is that the effective exercise of authority was made easier by what had been done. It was not even argued that the appellant was entitled to a chance to escape before either of the warrants could be executed. This proceeding is not a fox hunt. But merely to be declared free in a room with the marshal standing at the door having another warrant in his hand would be an empty form. We are of opinion that in the circumstances of this case as we have stated them the omission of a formal act of release and a subsequent arrest, if they were omitted, furnishes no ground for discharging the appellant upon habeas corpus. All the intimations and decisions of this Court indicate that the detention of the appellant cannot be declared void. Pettibone v. Nichols, 203 U. S. 192. Iasigi v. Van De Carr, 166 U. S. 391, 393, 394. Ekiu v. United States, 142 U. S. 651, 662. If we were satisfied that a different rule would be applied by the final authority in Great Britain other questions would arise. Charlton v. Kelly, 229 U. S. 447. But we are not convinced by anything that we read in Hooper v. Lane, 6 H. L. C. 443, that a different rule would be applied and we think it unnecessary to discuss the differences in detail.

The complaint of October 15 charges perjury, obtaining money by false pretenses, and, conjointly, stealing or embezzling and unlawfully receiving money and other property of the King which had been embezzled, stolen or fraudulently obtained by means of a conspiracy as set forth. The perjury alleged is swearing falsely to the proportion of cement sand and broken stone put into the caissons of the new parliament buildings at Winnipeg, in a judicial proceeding before the Public Accounts Committee of the Legislative Assembly of the Province of Manitoba, the appellant knowing his statements to be false. It is objected that although perjury is mentioned as a ground for extradition in the treaty, the appellant should not be surrendered because the Canadian Criminal Code, § 170,

As

defines perjury as covering false evidence in a judicial proceeding 'whether such evidence is material or not.' to this it is enough to say that the assertions charged here were material in a high degree and that the treaty is not to be made a dead letter because some possible false statements might fall within the Canadian law that perhaps would not be perjury by the law of Illinois. "It is enough if the particular variety was criminal in both jurisdictions." Wright v. Henkel, 190 U. S. 40, 60, 61. There is no attempt to go beyond the principle common to both places in the present case. It is objected further that although the above committee was authorized to examine witnesses upon oath it was only in 'such matters and things as may be referred to them by the House.' But even if there were not some evidence and a finding, Ornelas v. Ruiz, 161 U. S. 502, 509, the nature of the investigation, the purposes for which the committee was appointed, and the fact that the appellant appeared before it without objection would warrant a presumption of regularity in a summary proceeding like this.

The plan for the foundations of the buildings was changed from piling called for by the written contract to caissons filled with concrete and the false representations alleged concern the amount of concrete, lumber, iron rings and bolts used in the extra work. They consisted in bills or 'progress estimates' addressed to the Provincial Government for 'labor and materials supplied,' setting forth the amount of each item thus stated to have been supplied. It is objected that the amounts demanded by the bills were paid not upon the bills but upon vouchers coming from the Department of Public Works, and that the provincial architect who certified the bills was not deceived. The person who made out the certificates relied upon the bills in good faith, and it appears that without the bills the payments would not have been made. The fact that there were other steps necessary in addition

to sending in a false account, or that other conspirators coöperated in the fraud, does not affect the result that on the evidence Kelly obtained the money from the Provincial Government by fraudulent representations to which he was a party and that his false statement was the foundation upon which the Government was deceived.

The last charge, stealing or embezzling and receiving money fraudulently obtained needs a word of explanation. It may be assumed that there is no evidence of larceny or embezzlement as (commonly) defined, but the receiving of property known to have been fraudulently obtained is a crime by the laws of both Canada and Illinois. There may be a doubt whether the appellant, if a party to the fraud, received the money of the Government directly from it, or through a third hand so as to be guilty under this count of the complaint. We are not prepared to pronounce his detention upon the count unjustifiable in view of the finding. We assume, of course, that the Government in Canada will respect the convention between the United States and Great Britain and will not try the appellant upon other charges than those upon which the extradition is allowed. Therefore we do not think it necessary to require a modification of the complaint before the order discharging the writ of habeas corpus is affirmed.

Final order affirmed.

Argument for Plaintiff in Error.

241 U. S.

OSBORNE, RECEIVER OF THE CHATTANOOGA SOUTHERN RAILROAD COMPANY, v. GRAY.

ERROR TO THE SUPREME COURT OF TENNESSEE.

No. 373. Argued April 3, 1916.-Decided April 17, 1916.

In an action by representatives of an employee for his death, from negligence of an interstate carrier by rail, defendants are entitled to insist upon the applicable Federal Law as the exclusive measure of liability, whether plaintiff presents his case under the Federal or state law.

In the absence of a showing bringing the injury within the Federal act, the question whether the declaration permits a recovery at common law is a state, and not a Federal, question.

Where there is no evidence showing that the deceased was engaged in interstate commerce when killed, the court cannot supply the deficiency by taking judicial notice of that fact, basing its knowledge on facts such as that the location of the accident was near the border of the State and the direction from which the cars came. An interstate carrier, defendant in an action for death of an employee, is bound to know the actual movement of its trains and whether they were interstate, and if it fails to inform the court on this point, it cannot complain that it is deprived of a Federal right because the court does not take judicial notice of facts bearing thereon.

THE facts, which involve the validity of a verdict under the Employers' Liability Act, are stated in the opinion.

Mr. William L. Frierson, with whom Mr. Lewis M. Coleman was on the brief, for plaintiff in error:

Where it appears either in the declaration or in the proof that the accident occurred in interstate commerce, the Act of Congress controls and, in case of death, a widow cannot recover in her own name. Wabash R. R. v. Hayes, 234 U. S. 86; Toledo &c. R. R. v. Slavin, 236 U. S. 454.

241 U.S.

Argument for Plaintiff in Error.

The amendment of the amended declaration amended both counts and, therefore, there was no count which did not allege interstate commerce or under which a widow could recover in her own name.

The view expressed by the state court that only the second count was amended is not conclusive on this court. Light Co. v. Newport, 151 U. S. 537; Covington Turnpike Co. v. Sandford, 164 U. S. 595; Mitchell v. Clark, 110 U. S. 663; Boyd v. Nebraska, 143 U. S. 135; Vandalia R. R. v. Indiana, 207 U. S. 367.

From the facts which were established by evidence introduced before the jury, and from general knowledge the trial court was bound to know judicially and this court will know that the Chattanooga Southern Railroad extends from Chattanooga to the Georgia state line, and then through the State of Georgia and to Gadsden in Alabama; that Chattanooga is only about four or five miles from the Georgia state line and its suburb of Alton Park, immediately south of it, is almost on the state line. Peyroux v. Howard, 7 Pet. 324; United States v. La Vengeance, 3 Dall. 297; United States v. Lawton, 5 How. 26; Watts v. Lindsey, 7 Wheat. 162; McNitt v. Turner, 16 Wall. 352; Wheeling Bridge Case, 13 How. 561; United States v. Thornton, 160 U. S. 458-9; Waters-Pierce Oil Co. v. DeSelms, 212 U. S. 159; Schollenberger v. Pennsylvania, 171 U. S. 9-10; New Mexico v. Denver &c. R. R., 203 U. S. 38; Nicol v. Ames, 173 U. S. 516-17; Gibson v. Stevens, 8 How. 399; Brown v. Spillman, 155 U. S. 665; United States v. Trans-Missouri R. R., 166 U. S. 290; Louisville Trust Co. v. Louisville &c. R. R., 174 U. S. 674; Black Diamond Co. v. Excelsior Co., 156 U. S. 611; Sligh v. Kirkwood, 237 U. S. 52; Greenleaf on Evidence (15th ed.), § 6; Thorson v. Peterson, 9 Fed. Rep. 517; Gilbert v. Moline, 19 Iowa, 319; Coover. v. Davenport, 1 Heisk. (Tenn.) 368; St. Louis v. Magness, 68 Arkansas, 289; Perry v. State, 113 Georgia, 938; Harvey v. Oklahoma, 11 Oklahoma, 156; Harvey v. Wayne, 72