case.

Motion to resettle was denied on the express ground that plaintiff would have abundant opportunity to move for an extension of the stay, as well as for an extension of his time before the six weeks expired. On September 12, 1888, plaintiff, desiring further time to make and file case and exceptions, obtained an order ex parte extending his time two weeks from September 15, 1888, "in accordance with the decision herein of August 4th, (sic,) 1888, and without prejudice to the stay of proceedings ordered therein." This order was duly served on defendants' attorney. Subsequently, and on September 21, 1888, after the expiration of six weeks from August 3d, judgment was entered.

The "stays" which

The plaintiff now moves to set aside such judgment as having been entered in contempt of court at a time when such entry was stayed. The papers above recited do not sustain his contention. were operative upon the defendants were not those promised in the decision, but those prescribed by the orders. It is no doubt true that, had the order of August 3d provided for a stay coterminous with the time accorded for making and serving the case, it would have been signed as being sufficiently within the relief intended to be afforded by the decision. It did not however so provide, and when the plaintiff's subsequent effort to have it modified in order to secure the elastic stay to which he considered himself entitled was unsuccessful, he was plainly notified that he must obtain an extension of the stay in order to make it operative. The use of the words "without prejudice to the stay of proceedings ordered," (in the order of August 3d,) which were inserted in the order of September 12th, before the expiration of the six-weeks stay, is plainly not sufficient to extend such stay. The case is a very hard one for the plaintiff, but no ground is suggested upon which the judgment which the defendants regularly entered can be set aside.

The plaintiff may take an order extending his time to make and serve a bill of exceptions or case until October 13th, which is the last day of the present term. Hunnicutt v. Peyton, 102 U. S. 333; Muller v. Ehlers, 91 U. S. 249. If plaintiff intends to move for a further extension and beyond the term, he must give notice of such motion; and if he prepares his case and exceptions within the time granted, and desires to apply for an order directing that it be filed nunc pro tunc as before the entry of judgment, he must give notice of such motion.

The motion to vacate the judgment is denied.

UNITED STATES v. BORNEMANN.

(Circuit Court, D. California. September 24, 1888.)

1. EMBEZZLEMENT-BY OFFICER OF UNITED STATES-INDICTMENT-DESCRIPTION OF MONEY.

An indictment against a public officer for embezzlement of public funds need not state what kind of money was embezzled, whether coin, and, if so, whether gold or silver, or bills, or of what denominations, and how many of each. 2. SAME ALLEGATION OF OFFICIAL CHARACTER.

*

An allegation in the indictment that defendant, "then and there being an officer of the United States, having the safe-keeping and disbursement of pub. lic moneys, * * did then and there knowingly, willfully, and feloniously convert and embezzle a portion of said public moneys intrusted to him, states defendant's official character directly, and not by way of recital merely. 3. SAME.

A count in the indictment, which omits to state what office defendant held, is demurrable.

4. SAME-POSSESSION OF FUNDS.

An allegation that the money was on deposit with the assistant treasurer does not negative defendant's possession and control in such sense as to render its appropriation an embezzlement, as, under the law, of which the court will take notice, he was an officer of the United States, and not a mere servant or agent of the assistant treasurer, and it was his duty to take charge of and handle the money.

Demurrer to Indictment for Embezzlement.

John T. Carey, U. S. Atty., for the United States.

S. G. Hilborn and W. C. Belcher, for defendant.

Before SAWYER, Circuit Judge, and SABIN, District Judge.

SAWYER, J. Demurrer to indictment of the cashier of the United States assistant treasurer at San Francisco, for embezzling $10,000 of the money of the United States, in his custody as cashier. It is insisted that each count is defective in not stating what kind of money, whether coin, and, if so, whether gold or silver, or bills, and of what denominations, and how many of each, etc.

It may be conceded for the purposes of this case, that at common law, it would be necessary to state these particulars in case of an embezzlement by the clerk, servant, agent, or employe of private parties. But in the case of an embezzlement of public funds by a public officer, where the funds are constantly changing, and the public has no direct personal possession or oversight, and where it would ordinarily be impracticable, if not absolutely impossible, to identify and pursue the particular coins or bills embezzled, it is held in numerous decisions that such particularity is unnecessary. People v. McKinney, 10 Mich. 89; State v. Smith, 13 Kan. 294-296; State v. Carrick, 16 Nev. 123-125; State v. Walton, 62 Me. 108111; State v. Flint, 62 Mo. 396-399; Brown v. State, 18 Ohio St. 506; State v. Munch, 22 Minn. 67; State v. Boody, 53 N. H. 613; 2 Bish. Crim. Proc. 319. We think the indictment good in this particular. §

2. It is insisted that the several counts are bad, because the official character of the officer is not alleged directly, but only by recital. The

v.36F.no.4-17

* * *

allegation is, "that said Bornemann-then and there being an officer of the United States having the safe-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 some 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 seq., c. 7. We held a less definite form of averment of citizenship to be good in Sharon v. Hill, 10 Sawy. 635, 23 Fed. Rep. 353; and see authorities therein cited. This is the form of statement in some of the cases cited under the first point, and is the form of statement in the indictment involved in U. S. v. Hartwell, 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 so, 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 part 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 a 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. 392, covers these and all cognate points. We think all the counts are good unless it be the first, in regard to which we have strong doubts, as 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 TENNESSEE v. JACKSON.

(District Court, E. D. Tennessee. July, 1888.)

EXTRADITION-INTERSTATE-FALSE AFFIDAVIT-HABEAS CORPUS.

Under Rev. St. U. S. § 5278, providing that "whenever the executive author. ity 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 be fore a magistrate of any state or territory charging the person demanded with having committed treason, felony, or other crime certified as authoritative 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 person has fled to cause him to be arrested and secured," etc., the person charged must be a fugitive from the state in which the crime was committed, before the executive authority can be called into action; and where he is delivered up to the authorities of that state on a requisition based on a false affidavit that he is a fugitive, he will be released on habeas corpus.

On Petition for Habeas Corpus.

Russell, Titlow & Daniel, for relator.

W. L. Eakin, for the State.

KEY, J. The facts of this case are as follows: The defendant resided 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 Jackson. 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 issued. 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; and 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 off 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 person has fled, to cause him to be arrested and secured," etc. Accord

ing to the provisions of this law, there must be, not only the commission of the crime, but the person charged must be a fugitive from the state in which it was committed, before the 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 of the 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 in 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.

CAMPBELL v. MAYOR, ETC., OF NEW YORK.

(Circuit Court, S. D. New York, September 21, 1888.)

PATENTS FOR INVENTIONS-ACTIONS FOR INFRINGEMENT-REHEARING-NEWLYDISCOVERED 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 use, directed his efforts towards disproving consent and allowance to the same, on the supposition then generally shared by the bench and bar, and recognized in the answer, that consent and allowance were necessary to defeat the patent, and the case was determined accordingly. A sale of an engine containing the invention, which was forwarded April 28,