD. a case ot interstate extradition should not be discharged because it may be doubtful whether, on the tacts stated in the application tor the requisition, the transaction complained ot constituted a crime, where the queStioD involves the coIIBtruction ot 8tatutes ot the lltate d&o manding him.
.. BA1d:lIl-SUFFICIENOY OF FACTS CHARGED.
At lAlw. Petition of Samuel H. Hart fot liat)eas corpUL Uoner remanded. Wm. Pinkney White and Joseph White, for petitioner. John P. Poe, Atty. Gen., for the State of Maryland.
MORRIS, District Judge. Habeas corpus to release petitioner, who is held in custody under a warrant from the governor of Maryland, as a fugitive from'justice, upon the requisition of the governor of Washington, to be conveyed to the state of Washington, to answer a charge of larceny, by embezzlement Section 5278 of the Revised Statutes of the United States provides that a fugitive from the justice of another state shall be delivered up by the executive of .the state to which he h3.s fled whenever the executive of. the state in which the fugitive has committed the crime demands his return 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." In Roberts v. Reilly, 116 U. S. 95, 6 Sup. Ct. 291, it was said:
"It must appear, therefore, to the governor of the state to whom such demand Is presented, before he can lawfully comply with It-First, that the person demanded is substantially charged with a crime against the laws of the state from which he Is alleged to have fied by an Indictment or an affidavit certified as authentic by the governor of the state making the demand; and, second, that the person demanded Is a fugitive .from the justice of the state, the executive authority of which makes the demand. The first of these prerequisites is a question of law, and Is always open upon the ,face of the papers to judicial inquiry, on application for a discharge under a writ of habeas corpus. The second Is a question of fact, which the governor of the state upon whom the demand is made must decide, upon such evidence '\8 he may deem satisfactory."
rn the present case there was no copy of an indictment, bUt, in lieu thereof, a copy of an information, which had been :tiled in the superior court· of Pierce county, in the state of Washington, by the prosecuting attorney of that county, and which had been sworn to by him, charging Hart, the petitioner, with the crime of larceny by embezzlement. Although in similar proceedings of interstate extradition it has been, in some cases, held that a copy of an information is a substitute for an indictment, and gratifies the requirement of the act of congress, I should hesitate to so hold. An indictment by a grand jury results from an investigation and hearing of sworn testimony by a body of jurors drawn from the whole community. At least 12 must unite in its finding, while an information may be the action of the prosecuting officer alone. Considering the great difference between them, and the distinction because of this difference which has been zealously maintained in the federal constitution, in the acts of congress, and in the rulings of the United States supreme court, I cannot think that it is a fair interpretation of the requirement to hold that a simple information may be substituted for an indictment found by a grand jury. . The substitute for an indictment provided by the statute is a copy of "an affidavit made before a magistrate of any state OJ' ter-
rli<i'y, .thaV8ing::the lpenlOn demanded with having-commltted trea· son, felony, or other crime." Does the copy of' the information sworn to byt);1e.prosec'tl-ting attorney, and certified as, by the governor of WashingtQn, meet the requirements of tl.lls clause of the law? '. ' The information sets out certain facts, and, upon these facts, charges Hart with the crime 01 larceny by embezzlement. It is sworn to by the prosecuting attorney, and.filed in court. On the back nine names are given,as witnesses examined and known at the time of flling the information. Then follows an order of the judge 'of the court, reciting the filing of the indictment found, and directingawarrant to issue for the arrest of Hart; apdthen follows the warrant of arrest, and the' return' of the sherift of Pierce county that Hart not be found in the state of Wal!!hington. I can see n08ufficient reason why this information, thus sworn to, should not "be considered as a substantial compliance with, the requirementthat there shall be produced an affidavit made before a charging the person, demanded with the crime. The same paper, properly sworn to by a private person as true, and called an "affidavit," and not an "information," would be sufficient in every particular. WhY should not the same affidavit, made by a prosecuJing officer, although called an "information," be received? It is objected that the prosecuting attorney does not swear to the existence of the facts set out on the paper, but only that he believes them to be true. : But wany, if not rhost, of .the complaints upon for crime l,l.re ordered. by magistrates, are made by which the law, who have investigated the facts, and made the oath upon the belief thus arrived at. In this case we find by the paper certified by the governor of Washington as part of his requisition that, upon this sworn information, the court in which it was filed acted and, ordered the and we find nine witnesses named as examined I1t the time it was filed. It appears to me that, treating this information, not as a substitute for an indictment, but as an affidavit, charging the person demanded with the crime,it gratifies every requirement of the law. It is urgedt;hat, as to one of the two informations against Hart, it is not sworn to before a magistrate, but before a public; and, as to the other, that it is sworn to before the clerk of the court in which it was ,filed; and that, therefore, neither was sworn to before a magistrate. But both, it appears, were produced before the judge of the court in which they were filed, and accepted as sufficient, and became part of the regular judicial proceedings by which Hart was charged with the crime before a magistrate, and that the magistrate acted upon them, and ,ordered Hart's arrest. This, it seems to me, is a substantial COmpliance with the requirement of an affidavit made before a magistrate. It is further objected thataIthough the facts averred in the information, if proved, might be sufficient to convict Hart of the crime of larceny by embezzlement under the statute of Washington, still tlle facts set out in the. applic,ati();D. to the governor for the requisition are sufficient to show that the transaction complained of
PLA.TT tJ. FmE-EXTINGUISgEB JU.NUF'Q CO.
did not· constitute that crime, but was merely a failure to pay a creditor. This has seemed to me the most difficult question presented. It involves in part a construction of the statute law of the state of Washington, and in part the legal conclusion to be drawn from the affidavit. It may be said to raise a doubt, but it is that character of doubt which, under the circumstances of this case, the courts of the demanding state should, in my judgment, be permitted to solve. The party demanded was in that state, doing business there, and it was there that the whole transaction complained of took place. He was subject to the laws of that state; and in a case of interstate extradition, where there is no special hardship, and no evidence of any sinister purpose, it is proper that the courts of the demanding state should construe their own laws, and de· termine to what transactions they apply, and the party charged remanded, unless it is clear that, upon the facts shown by the papers, he cannot properly be found guilty. The prisoner is remanded.
PLATT v. FIRE-EXTINGUISHER MANUF'G CO.' (Circuit Court of Appeals, Third Circuit.
Jar..uary 30, 1894.)
A license which has been declared forfeited by the licensor, according to the terms thereof, for breach of conditions, canrrot be restored to validity by the licensee's subsequent tender of money In payment of royalties, which tender Is rejeoted. An assignment on condition that the assignee shall not make any assignment thereof, or grant any license thereunder, vests In the assignee, untll condltlon broken, a right to sue infringers. Littlefield v. Perry, 21 Wall. 205, followed. The vaUdlty of a patent cannot be denied by one who undertakes W justify his use of It under a license.
SAME-CONDITIONAL AsSIGNMENT-ASSIGNEE'S RIGHT TO SUE INFRINGERS.
Appeal from the Circuit Court of the United States for the East· ern District of Pennsylvania. In Equity. Suit by the Fire-Extinguisher Manufacturing Company against William K. Platt for infringement of patent. Decree for complainant. Defendant appeals. Affirmed. R. A. Parker, (Jerome Carty, on the brief,) for appellant. J. Edward Ackley, for appellee. . Before DALLAS, Circuit Judge, and WALES and GREEN, Distriot Judges. WALES, District Judge. The Fire-Extinguisher Manufacturing Oompany, a corporation of the state of New York, brought suit against William K. Platt, to restrain him from the infringement of