MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.
The question before the commissioner in this case was whether, in the language of the treaty of 1842, article X, 8 Stat. 572, 576, there was "such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial if the crime or offence had been there committed." In other words, whether, according to our laws, there was probable cause to believe him guilty of the crimes charged. Rev. Stat. § 5270; Benson v. McMahon, 127 U.S. 457, 462. The question before us is even narrower than that, viz.: Whether there was any legal evidence at all upon which the commissioner could decide that there was evidence sufficient to justify his commitment for extradition; or, as stated in Ornelas v. Ruiz, 161 U.S. 502, 508, "if the committing magistrate has jurisdiction of the subject-matter and of the accused, and the offence charged is within the terms of the treaty of extradition, and the magistrate in arriving at a decision to hold the accused has before him competent legal evidence on which to exercise his judgment as to whether the facts are sufficient to establish the criminality of the accused for the purposes of extradition, such decision cannot be reviewed on habeas corpus." See also In re Oteiza, 136 U.S. 330.
It further appeared that Bryant kept an account with the Provincial Bank, in which he deposited on June 22 a cheque for £500; on August 13, a cheque for £500; and on September 9, a cheque for £720, which were credited to his account. It appeared that the three cheques paid by the Commercial Bank were abstracted from two cheque books which were not in use at the time, and were accessible to Bryant. No entry was made upon the counterfoils, or, as they are called in this country, the "stubs," of the cheque books from which they were taken; nor was any memorandum of such cheques anywhere entered; nor were these cheques among those received back from the bank in the ordinary way.
It further appeared that Morrison & Marshall had a sum exceeding £5000, carried to the credit of a "suspense account" in their ledgers, with which account, however, Bryant had no authority to interfere. He did, however, bring a credit of £2000 from such "suspense account" to a fictitious account, which he opened in the ledger in the name of T.H. North. Against this credit of £2000 he debited two items of £780 and £1220. The £780 was posted in the ledger from the cash book, and consisted of £280 and the £500 represented by the first cheque paid June 23. The £1220 was represented by the cheques paid August 14, £500, and September 10, £720. These amounts Bryant did not carry
Upon this evidence the appellant contended, first, that there was no testimony before the commissioner tending to show that he had been guilty of forging the three cheques; second, that if it were shown that he had made false entries upon the books of Morrison & Marshall, this would not constitute an offence for which he could be extradited, for the reason that when the treaty of 1842 was executed, the making of false entries was not forgery; third, that as to the additional sum of £280, which the relator was charged with embezzling, there was no evidence of criminality; fourth, that if there were evidence sufficient to hold appellant upon the charge of forgery of the three cheques, he could not be held as for larceny or embezzlement, and that if he were held for embezzlement from Morrison & Marshall he could not be also held for obtaining the same money from the bank upon the forged cheques; fifth, that, as he could only be tried for the particular offence for which he is surrendered, the demanding government and the commissioner should have elected, and if the latter deemed the evidence sufficient to commit upon the one charge, he should not have been committed upon the other.
We think there was legal evidence against the prisoner upon which the commissioner was authorized to act, and that is sufficient for the purposes of this case. If it were true that three cheques were missing from the cheque books of Morrison & Marshall to which the prisoner had access, and no corresponding memoranda were made on the stubs; that three cheques were presented to the Commercial Bank by a bank at which the appellant kept a personal account, and this account showed a credit of three cheques, which upon the following day were presented and paid by the
The order of the Circuit Court is