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it is reasonable and natural to presume, must have pay over to the paying teller all moneys, cheques, been the same with respect to both descriptions of drafts, orders, &c. received by him from depositors, to property, and there can be no doubt that a bequest the end that the same might be collected by the payof all that a testator may possess in the funds would ing teller, and converted into money by him, and apbe a specific bequest of all his funded property; the plied, with the other moneys received, so far as might rule being, that the legacy is not the less specific for be necessary, to the payment of drafts and cheques being general. The true test by which to try whe-drawn upon the bank. It is also the duty of the payther a bequest is or is not specific, is to inquire what ing teller, at the close of each day, to deposit the would be the result if there had been pecuniary be- residue of moneys not so applied, in the vaults of the quests with a deficient fund, or a necessity for a sale corporation for safe keeping, after the amount of the for payment of debts." same had been entered to the credit of the paying teller in a book of accounts, called "the first teller's proofs;" in which it was his duty to enter, at the close of each day's business, his daily receipts and payments in separate columns. All moneys, securities, &c. deposited in the vaults were under his control, and in his custody, and he was solely responsible for their safety. Before and upon the 28th August the prisoner, as paying teller, had received large sums of money, bills, &c., and on the evening of that day he complained of being ill, and requested the receiving teller to undertake his (Windsor's) duties for the next few days. He then handed over to the receiving teller his "first teller's proofs," in which was the following entry:"Vault, 207,098 dollars. Reserve."

Therefore, as to the Wheal Agar shares, the bequest is clearly specific, and the sound conclusion is, that the three bequests being mixed in one gift, they are specific also. The testator having exactly the amount of West Basset shares and Devon Great Consols, deals with them by giving the identical funds; and he bequeaths the Wheal Agar shares, with a gift over of the remaining ones, in a different direction. The case is not free from doubt, but I hold these gifts to be specific, and the case must go back to chambers, with that direction.

Note for reference-Wms. Exors. 1047.

COURT OF QUEEN'S BENCH.

EASTER TERM.

The prisoner never returned to his duties, and shortly afterwards it was discovered, upon examination, that the above entry was false, there being, in specie alone, a deficiency amounting to 30,000 dollars. A warrant

[Before COCKBURN, C. J., BLACKBURN and SHEE, JJ.] was thereupon issued in New York for his apprehen

Re WINDSOR.-April 27.

Habeas corpus-United States of America- Extradition of criminals-6 & 7 Vict. c. 76, 8. 1.

sion, upon a charge of having made false and fraudulent entries in the book of accounts kept by the bank, a moneyed corporation within the State of New York, whereby the said bank was defrauded of the sum of By a treaty between England and the United States of in such case made and provided; and that he had com200,000 dollars, and upwards, contrary to the statute America, it was agreed that persons charged (inter mitted the crime of forgery. By this time he had alia) with forgery, in either country, and seeking an sailed for England, whither he was followed and arasylum in the other (to which treaty effect is given by rested. On the 3rd February last he was committed sect. 1 of the 6 & 7 Vict. c. 76), should, upon requisition, by a police magistrate to the custody of the keeper of be mutually delivered up. By a statute of the State of the house of detention at Clerkenwell, with a view New York it is enacted, that "every person who, with of his being delivered over to the United States' auintent to defraud, shall make any false entry, &c. in any thorities, in pursuance of the Extradition Treaty bebook of accounts kept by any money corporation within tween England and the United States, and of the 6 & this State, &c., shall, upon conviction, be adjudged guilty 7 Vict. c. 76°, passed to give effect to such treaty. of forgery in the third degree:"-Held, that a person The act, in pursuance of which the warrant for the offending against the said statute was not guilty of for-apprehension of the prisoner was issued, is contained gery, within the meaning of the Extradition Treaty, nor in the revised statutes of New York, fourth part, and of the act passed to give it effect, and could not, therefore, be surrendered on requisition.

To a writ of habeas corpus delivered to the keeper of the house of detention at Clerkenwell, commanding him to have before this Court the body of Charles Windsor, together with the day and cause of his taking and detainer, the said keeper returned, that the prisoner was in custody, under a magistrate's warrant of apprehension and remand, on a charge of having, "on the 28th day of October last past, within the jurisdiction of the United States of America, committed the crime of forgery, in this, that he, the said Charles Windsor, did feloniously, and with intent to defraud the Mercantile Bank in the city of New York, make certain false and fraudulent entries in the books of accounts kept by the said bank, a moneyed corporation within the said State, whereby the said bank was defrauded of the sum of 200,000 dollars, contrary to the statute of the said State of New York in such case made and provided."

It appeared from the affidavits, that the Mercantile Bank of New York is a moneyed corporation in that city, and that the prisoner had been employed in the service of the corporation as "paying teller." There is also another officer in the service of the corporation, called "the receiving teller," whose duty it is to

is intituled "An Act concerning Crimes and Punishments, Proceedings in Criminal Cases, and Prison Discipline," and was passed on the 10th December, 1828 (cap. 1, tit. 3, art. 3). By sect. 5 it is enacted as follows:-"Every person who, with intent to defraud, shall make any false entry, or shall falsely alter any entry made in any book of accounts kept by any moneyed corporation within this State, or in any book of accounts kept by any such corporation or its officers, and delivered, or intended to be delivered, to any firm dealing with such corporation, by which any pecuniary obligation, claim, or credit shall be, or shall purport to be, discharged, diminished, increased, created, or in any manner affected, shall, on conviction, be adjudged guilty of forgery in the third degree."

M'Mahon (Edward Clark with him), for the prisoner. The prisoner is entitled to his discharge. It is clear that the crime charged against the prisoner is not forgery, by the law of England nor by the geIneral law of the American Union. The utmost that can be said is, that it has been declared to be forgery by the law of one particular State. This is, in fact, a charge of embezzlement, and to such the provisions of

* See the material sections set out at length in Re Ternan (ante, p. 34).

sect. 1 of the 6 & 7 Vict. c. 76 (the Extradition Act) was, that this Court had jurisdiction to issue a writ of do not apply. A crime, to come within the terms of habeas corpus to the keeper of a gaol in Canada, notthe section, must be one which is regarded as such by withstanding that an independent judicature had been the mutual consent of the two nations. [Cockburn, there established. [Cockburn, C. J.-Your difficulty C. J.-Where by means of what I may call artifi- is, that a statute cannot so operate as to constitute cial legislation on the part of the high contracting a thing that which it is not. Suppose a statute parties, a particular crime is brought within a cate- to enact, that henceforth picking pockets should be gory of offences to which it does not properly and manslaughter, it would not, therefore, become so. It naturally belong, it certainly seems difficult to hold may even be questioned whether the New York sta that the act applies.] In 1 Ortolans Règles Interna- tute ever designed to transform such a crime as the tionales et Diplomatie de la Mer, it is said, "Le com- one under consideration into forgery; it simply says, mandant ou même le capitaine marchand doivent re- that a person convicted thereof "shall be adjudged fuser de recevoir ceux qui se presentent ainsi, lorsqu'il, guilty of forgery in the third degree." This may se agit d'individus condamnés ou poursuivis pour des merely mean that he shall be so punishable.] crimes communs qui violent la morale universelle, qui M'Mahon was not heard in reply. sont crimes dans tous les pays: ceux que le traités publics désignent fréquemment sous le nom de criminels ou de malfaiteurs. Les navires d'aucun état ne sont faites pour servir d'asile a de tels individus ; et c'est un devoir pour les nations de ne mettre a cet égard aucun obstacle au cours de leur justice respective," &c. In Wheaton's International Law, p. 236 (edition of 1863), it is said-" A State should never authorise the extradition of its own citizens or subjects, or of persons accused or convicted of political or purely local crimes, or of slight offences, but should confine the provisions to such acts as are by common necord regarded as grave crimes." [He also cited 1 Phillimore's Commentaries on International Law, 413, and Anderson's case (7 Jur., N. S., 122).]

H. S. Giffard, Q. C., and Poland, for the Crown.The crime charged against the prisoner is one of forgery, by the law of both nations, and therefore within the treaty. The entries by the prisoner in the book kept by the corporation, in whose service he was, were made without authority and for the purposes of fraud; and their effect was to discharge himself as having accounted for the money coming to his hands, and to afford evidence against the corporation of the amount in their hands. In Reg. v. Hart (1 Moo. C. C. 486) a person having authority to fill up a blank acceptance for a certain sum only, and filling it up for a larger sum, was held guilty of forgery. [Blackburn, J.-The entry made by the prisoner in the book simply states a falsehood; how can that be said to amount to forgery? Cockburn, C. J.-To constitute forgery, the document must purport to be the document of some other person who is intended to be made chargeable thereby. Shee, J.-All that it amounts to is, that the prisoner makes a written misstatement to his employers.] At all events, it is clear that the prisoner is charged with forgery by the law of the State of New York; the crime is in its very nature a technical one, and the parties to the treaty must be taken to have been mutually acquainted with the state of the law in each country at the time when the treaty was made. It was held in Re Ternan and Others (ante, p. 34), which was a charge of piracy, that the statute had reference not to the piracy jure gentium, but only to such acts as are constituted piracy by the municipal law of the United States. [Blackburn, J.-There the case turned upon the question of exclusive jurisdiction. The treaty is with the United States generally; how can we regard as forgery that which is so only by the law of one particular State?] It never could have been intended that all the constituent States of the American Union, and the three kingdoms forming the United Kingdom, should be in exact accordance as to their definition of any particular crime, the subject of the treaty. The question must be determined by the lex loci. Suppose the prisoner was at this moment in New York, he would in such case be triable for forgery, and that being so, the case is within the treaty. Re Anderson, referred to above, does not apply. All that was there decided

COCKBURN, C. J.-We are called upon to put a construction upon the 6 & 7 Vict. c. 76, the statute n lating to the extradition of criminals who have committed certain offences in the United States, and why being found in this country, their surrender has bee demanded by the American Government. Amongst the offences enumerated in the act is "forgery;" and in this particular instance in which the application for extradition is made, it appears the accused was guilty of making false entries in a book kept in their way of business by a moneyed corporation of the city of New York, and in which it was his duty, as one di the clerks in the employ of the corporation, to keep a account of moneys received by him on their account There is no doubt but that the accused made false entries, and that he did so with a fraudulent purpose: but I think it quite clear, for reasons given by the different members of the Court during the argument, that the offence cannot be held to amount to the crime of forgery by the law of this country; and I think, moreover, that neither by the general law of the United States, which in the aggregate corresponds with ours, would the circumstances support such a charge. If, then, the prisoner have committed the crime of forgery, it must be forgery according to the local Legislature of New York, and we have to deter mine whether the commission of such an offence brings the case within the meaning of the Extradition Act so as to render it obligatory upon the Government of this country to surrender him upon demand made by the Government of the United States. I am of c nion that the case is not within the Extradition At and that the only true construction of that act is, that the terms used in specifying the offences in respect of which criminals are to be mutually surrendered, are to be taken as applicable only to offences which have some common element in the Legislation of the t countries. But where the Legislature of one or the other of the countries, parties to an extradition treaty, and, à fortiori, where a component part of one of such countries only thinks proper to constitute something s particular offence which is not so by the general lawf both nations, the case is not thereby brought with the meaning of the statute. Here, by means of what I may term artificial legislation, a certain crime diff ing from forgery is classed under that head of offences I think we must interpret the statute according t what may be taken to be the general intention of both the parties to the treaty, but I cannot agree that it was incumbent on this country to go into an tha borate inquiry as to what had been constituted for gery by each individual State of the American Urica, This, I take it, was not done, nor can we for a ment assume it to have been done. The terms of the statute, then, being construed according to the ral intention of the contracting Powers, it appears one particular State, that of New York, has declared to ta forgery that which by the general law of the United States and of this country is not forgery, and has thus

21

entirely departed from the meaning of the word in its ordinary acceptation. That being so, the case is not one in which the Government of this country can be properly called upon to surrender the offender in question, and we have no option but to order his discharge.

BLACKBURN, J.-I am of the same opinion. The duty of this country with respect to the surrender of criminals is derived solely from the statute, which does not include fugitives of all descriptions, but those only who have committed the crimes therein enumerated. [His Lordship read that portion of the statute specifying the offences.] Now the real charge against this person is, that being a clerk in the employ of a certain corporation, he has embezzled certain of the moneys of his employers, and that he made false entries in a book kept by the corporation for the purpose of concealing his fraudulent conduct. The entries, however, false and fraudulent as they were, do not constitute forgery, which crime consists in the making of a false instrument, which purports to be what, in fact, it is not. A simple lie reduced to writing does not thereby become forgery. It is true, that by the peculiar law of the State of New York, an offence of this kind is declared to be forgery in the third degree, and under that law, no doubt, he might be treated accordingly; but then arises the question, does the fact that the Legislature of New York has made this offence forgery, so invest it with the character of that crime, as generally understood, as to bring it within the terms of the treaty? I think not. The high contracting parties have entered into an agreement which must be interpreted according to the ordinary rules employed in the construction of contracts; and when, as in this case, we find two parties having a language in common speaking of the same thing, and using the same expressions to designate that thing, I think we ought not to include under a particular head of crime an offence not properly belonging thereto, but which one of the parties to the treaty has thought proper to classify under that head. I think, therefore, however desirous this country may be of rendering up offenders, that this is not a case in which we should be justified in interfering, and that the prisoner is entitled to his discharge.

SHEE, J.-I also think we have no option but to discharge the prisoner. A demand of the surrender of a criminal under this treaty must be founded on an offence satisfying in all material particulars the definition of it according to the laws of both the contracting parties. Every word of designation employed in the treaty must be taken to be the word of both the parties who use it, and as used in the same sense. Now, here, we have not to deal with the case of a person making a spurious document, or altering an existing one so as to bring himself within the law as relating to forgery; and the offence not amounting to forgery (excepting so far as it has been declared to be such by one particular American State), it follows that the prisoner is entitled to his discharge. — The prisoner to be discharged accordingly.

[Before COCKBURN, C. J., BLACKBURN and MELLOR,
JJ.]

REG. v. THE INHABITANTS OF EAST STOKE.-May 9.
Indictment-Removal by certiorari―Recognisance-Costs
-16 & 17 Vict. c. 30, ss. 5, 6, and 7.
Where an indictment was removed into this court by cer-
tiorari, at the instance of the prosecutor, who entered
into recognisances conditioned to prosecute the same
"with effect"-Held, that this was not a compliance
with sect. 5 of the 16 & 17 Vict. c. 30, which requires

that the recognisance in such case shall be acknowledged with the condition "that the prosecutor shall pay to the defendant or defendants, in case he or they should be acquitted, his or their costs incurred subsequent to such removal," and that the prosecutor was, therefore, not liable to costs; and that the Court has no power under sect. 6 to order costs to be taxed against the prosecutor. If recognisances have not been duly entered into, the remedy is provided by sect. 7, which, in such case, enables the Court to which the writ has been directed, to proceed to the trial of the indictment, treating the certiorari as a nullity.

Rule calling on the defendants to shew cause why the side-bar rule obtained by them to tax their costs against the prosecutor, George Romaine, should not be set aside, on the ground that the defendants were

not entitled to costs.

The prosecutor had preferred an indictment against the defendants at the Dorchester quarter sessions, for the non-repair of a highway, which indictment was, at the instance of the prosecutor, removed by cer

tiorari to this court.

tered into recognisances in the sum of 250, the conUpon obtaining the certiorari the prosecutor endition being, "That if the said George Romaine do and shall prosecute with effect, in the Court of Queen's Bench, a bill of indictment preferred against the inhabitants of East Stoke, for the non-repair of a highway, and do and perform all such orders and things as the Court shall direct, then the said recognisance to be void." On the trial, which took place at the Dorchester Spring Assizes, 1864, the defendants were acquitted on the ground that the road in question was not a highway. The defendants then obtained a side-bar rule for the taxation of their costs, whereupon the present rule was obtained; against which

Kingdon shewed cause.-The objection raised by the prosecutor is, that the recognisance is not in the statutory form, being conditioned to prosecute" with effect," instead of, as it ought to have been, under sect. 5 of the 16 & 17 Vict. c. 30°, "to pay to the defendant or defendants, in case he or they shall be acquitted, his or their costs incurred subsequent to

*The 16 & 17 Vict. c. 30, s. 5, enacts, "That whenever any writ of certiorari to remove an indictment into the said

court shall be awarded at the instance of a defendant or de

fendants, the recognisance now by law required to be entered

into before the allowance of such writ shall contain the further provision: that the defendant or defendants, in case he or they shall be convicted, shall pay to the prosecutor his costs incurred subsequent to the removal of such indictment; and whenever any such writ of certiorari shall be awarded at the instance of the prosecutor, the prosecutor shall enter into a recognisance (to be acknowledged in like manner as is now required in cases of writs of certiorari awarded at the instance of a defendant), with the condition, that the prosecutor shall pay to the defendant or defendants, in case he or they shall be acquitted, his or their costs incurred subsequent to such

removal."

Sect. 6. "The costs herein before respectively mentioned shall be taxed according to the course of the Court of Queen's Bench; and for the recovery thereof the persons entitled of the person or persons at whose instance the writ of certhereto shall, at the expiration of ten days after demand made

tiorari was awarded, and on oath made of such demand and

refusal of payment, have a writ of attachment granted against

him or them by the Court of Queen's Bench for such contempt; and the said Court shall and may also order the recognisance to be estreated into the Exchequer."

Sect. 7. "If the person or persons at whose instance any writ of certiorari shall be awarded shall not, before the allowances thereof, enter into such recognisance as is hereinbefore provided, the Court to which such writ may be directed shall and may proceed to the trial of the indictment, as if such writ of certiorari had not been awarded.”

BLACKBURN, J.-I am of the same opinion, and share in the regrets of my Lord at the conclusion to which we are bound to come. Sect. 5 provides for a recognisance conditioned for the payment of costs to the defendants in case of his acquittal, and instead of this, the prosecutor has entered into a recognisance to prosecute" with effect," which is another and entirely distinct condition. I thought at first that, under sect. 6, this Court might have power to tax the costs, independently of the recognisance, taking the words costs hereinbefore mentioned" to mean costs for which the prosecutor should and ought to have given recognisances; but, on consideration, I think the words of this section will not supply the defect, and that such costs only are given as are incurred after the recognisances have been entered into, and are in- * See The Sheffield United Gas-light Company v. The cluded therein. It is to be regretted that this defect | Overseers of Sheffield (9 Jur., N. S., 623).