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LACOMBE, Circuit Judge. This is a motion to vacate an attachment and discharge a levy thereof upon a fund in the hands of the Mercantile National Bank, unless the plaintiff herein consents to appear and to yield to the jurisdiction of the New York Supreme Court and to allow the question as to its right, if any, under and by virtue of said warrant of attachment, to be determined in said court on the merits. The fund is claimed by two other persons besides Neeley, and suit has been brought against the bank in the state court. Apparently in no other way can the rights of the bank, who is a mere stakeholder, be
The determination of the question whether or not the United States shall voluntarily appear in an action in a state court is one to be determined by the executive branch of the government; i. e., by the Attorney General. The proposition that a federal court shall compel that officer by threat of an adverse decision to make such “voluntary (?)” appearance is an interesting one, which has apparently once before been considered in this court (Johnston v. Stimmel, 89 N. Y. 117), but which need not be discussed here. The Attorney General states that the United States disclaims any interest in the litigation, which it appears is being prosecuted in the name of the United States solely for the benefit and at the expense of the Cuban government. There is no reason why the Cuban government should not appear in the state court case, and, indeed, every obligation of fair dealing requires it to do so.
The motion is therefore granted.
ATTACHMENT-VACATION-MOTION BY CLAIMANT OF PROPERTY.
A third person, claiming ownership of a fund in a bank attached as the property of a defendant, through a transfer to him of the certific, te of deposit issued for the same, may properly intervene in the action, and assert his claim by a motion to vacate the attachment as to such property; but the attachment will not be vacated on such ground on ex parte affidavits.
On Motion to Vacate Attachment.
LACOMBE, Circuit Judge. Kaulbach, who claims the money represented by the certificate of deposit, apparently acquired whatever interest he has subsequent to the levy. He should not, however, for that reason be denied opportunity to establish a claim, if he can do so, either personally or through Russey, under the principles governing negotiable paper. He has quite properly, although not a party, moved in this action, because in that way a decision can be reached much more quickly and economically than in any other. Judging from a communication received from his counsel, he does not understand.
the practice usual here when there is a conflict of affidavits upon a motion, and confounds it with the state reference of all the issues. As was stated on the argument, it would be grossly improper to vacate attachment on either Kaulbach's or Russey's ex parte affidavit untested by cross-examination. The case is therefore sent to the clerk of the court to take such testimony as may be offered, and report the same to the court promptly. Notice of the hearing should be given to the bank and to Russey, and they should be allowed to intervene. To save expense, the testimony of Russey or of any one else living more than 100 miles from the courthouse, may be taken by commission upon direct and cross interrogatories. Whether there shall be any delay, or not rests wholly with the moving party. If he is reasonably expeditious, there is no reason why the testimony may not be completed and the matter disposed of within two weeks. The suggestion of calling witnesses from the Attorney General's office and producing books and documents from the banks is preposterous. No questions calling for any such proof are to be decided. A single witness from the bank will prove the genuineness of the certificate of deposit, and, if petitioner can show that he is a bona fide holder for value with a title superior to the levy, the attachment will be vacated. If he cannot show this, no other alleged defect in the levy will be considered, because, if he is not such a bona fide holder, he is a mere stranger, who has no concern in the question whether the levy was properly made or not.
This summary proceeding is much less expensive than the litigation proposed in the state courts. There are no costs on motions in the federal courts. The affidavit of Kaulbach, on which he relies as entitling him to relief, does not make out a prima facie case, because its averments are rather of conclusions than of facts.
BROWN V. MAGEE et al.
(Circuit Court, E. D. Pennsylvania. July 14, 1906.)
A receiver for an insolvent corporation who has been ordered by the court to collect an installment due from stockholders for the benefit of the creditors is entitled to maintain a bill of discovery against a broker, who as agent purchased certain of the stock for an undisclosed principal, to compel a disclosure of the real ownership of such stock to enable him to bring a suit for the collection of the assessment.
In Equity. On bill of discovery. Burr, Brown & Lloyd, for complainant. Rudolph M. Schick, for respondents. HOLLAND, District Judge. The question in the former suit was whether the defendant Kurtz was liable as agent for an assessment on this stock, and the court held he was not liable. The question now raised by the bill is the plaintiff's right to compel the defendants to disclose the real ownership of the stock. It is an entirely different
question and was not raised in the former suit. In the case of Brown v. McDonald, 133 Fed. 897, 67 C. C. A. 59, 68 L. R. A. 462, the Circuit Court of Appeals of this district decided, upon a similar state of facts, that this plaintiff was entitled to a discovery.
A decree will be entered in favor of the plaintiff.
UNITED STATES v. GREENE et al.
(District Court, S. D. Georgia, E. D. January 12, 1906.)
1. EXTRADITION-CONSTRUCTION OF TREATY.
In the construction and carrying out of extradition treaties the ordinary technicalities of criminal proceedings are applicable only to a limited extent, since an exact correspondence between the laws of the two countries cannot be expected, and the only purpose of extradition is to put the accused on trial under the laws of his own country.
[Ed. Note.-For cases in point, see vol. 23, Cent. Dig. Extradition,
§ 9.] 2. SAME-SUFFICIENCY OF INDICTMENT-DESCRIPTION OF OFFENSE.
An indictment charging a conspiracy to defraud the United States between an officer and agent of the government and his codefendants, which sets out facts showing a corrupt agreement between the defendants and overt acts by means of which the purpose of such agreement was effected and the government defrauded, charges fraud by an agent and participation therein by the other defendants, within the meaning of clauses 4 and 10 of article 1 of the extradition treaty of 1890 (Act March 25, 1890, 26 Stat. 1509) between Great Britain and the United States,
and is sufficient to warrant their extradition for trial thereunder. 3. SAME-CONSTRUCTION OF TREATY.
Distinction between relating clause of the Ashburton treaty of 1842 and
the supplemental treaty of March 25, 1890, now of force, discussed. 4. SAME-INDICTMENT.
For the purposes of determining a question like this, the indictment must be construed, not by one generic description alone, but after full consideration of all its clear and substantial averments.
Indictment for Conspiracy to Defraud the United States by Presenting False Claims, etc. On pleas of Benjamin D. Greene and John F. Gaynor.
See 115 Fed. 343.
Marion Erwin, U. S. Atty., Samuel B. Adams and Thomas F. Barr, Sp. Assts. to U. S. Atty., and Alexander Akerman, Asst. U. S. Atty.
William Garrard, Peter W. Meldrim, William W. Osborne, and Alexander A. Lawrence, for defendants.
SPEER, District Judge. The court has heard the questions presented on the plea of the defendants Benjamin D. Greene and John F. Gaynor to indictment No. 371, and the answer filed by the government's counsel thereto. The argument of counsel has been exhaustive.
The plea alleges that the court is without jurisdiction for the reasons therein stated. They are that the defendants were lately under
the sovereignty of the United Kingdom of Great Britain and Ireland, and that, under the treaty and under extradition proceedings between this government and that of Great Britain, the defendants were extradited to be tried upon the charges: First, participation in fraud by an agent and trustee; second, participation in embezzlement; and, third, for receiving money and property, knowing the same to have been fraudulently obtained. It is alleged that none of the aforesaid crimes or offenses are charged in the bill of indictment in any of its counts, and that no crime is charged in said indictment for which extradition can be asked. Elaborating this ground of defense it is alleged that the court has no authority to try the defendants for any crime or offense other than those named and defined in the extradition treaty, and, further, that the court has no authority to try the defendants for any crime or offense other than those for which they have been extradited. Whereupon, defendants object to being called upon to plead to said indictment, and pray that they be not tried thereon, and that they may be discharged from custody.
The answer of the government admitting the grounds of extradition to be as alleged by the plea, denies that there is a failure to charge the appropriate crimes or offenses for which such extradition was had. On the contrary, it answers that each count of the indictment charges both defendants with participation in the fraud alleged to have been practiced upon the government by one of its agents and trustees. It alleges also that the judgment of the extradition judge in the Dominion of Canada specifically sets forth that the particular acts which are charged in the indictment No. 371 were committed by the defendants and constitute participation on their part in the fraud alleged. The answer also denies the averment of the plea that the crimes and offenses set out in the indictment are not named in the extradition treaty and are therefore not extraditable. The answer of the government further alleges that the defendants were extradited and surrendered for the crimes and offenses set out described and charged in the first, second, third, fourth, fifth, and sixth counts of the indictment, and that the court has full jurisdiction to proceed with the trial.
From a certified copy of the judgment of Ulric Lafontaine, extradition commissioner of the Dominion of Canada, the grounds upon which the prisoners were returned for trial are clearly discoverable. They are: First. By entering into a corrupt agreement (conspiracy) with Oberlin M. Carter, an officer and agent of the United States, to defraud the United States in the discharge of the duties of his office and employment, and for payment by him as such officer and agent, of the public moneys intrusted to him, fraudulent claims made and to be made against the United States for the benefit of Carter and the defendants here; that such fraudulent claims were presented to Carter as a disbursing officer for approval and payment; that this constituted a corrupt agreement and deceitful device by which Carter transferred the exercise of the discretions of his office and the service of his employment from the United States, his principal and employer, to the prisoners, so that the United States thereby lost what it was entitled
to have, the honest and faithful services of its officer and agent. Second. By jointly with said Carter, agent and trustee as aforesaid, causing to be made and presented to him fraudulent claims against the government for his approval and payment to the amount of $575,749.90 knowing the same to be fraudulent. The third and fourth grounds charging embezzlement and receiving money embezzled are not important for consideration on this issue.
The treaty itself was designed to enlarge the Ashburton treaty of 1842, which, if I am accurate in my recollection, was negotiated by Mr. Webster, then Secretary of State, and Lord Ashburton. At the time that treaty was under consideration there was great tension between Great Britain and our own government, with several threatening causes of dispute—among these the dispute as to the boundaries between the United States and Canada and the final suppression of the African slave trade. An interesting résumé of these historical facts may be found in the Life of Daniel Webster written by Mr. Curtis, one of his literary executors. In later years the entente cordiale between these two great branches of the Anglo-Saxon race has steadily strengthened, and is in this day second to no other as a guaranty for the preservation of civil and religious liberty in all that vast domain where the sun, in each diurnal progress around the world, is simultaneously greeted by the meteor flag of the mother country and the stars and stripes. The influence of this feeling doubtless contributed to the supplemental convention for extradition which controls the question now before the court. The purpose of the treaty is indicated by the following provision of the preamble:
"And whereas it is now desired by the high contracting parties that the provisions of said article should embrace certain crimes not therein specified and should extend to fugitives convicted of the crimes specified in said article and in this convention."
We find that the original treaty was supplemented by three additional clauses which are strongly illustrative of the subject now under consideration. The third and fourth clauses of article 1 comprehend:
“(3) Embezzlement; larceny; receiving any money, valuable security, or other property, knowing the same to have been embezzled, stolen, or fraudulenty obtained.
“(4) Fraud by a bailee, banker, agent, factor, trustee, or director or member or officer of any company, made criminal by the laws of both countries.” 26 Stat. 1509.
The second clause of paragraph 10 of the same article provides as follows:
"Extradition is also to take place for participation in any of the crimes mentioned in this convention or in the aforesaid tenth article provided such participation be punishable by the laws of both countries.” 26 Stat. 1509. Construing the Ashburton treaty in Rauscher's Case, 119 U. S. 420,
Sup. Ct. 234, 30 L. Ed. 425, the Supreme Court comments upon the enumeration of offenses and declares that they are so specific and marked by such a clear line in regard to magnitude and importance that it is impossible to give any other interpretation to it than that of