neglected to dismiss their suit, as they had agreed to do, and the defendants neglected to have the suit dismissed, as they might have done. The dismissal by Wilson and Wolf, after Rice had become a party to the proceeding, had no effect on any rights which Rice had acquired. While Baldwin was not a party to the attachment suit, he was interested in having that suit dismissed before other creditors filed under it. But he neglected to inform the court of the payment of Wilson and Wolf's debt, the agreement to dismiss, and the disposition that had been made of the attached property, and Rice took the necessary steps to become an under filing creditor, and proceeded in the regular way to judgment on his claim. The court also found that the property which the sheriff had seized was subject to the lien of Rice's attachment, and ordered that it be sold to pay his debt. Baldwin and his sureties are now sued because Baldwin failed to deliver the attached property to his successor in office for execution, and the defence is an indirect attack on the order of the court.

The court could, and perhaps would, have permitted Baldwin to set up the agreement between the original attachment plaintiffs and defendants for the dismissal of the suit in opposition to Rice's motion for an order to sell the attached property and have the proceeds applied to the payment of his debt. Adams v. Balch, 5 Me. 188; Drake on Attachment, § 304. But finding that the original suit in attachment was pending on the docket, that there had been no "final adjustment" of it by dismissal or otherwise, was Rice bound to go further and inquire whether there was any private or outside agreement for its dismissal? I think not. What effect it would have had if, before taking the necessary steps to become an under filing creditor, Rice had known of the payment of Wilson and Wolf's debt, and of the agreement to dismiss the suit, is not a question now before the court. The attached property was in the custody of the court for the benefit of Wilson and Wolf, and all other creditors who saw fit to become parties to the proceeding. While the case remained on the docket, unless the defendant substituted a bond for the attached v. 6, no.1-3

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. His 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 surrender 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 damages as will indemnify him for Baldwin's neglect of official 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 sufficient, in overruling the demurrer, to say that Rice had a right of action.

Ex parte LANE.

(District Court, D. Michigan. January 31, 1881.)

1. EXTRADITION-COMPLAINT AND WARRANT.

A complaint and warrant in an extradition case should show upon their face that the commissioner issuing the warrant is duly empow ered to act in cases of that description.

2. SAME-HABEAS CORPUS.

Quare, whether the court, upon habeas cormis, would be bound to treat a warrant defective in this particular as null and void.

3. CANADA-JUDICIAL NOTICE.

The court may take judicial notice of the fact that the dominion of Canada is a British possession.

4. COMPLAINT-COMMON-LAW OFFENCE.

A complaint charging an offence at common law is good, notwithstanding it concludes "against the form of the statute," etc. In such case no proof of the foreign statute is required.

5. SAME-INFORMATION AND BELIEF.

A complaint made simply upon information and belief is fatally defective, and gives the commissioner no jurisdiction.

6. SAME-SAME-OFFICIAL REPRESENTATIVE.

If the person making the complaint 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 details of his information, that it may appear that the arrest of the party is sought upon something more than a rumor or suspicion of his guilt. 7. SAME-AMENDMENT BY COMMISSIONER-CERTIORARI.

The commissioner has no power to amend the complaint or warrant, or to supply defects by his certificate, after the case is closed and a writ of certiorari 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 reference to the application of the Canadian authorities for the extradition of the petitioner, Oliver 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 record 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 prov ince 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 extradition commissioner for the eastern district of Michigan

The commissioner, 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 complaint 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 Re Farez, 7 Blatchf. 345, objection was taken to the proceedings on the ground that the warrant did not show that the commissioner was 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 Re 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 particu larly described in the act of September, 1850; and it was further held that such defect could not be aided by referring

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 cases. I should 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 a 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 indictment.

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.