FEDERAL REPORTER.
property, .Baldwin was bound to hold it, not under the orders of the plaintiffs, as in the case of an ordinary execution, but under the orders of the court, and have it forthcoming when demanded for execution. ij:is failure to do this was a neglect of. his. official duty, whereby Rice acquired a right of action against him and the sureties on his official bond. The sur:render of the attached property to Mitchell, by direction of Wilson and Wolf and the defendants, was of course a protection to Baldwin against them. Rice is entitled to such dl¥Uages as will indemnify him for Baldwin's neglect of offi. cial duty. : Whether Rice is entitled to recover nominal damages only, or the amount of his debt, if the value of the attached property was enough to pay the debt, or an amount equal to what his pro rata share would have been had there been no agreement to dismiss and the property had been held for execution, need not now be decided. It is Bufficient, in overruling the demurrer, to say that Rice had a right of action.
Ex parte
LANE.
(District Oourt, D. Michigan.
January 31, 1881.)
1.
·ExTRADITION-CoMPLAINT AND WARRANT.
A complaint and warrant in an extradition CaRe AhouJd show upon their face that the commissioner issuing the wunuut III dUly empowered to act in cases of that description.
S.
8.AME-HABEAS CORPus.
QUa/re, whether the court, upon habeas corpus, would be bound to treat a warrant defective in this particular as null and void.
a.
CANADA-JUDICIAL NOTICE.
The court may take judicial notice of the fact that the dominion of Canada is a British possession. 4. COWLAINT-COl\D{ON-LAW OBTENCE.
A complaint charging an offence at common law is good, notwithstanding it concludes" against the farm of the statute," etc. In such case DO -proof of the foreign statute is required.
EX PARTE, LANE.
85 IS
5. SAME-INFomrATION AND BEI4EF··
A complaint made simply upon and pelief defective, and gfves the commissioner no jurisdiction: , 6. 8AME-SAME-OFFICfAL'REpRESENTATIVE.
fatally
If the person making the compla.int has no personal knowledge of the facts, it should appear that he is a representative of' the foreign government, acting in an official capacity, or he' should produce an indictment against the party charged, or depositions tending to show his guilt, or at least set forth with particularity the sources and.'dctails of his information, that it may appear that the arrest of' the 'party 'is sought upon something more than a rumor or suspicion.of.llis 'guilt. 7. SAME-AMENDMENT BY COMMISSIONER-OERTIORARI.
The commissioner has no power to amend the complaint Qr warrant, or to supply defects by his certificate, after the case is closed and a writ of cel'ti!ll'al'i is served upon him to produce the record of his proceedings. .
This was a writ of habeas corpus and certiorari to review the proceedings had before Darius J. Davison, United States commissioner, with refe.rence to the application of the Canadian authorities for the extradition of the petitional', Lane. Under the writ of habeas corpus the marshal returned that he held the prisoner in custody by virtue of a mittimus from the commissioner to await the order of the secretary of state. To the certiorari the commissioner returned a tecord of the proceedings in the cause. A. E. Hawes, for petitioner. J. W. Finney, Asst. U. S. Dist. Att'y, for prosecution. BROWN, D. J. Several objections were taken to the regularity of the proceedings before the commissioner, which I proceed to consider in their order. 1. That the complaint nowhere recites the appointment of the commissioner, nor that he is empowered under the laws of the United States to entertain complaints or issue warrants in extradition cases. The complaint purports to be made by Alexander B. Baxter, of Chatham, in the province of Ontario, "who, being duly sworn, saith, that on his best knowledge, information, and belief," etc.; and purports to be sworn to before D. J. Davison, United States dition commissioner for the eastern district of· Michigan
36
The commisAioner, however, certifies that the word "extradition" was interlined after the conclusion of the testimony, and without the knowledge or consent of the petitioner. I doubt the power of the commissioner to make this amendment at the close of the proceedings, and after his attention had been called to the defect. If this can be rightfully done, then almost any defect in the proceedings might be amended after the attention of the commissioner had been called to it. For the purpose of this case, therefore, I will treat the com· plaint as it stood before the amendment was made. I think that in a complaint before a commissioner, and in the subsequent proceedings before him, he ought to be described as a commissioner of the circuit court of the United States, specially authorized by said court to take cognizance of applications for extradition, or by words of similar import, since he is not authorized by virtue of his general appointment as commissioner of the circuit court to assume jurisdiction of this class of cases. Rev. St. § 5270. In the case of Be Farez, 7 Blatch£. 345, objection was taken to the proceedings on the ground that the warrant did not showthatthecomm,issionerwas appointed by the court to issue the particular warrant, but it did appear upon the face of the warrant that he was appointed to issue warrants in all cases of extradition falling within the acts in question, and it was held sufficient. It had been previously held, however, in a case against the same party, that a warrant which did not show upon its face that the commissioner issuing it was authorized to act in extradition cases was void. Re Farez, 7 Blatchf. 34; see, also, In Be Macdonnell, 11 Blatchf. 86. In the case of the United States v. Stowell, 2 Curtis, 153, an indictment for Obstructing the marshal in the service of warrant for the rendition of Anthony Burns was quashed, upon the ground that the warrant set forth simply that it was issued by a commissioner of the circuit court, without averring that he was such a commissioner, as was larly described in the act of September, 1850; and it was further held that such defect could not be aided by referring
EX PARTE LANE.
37
to the records of the court showing that the commissioner was authorized to issue the warrant. Hence, I think it should appear that the person taking the complaint and issuing the warrant is not only a commissioner of the court, but is one authorized to act in extradition eases. Ishould be loth, however, to hold that the proceedings were void upon this account, since I am by no means certain but that the court, upon an application for discharge upon a writ of habeas corpus, would be bound to take judicial notice of the fact that the commissioner had been appointed for this purpose. If So third person had been indicted for resisting a marshal in the execution of this warrant, I should have no doubt that the decision of Justice Curtis would apply, and that it would be necessary to make a more particular averment in the indict· ment. Without expressing a more decided opinion upon the effect of the omission in this case, I proceed to the consideration of the next objection. 2. That although the complaint charges that said Lane committed the crime of forgery, and of uttering forged paper, at Rondeau, in the province of Ontario, there is nowhere in the proceedings any averment or proof that the province of Ontario is within the territorial domain of Great Britain. There is nothing in this objection. Undoubtedly, it should be averred and proved that the town within which the offence is charged to have been committed is within the province of Ontario; but I think the court may take judicial notice of the fact that this province is a British possession. There has been a good deal of discussion in the books as to what facts may be within the judical cognizance, but I think a court may safely take notice of such facts as are within the knowledge of every intelligent person in the community. There is scarcely a school-boy in the state who does not know that the great dominion that lies upon the other side of the Detroit river is a part of her majesty's possessions, and it is asking too much of a judge to shut his eyes to this fact. Peyroux v. Howard, 7 Pet. 324, 342; The Apollon, 9 Wheat. 374.
38
3. Objection, is also taken upon the ground that the offence is charged to have been committed "against the statute in such case made and provided," and that there is no proof of any statute in the province of. Ontario punishing the crime of forgery. It soems to have been formerly the law that where an 9ffence was punishable at common law only, and yet the indictment averred it to have been done against the form of the statute, it should be quashed. Later authorities, however, hold that this is mere surplusage, if the offence be in fact a common-law crime. 1 Bishop on Criminal Proceedings, § 349. Whether a party could be extradited for a forgery under a special act of the province of Ontario, which was not a forgery at common law, it is unnecessary here to determine. r have no doubt, however, that where the offence committed is a forgery at common law, the foreign government has a right to take proceelings for extradition. It may be safely assumed that thore is a provincial statute punishing the common-law crime of forgery. If, however, the party were shown not to he guilty of a common-law forgery, it would be incumbent upon the prosecution to show a statute covering the offence. 4. The complaint is made upon information and belief, and in this respect r think it is fatally defective. The statute requires a complaint upon oath, and I think it is not satisfied by a simple allegation that the complainant is informed and the petitioner to have committed the offence, or, in the language of this complaint, that upon the "best knowledge, information, and belief" of complainant, defendant is guilty. A person may swear that he has reason to believe, and does believe, that a person has committed a crime, although his reasons may amount to little more than mere suspicion, without laying himself open to a charge of perjury. This, however, is not a complaint upon oath, within the meaning of the statute. The personal liberty of a citizen ought not to be interfered with upon an allegation so lOOSely framed. It is very singular that there are so few cases in which the requirements of a proper complaint upon oath arO
EX PARTE LAND.
discussed, but I think, as a general rule, a. mere that the complainant has reason to believe, and does believe, is insufficient. Such was the ruling in Ex parte Smith, 8 McLean, 135, and such, I think, is the inference to be drawn from the langu;1ge of the court in Washburn V'. People, 10 Mich. 372, in which a distinction is drawn between complaints, and jurats of a prosecuting attorney attached to informations made after preliminary examinations before a magistrate. This is certainly the rule in analogous cases. Thus, affidavits upon information and belief alone are insufficient to authorize the arrest of a fraudulent or absconding debtor. Smith v. Luce, 10 Wen(i. 257; Matter of Bliss, 7 Hill, 187; Proctor v. Prout, 17 Mich. 473. . . In cases of injunctions, the rule is that the materiai facts must be sworn to positively, and by aperson having knowledge of such facts. Waddell v. Bruen, 4 Edwards, Ch. 671; Armstrong v. Sandford, 4 Minn. 49. So, also, with regard to depositions att.ached to a petition for an adjudication of bankruptcy, it has usually been held that such depositions, as to the acts of bankruptcy, must be such as to constitute legal testimony; that. the statements must be of facts, ana' not the mere conclusions of witnesses; and that, as a general rule, they must be of the witnesses' own knowledge, and be stated with such clearness as to leave no doubt as to their meaning. In re Rosenfield, 11 Bank. Reg. 86; In re Hadley, 12 Bank. Reg. 366, 374. I would not undertake to say, however, that a complaint for extradition may not be made upon information and belief, for such a ruling might put it out of the power of a foreign government to obtain the surrender of a criminal in a large number of cases, without incurring a very great and unnecessary expense in so doing. For instance, in the case of Farez, 7 Blatchf.345, the complaint was made by a representative of a foreign government, in his official capacity as Swiss consul. I have no doubt that if depositions have been taken in a foreign country tending to show the accused guilty of the crime, or if an indictment has been found against him,
lO
or if the represe:qtative of the foreign government demanding his has fully informed himself with regard to the particular events by conversations with persons who wit. llEissed them, he may make a complaint upon i:qformation and but, in such case, I think he should set forth with 80me particularity the sources and details of his information, or the grounds for supposing the defendant to be guilty; in other words, it should appear that his reasons for pursuing the defendant are based upon something more than mere rumor or suspicion of his guilt. In the case under consideration, however, the complaint does not purport to have been made by an officer, nor does it give any reason why it is made simply upon his best knowltldge, information, and belief. It is true that after the wri.t of certiorari was issued and served upon the commissioner he added a further certificate to his return, setting forth that the complainant was in fact superintendent of police, and that he exhibited to the commissioner, at the time of issuing the warrant, a complaint on oath, purporting to have been made in writing before a police magistrate, charging Lane with forgery and the utterance of forged paper, as set forth in the complaint, and the warrant issued thereon; and that he was also attended by a person who claimed to be crown attorney of the county within which the offence was committed. I do not feel at liberty, however, to take notice of a certificate thus made, after the service of the writ. In my opinion, the complaint did not give the commis· sioner jurisdiction to act in this matter, and the prisoner is entitled to a discharge.
UNITED STATES
v.
THORNBUM.
41
THORNBURG.-
UNITED STATES V. WISE.
(District Oourt, S. D. Ohio. March,1881.) 1. NAVIGATION LAWS-REv. ST. t 4472-CARRYING PETRoLEUM ON PAS. SENGER VEBBELS-PRACTICABLE MODE OJ!' TRANSPORTATION. Section 4472 of the United States Revised Statutes prohibits the carrying of petroleum and other dangerous articles upon passenger sels, but excepts petroleum of a certain fire test upon routes whero . there is no other practicable mode of transportation. Held, (1) that if there is an aU-rail r.oute over which the oil nlay be carried with any profit, it is a practicable mode of transportation; (2) but if the rate of freight by rail is so high as to prevent any profit upon the sale of the oil, or to destroy the trade between·the points in question, it is not a practicable mode of transportation between those points.
Section 4472 of the Revised of the United States, under which these actions are brought, prohibits the carrying of petrOleum, naphtha, nitro-glycerine, and other explosive and dangerous articles upon passenger vessels, but excepts from the prohibition refined petroleum of a certain fire test, upon routes where there is no other practicable mode of transportation. The case of U. S. v. Thornburg is a suit for penalty under this statute for carrying petroleum on a passenger steamer from Marietta to Cincinnati, and the case of U. S. v. Wise is for carrying it from Cincinnati to Memphis. Evidence was introduced by the government to show that there was an all-rail route between the points named, and it was claimed that it was a practicable mode of transportation, while the defence sought to prove that it was not a practicable mode, by showing (1) that the rate of freight by rail was so high as to leave no profit in the sale of the oil; (2) that the rate of transportation by rail between the points named was so high as to destroy the trade in oil between these points, inasmuch as it could be secured at a less rate fXQm_ other points. . "'Reported by Messrs. Florien Giauque and J O. Harper, of the Cincinnati bar.