demand is made, through their courts, as that the exercise of any other of the sovereign powers of the nation shall be so exempt. Times of great local excitement may occur, as they have heretofore occurred, in relation to the extradition of slaves, provided for in the same act of congress, and exigencies may arise where the protection of the agencies employed under the extradition act in question, and their exemption from interference by the state tribunals by habeas corpus, may be of the utmost importance to the peace of the country.

Under the treaty with Mexico of December 11, 1861, persons committing certain offenses" within the limits of the frontier states or territories" of one nation and escaping across the line into a frontier state or territory of the other nation may, upon the demand of the authorities of the state where the offense is committed, be delivered up for extradition by the chief civil authority, which is of course the governor, of the frontier state wherein the criminal is found: 12 R. S., p. 1200, arts. 2, 3, 4. Thus a party committing one of the designated crimes in Lower California, and fleeing into the state of California, on the demand of the governor of Lower California, may be arrested on a warrant of the governor of the froutier state of California, and delivered to the duly appointed agent of Lower California, to be transported to that state of the republic of Mexico for trial. Can it be properly said that the governor of California and the agent appointed by a Mexican state, to take charge of and transport the prisoner to Mexico, under the authority and in pursuance of the terms of the treaty between the two nations, are not agencies of the government of the United States for carrying into execution the constitution, treaties, and laws of the United States? and that in acting in strict pursuance of the provisions of the treaty, such governor and agent are not exempt from interference and obstruction from the state courts of California by writ of habeas corpus? Is this simply a matter between the two frontier states? The state of California has no interest at all in the matter. As a state, it is under no obligation to surrender such fugitive-no duty in the premises to perform. Yet the provisions of the treaty are precisely similar in effect to those of the act of congress in question, and impose similar duties upon the same officer-the governor-to be performed in a similar manner and character. Will the learned reviewer of Robb's case say in this case, "that to make this agency a federal agency is to give it a character which the law does not assign to it, and which as a question of fact it does not possess"? I think it will hardly be so claimed.

If the law, then, adopts a state officer as an agency for effecting its purposes, whether administrative, executive, or judicial, is the state officer so adopted a state agency, as seems to be intimated by the learned reviewer, unless the law itself in terms christens him an agency of the United States? Does the name given, or does the thing to be done, and authority to do it, and the source of the authority, characterize an act? And yet the only difference in the two cases mentioned is, that the demanding state in one case is a state of a foreign government, and in the other a state of the United States. In both cases, the proceeding, so far as it takes place in the state of California, is one wholly in execution of the supreme laws of the United States. In neither does any party concerned derive any authority from the state of California, or even from the demanding state, except so far as the acts of the demanding state are also

authorized by the constitution, treaties, and laws of the United States. The authority derived from the state is only secondary and subordinate, and itself depends upon the laws of the United States. The authority derived from the United States is the primary and paramount authority. The United States have no more interest in one case than in the other. They stand in the same relation to both. The powers conferred upon the general government by the constitution in both cases carry with them correlative and corresponding duties. Yet an interference on the part of the state courts by habeas corpus, in the execution of the provisions of the treaty in the one case, is liable to embroil the country in foreign complications, and embarrassments, if not in war. The case of Clodomiro Cota, which created some excitement in California three years ago, points to difficulties liable to arise. Upon the demand of the governor of the Mexican state of Lower California, Cota was arrested on a warrant issued by the governor of California, and delivered over to the Mexican consul, who placed him on board a Mexican vessel of war, in charge of the commander, to be transported to Lower California.

One of the superior courts of San Francisco issued a writ of habeas corpus, and further proceedings were had, whereby it was contemplated to take the prisoner forcibly from the vessel. The moderation and good sense of the Mexican consul, however, led him to avoid any conflict between the officers of Mexico and of the state of California. He again took personal possession of the prisoner, removed him from the vessel to the shore, where he was placed in the charge of the police force. The writ was subsequently dismissed, it is understood, on jurisdictional grounds. The case indicates the embarrassments liable to arise from any attempted exercise of jurisdiction by the state courts in matters pertaining to the execution of the functions and laws of the United States government relating to the extradition of fugitives from justice from foreign countries.

The state of California, in its penal code, has made provision for the extradition of fugitives from justice from other states, under which, possibly, Bayley might have been returned to Oregon, had the state of Oregon or the governor of California seen fit to proceed under the state code: Penal Code of California, secs. 1548 to 1556, inclusive. These provisions, however, required the interposition of judicial action in the state of California, as the basis of surrender by the governor.

Had proceedings been taken under the state laws, without reference to the laws of the United States, the state courts would, undoubtedly, have had jurisdiction to inquire into the regularity of the imprisonment, and their jurisdiction would have been exclusive, unless the party should claim, in good faith, to be imprisoned in violation of the constitution or laws of the United States. But the state of Oregon and the governor of California did not, in fact, nor did they profess to, proceed under the state laws. The governor proceeded, and so expressly stated in the recitals of the warrant, under and by virtue of the powers conferred by the laws of the United States. He acted, professedly, as an agency of the sovereignty of the general government. State laws, like those of California, passed in pursuance of the comity that ought to exist between states, may possibly, ordinarily, be sufficient for the purpose of extradition between adjoining states. But states might not pass such laws, and if they did, they would be utterly impracticable for states lying remote

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from each other without legislation by congress. For example, take the states of California and Maine. No law could be passed by either or both states, acting in concert, that would be effectual to return a fugitive escaping from one state to the other.

The laws of California might authorize a demand, and the appointment of an agent to receive the fugitive; and the laws of Maine might authorize the arrest and surrender of such fugitive to the agent to be transported to California; but the moment the agent should cross the line of Maine into New Hampshire with the fugitive, all authority over his prisoner would cease; and he could escape, and go his way unmolested, until arrested and returned to him by virtue of proceedings de novo, under such laws as might be in force in the state of New Hampshire. And this proceeding would require to be repeated at the boundary of every state through which he should attempt to pass. Thus the states are utterly incapable of providing adequate means for securing the return of fugitives from justice escaping into remote states, and there is an absolute necessity for vesting the power over this subject in the national government; and it having been so vested, it is equally important that these powers be executed by the agencies provided by the laws of the superior sovereignty, without any interference or obstruction from the subordinate governments or their tribunals. If the state courts have jurisdiction to examine and discharge such fugitives on habeas corpus, then an agent of the state of Oregon attempting to transport a fugitive from the state of Maine to Oregon would be liable to be called upon to respond to a writ of habeas corpus within the local jurisdiction of every court through which he would be compelled to pass between the states of Maine and Oregon.

With the greatest deference to the opinions of so able a law-writer as the author of the work on the Law of Extradition and the Constitutionality of the Legal Tender Acts, in view of the considerations herein before set out, it is submitted that the case of Robb can not be distinguished from the Booth and Ableman cases, or taken out of the rule therein established. If those cases were well decided, then the case of Robb must be governed by them, and it was also well decided.

ALFRED CLARKE.

San Francisco, Cal.

DISTRICT COURT, DISTRICT OF CALIFORNIA.

UNITED STATES v. EVANS.

Filed April 3, 1884.

SUBORNATION OF PERJURY, INDICTMEMT FOR.-To sustain an indictment for procuring a person to commit perjury, it is necessary that perjury has in fact been committed. It cannot be committed unless the witness swears to what was false, willfully and knowingly. Consequently the indictment must aver, not only that the statements made by the witness were false in fact, and that he knew them to be false, but also that the party procuring him to make those statements knew that they would be intentionally and willfully false on the part of the witness, and thus that the crime of perjury would be committed by him.

DEMURRER to an indictment charging the defendant with subornation of perjury. The opinion states the facts.

A. P. Van Duzer and J. J. De Haven, for the defendant.

S. G. Hilborn, United States Attorney, and Curroll Cook, Assistant United States Attorney, for the United States.

HOFFMAN, D. J. The indictment, after the usual formal allegations, which seem to be quite sufficient, charges in substance that the defendant procured one Burnett to commit the crime of perjury by swearing to certain allegations contained in an affidavit made and subscribed by him on an application for an entry of certain timber lands. It avers that Burnett knew that these allegations were false, and it negatives them by averring what the facts were. It also avers that the defendant, when he procured Burnett to swear to these allegations, also knew that they were false. It does not aver that he knew that Burnett was aware of their falsehood.

To sustain an indictment for procuring a person to commit perjury it is obviously necessary that perjury has in fact been committed. It cannot be committed unless the person taking the oath not only swears to what was false, but does so willfully and knowingly. He who procures another to commit perjury must not only know that the statements to be sworn to are false, but also that the person who is to swear to them knew them to be false; for unless the witness has that knowledge, the intent to swear falsely is wanting, and he commits no perjury.

It is, therefore, essential that the indictment should aver not only that the statements made by the witness were false in fact, and that he knew them to be false, but also that the party procuring him to make those statements knew that they would be intentionally and willfully false on the part of the witness, and thus the crime of perjury would be committed by him.

The allegations of the indictment in this case are consistent with a belief on the part of the defendant that the party alleged to have been suborned supposed the statements he was expected to make to be true. In that case he would not be guilty of perjury, nor could the defendant be adjudged guilty of procuring him to commit perjury. Demurrer sustained.

See cases U. S. v. Denne, 3 Woods, 39; Commonwealth v. Douglass, 5 Met. 244; 2 Arch. Cr. Pr. & Pl., Pomeroy's notes, 1750; 2 Wharton Cr. L., 8th ed. 1329.

SUPREME COURT OF COLORADO.

SALISBURY V. ELLISON.

Filed April 1, 1884.

AN ASSIGNMENT BY THE SURVIVING PARTNER OF AN INSOLVENT FIRM, for the benefit of preferred creditors, is invalid in equity, and will be so held when the question is properly drawn in issue.

EQUITABLE DEFENSES MAY BE INTERPOSED to an action at law.

DEFENSE NOT PLEADED, WHEN MAY BE TAKEN ADVANTAGE OF.-If a defense, legal or equitable, to which the defendant is entitled to the benefit, be not averred in the answer, but is fully established by the plaintiff in attempting to make out his case in the first instance, the plaintiff will be deemed to have waived the absence of averment, and cannot recover if objection be taken by the defendant.

REHEARING granted in Salisbury v. Ellison, 2 West Coast Rep. 102.

ERROR to the district court of Boulder county. Petition for a rehearing. The facts are stated in the former opinion, reported in 2 West Coast Rep. 102.

Harmon & Ellis, for the plaintiff in error.

Platt, Rogers & R. H. Whiteley, for the defendant in error.

HELM, J. We discover no reason for changing our views upon the the leading questions considered in the opinion deciding the case. The following propositions were announced and are still adhered to, viz.: First, that an assignment by the surviving partner of an insolvent firm for the benefit of preferred creditors is invalid in equity, when the question is properly drawn in issue, and that this was true before the adoption of our recent statute on this subject; second, that in actions at law appropriate equitable defenses may be interposed; third, that if the defense be not averred in the answer, yet be fully established by the plaintiff in attempting to make out his case in the first instance, he will be deemed to have waived the absence of averment, and cannot recovered if objection be taken by defendant; and, fourth, that this waiver takes place, under our practice, whether the specific defense proven by the plaintiff be legal or equitable,

But these propositions must of course be understood with the qualification that the legal action is between the proper parties; and that the defense, legal or equitable is one of which the defendant is entitled to the benefit.

In their argument supporting this petition for a rehearing, counsel urge with considerable force that the defendant in this case has no interest in the equitable defense above stated, and was not entitled to plead the same; also that the question of fraud in the assignment could only become important and be adjudicated in an action to which the surviving partner and the unpreferred creditors as well as the assignee were parties.

We have decided to grant the prayer of the petition, for the purpose of more fully considering these questions; the arguments upon the rehearing will be confined thereto.

Rehearing allowed.

BECK, C. J. I concur that a rehearing should be granted.