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 seems to have been formerly the law that where an offence 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, how. ever, 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. I 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 there is a provincial statute punishing the common-law crime of forgery. If, however, the party were shown not to be 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 I 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 believes 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 are

discussed, but I think, as a general rule, a mere allegation that the complainant has reason to believe, and does believe, is insufficient. Such was the ruling in Ex parte Smith, 3 McLean, 135, and such, I think, is the inference to be drawn from the language 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 Wend. 257; Matter of Bliss, 7 Hill, 187; Proctor v. Prout, 17 Mich. 473.

In cases of injunctions, the rule is that the material facts must be sworn to positively, and by a person having knowledge of such facts. Waddell v. Bruen, 4 Edwards, Ch. 671; Armstrong v. Sandford, 4 Minn. 49.

So, also, with regard to depositions attached 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, and 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,

or if the representative of the foreign government demanding his extradition has fully informed himself with regard to the particular events by conversations with persons who witnessed them, he may make a complaint upon information and belief; but, in such case, I think he should set forth with some 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 knowl edge, information, and belief. It is true that after the writ 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 commissioner jurisdiction to act in this matter, and the prisoner is entitled to a discharge.

UNITED STATES v. THORNBURG.*

UNITED STATES v. WISE.

(District Court, S. D. Ohio. March, 1881.)

1. NAVIGATION LAWS-REV. ST. § 4472-CARRYING PETROLEUM ON PASSENGER VESSELS-PRACTICABLE MODE OF TRANSPORTATION.

Section 4472 of the United States Revised Statutes prohibits the carrying of petroleum and other dangerous articles upon passenger vessels, but excepts petroleum of a certain fire test upon routes where there is no other practicable mode of transportation.

Held, (1) that if there is an all-rail route over which the oil may 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 Statutes 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 from other points.

*Reported by Messrs. Florien Giauque and J. C. Harper, of the Cincinnati bar.

Channing Richards, U. S. Dist. Att'y, for plaintiffs. Moulton, Johnson & Levy and W. H. Jones, for defendants. SWING, D. J., (charging jury.) If there be an all-rail route over which the oil may be carried with any profit, it is a practicable mode of transportation; 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 in oil between the points in question,-in other words, if the rate of freight be so high as to prohibit commerce in oil between those points,-it would not be a practicable mode of transportion between those points.

I refuse to give the following charge, asked by the government: That if there be an all-rail route between the points in question, it constitutes a practicable mode of transportation, within the meaning of the statute, without regard to cost or distance.

Verdict for defendants.

UNITED STATES v. BAER.

(Circuit Court, S. D. New York. December 7, 1880.'

1. PERJURY-DEPOSITION-OATH-EVIDENCE-NEW YORK STATUTES. Upon a trial for perjury, for having sworn falsely as to the truth of a certain deposition, the notary, who administered the oath in the state of New York, testified that there was but one legal form of administering an oath in the state, and that such form was, "Do you solemnly swear that the above affidavit subscribed by you is true, in the presence of the ever-living God;" that he "used that form substantially," but did not know whether he "put in the presence of the ever-living God;" but that he was "a little conscientious about that," and "a little careful about using it." Held, upon a motion for a new trial, that this testimony of the notary, coupled with the certificate given at the time to the effect that the affidavit was sworn to before him, was sufficient evidence to sustain a finding that an oath was administered to the accused.-[Ed.

Indictment. Motion for New Trial.

BENEDICT, D. J. The defendant was indicted under section 5392 of the Revised Statutes for having taken an oath before a notary public that a certain deposition subscribed by him