In the Matter of Beverly Clark, on Habeas Corpus. missioner Osborn, which resulted in his committal, are also before me. By these returns, it appears that in September last, a deputy marshal of the Eastern District of Michigan procured a warrant from Commissioner Osborn, in this district, directing the marshal of this district to apprehend and bring the prisoner before him to answer to a charge of conspiring to defraud the United States in the Eastern District of Michigan. The prisoner having been arrested on such warrant, was brought before the Commissioner, and demanded an examination, which was had. Upon this examination, an indictment found against the prisoner by a grand jury in the Eastern District of Michigan was put in evidence, together with proof that it had been filed in the District Court of that district, and was still pending undetermined, and that upon it the court had issued to the marshal of that district a warrant directing the arrest of the prisoner. No other evidence was produced to the Commissioner, and he thereupon committed the prisoner for trial in the Eastern District of Michigan, by virtue of which commitment he is now held by the marshal of this district. The sufficiency of these proceedings is now called in question, and I am asked to discharge the prisoner because, as it is claimed, the indictment produced before the Commissioner does not aver that an offence against the United States has been committed in the Eastern District of Michigan. In disposing of the single issue which has been thus made, I notice at the outset that the question here is not whether proof before a Commissioner of the fact that an indictment against the person before him has been found by a grand jury of the United States, in a court of the United States, and that such court has so far acted upon the indictment as to issue its warrant for the arrest of the person to answer to the charge, is not In the Matter of Beverly Clark, on Habeas Corpus. sufficient proof to require the Commissioner to commit such person for trial in the district where the indictment was found. Nor is the question here whether the proceedings in the District Court of Michigan would not have been sufficient to justify the detention by the marshal of this district, had that court seen fit to issue its bench warrant to that officer directly. Here the proceeding seems to have been an original proceeding instituted in this district before Commissioner Osborn, in which the indictment itself was put in evidence, as showing sufficient cause for the committal of the prisoner for trial in Michigan. The questions then are, whether, in such a mode of procedure, the Commissioner is at liberty to examine the indictment, and pass upon the sufficiency of its averments, and if so, whether the averments of this indictment are sufficient to warrant the committal of the prisoner for trial in Michigan. For the purposes of this case, I shall assume-although I do not intend so to decide--that when the method of procedure is such as that adopted in this case, the indictment, which is put in evidence before the Commissioner, must be looked into, and accordingly I have examined the present indictment, and I find that it avers that the prisoner, with certain others named, did, at the city of Washington, conspire, combine, confederate, and agree together to defraud the United States, in the manner particularly set forth, and that Andrew T. Lee, one of the parties to said conspiracy, afterwards, at Detroit, in the Eastern District of Michigan, in pursuance of and according to said conspiracy, combination, and agreement, had as aforesaid, did do an act to effect the object of said conspiracy, which act is also particularly set forth. It was here intended to set out the offence created by the Act of March 2d, 1867, which declares, 'that if two or more persons either conspire to commit any offence against the laws of the United States, or to In the Matter of Beverly Clark, on Habeas Corpus. defraud the United States in any manner whatever, and one or more of said parties to said conspiracy shall do any act to effect the object thereof, the parties to said conspiracy shall be deemed guilty of a misdemeanor;" and were this indictment before me upon demurrer or plea to the jurisdiction, it might not perhaps be difficult to decide whether the averment in question did or did not amount in law to an averment of an offence committed in Michigan. But that question, as it seems to me, should not be prejudged upon a proceeding like the present. Upon such a proceeding, the indictment must be considered sufficient, unless it be so defective in the material averments that it would be the manifest duty of a court before which it was presented by the grand jury to decline to take action upon it. In the present case, the court in Michigan has felt bound to receive this indictment, and to issue a warrant upon it; and, to my mind, the averment in question is not so clearly an averment of an offence committed in Washington, instead of one committed in Michigan, as to justify the Commissioner in refusing to commit the prisoner upon it, or to warrant his discharge before me. It raises a question which properly belongs to the court in which the indictment is pending. My conclusion, therefore, is, that the prisoner must be remanded to the custody of the marshal. The Steamship Saragossa. NOVEMBER, 1868. THE STEAMSHIP SARAGOSSA. DELIVERY OF CARGO.-GOODS NOT PUT ON BOARD.-LIEN. Where a libel alleged that 303 bales of cotton were shipped on board a steamer to be carried to New York, and that a bill of lading therefor, a copy of which was attached, was signed by the agents of the vessel, and that seven of the bales were not delivered, and were not lost by perils of the sea, and the answer admitted that the vessel agreed to carry the 303 bales, and that her agents signed a bill of lading, and alleged that a copy of it was attached to the libel, and alleged that only 273 bales were ever received on board the vessel, but that the rest were brought to New York by another vessel, and discharged upon the wharf, on due notice to the consignee: Held, That on the pleadings, the authority of the agents to bind the vessel by the contract in the bill of lading must be considered as admitted; That on the bill of lading, the burden of proof was on the vessel to show that the bill of lading was signed for bales of cotton that were never received on board the vessel; That that fact was not proved by the mere statement of the purser of the vessel, that they received 303 bales, and left 30 behind; That there was no proof of the delivery of the seven bales at New York, and the vessel was liable for their value. BLATCHFORD, J. The libel avers the shipment on board of the steamship Saragossa, at Charleston, on the 17th of November, 1866, of 303 bales of cotton, under an agreement by the vessel to carry them to New York, and deliver them there to the agent of the libellants, such agreement being set forth in a bill of lading signed by the agents of the vessel. A copy of the bill of lading is annexed to the libel. It states that the 303 bales of cotton have been received "by E. N. Fuller, R. & F. agent S. C. R. R. Steamship called the Saragossa, whereof is master, now lying in the port of Charleston, S. C., and bound for New York." It gives the marks and numbers on the bales, and states that they are to be delivered at the port of New York, the danger The Steamer Saragossa. of the seas only excepted. It is not signed by the master or purser of the vessel, but is signed "Ravenel & Co., agents." The libel avers that the contract of the vessel was not performed by her, in that seven of the bales were never delivered in New York, and were not lost by dangers of the sea. The amount of damages claimed is $1,291.39. The answer admits that the vessel agreed to carry the 303 bales of cotton to New York, and deliver the same there to the person named in the bill of lading, and that the agents of the vessel signed a bill of lading for the cotton, wherein the agreement was more fully set forth, and that a copy of such bill of lading is annexed to the libel. The answer also avers that all of the bales of cotton that were taken on board under the bill of lading were delivered at New York; that on the arrival of the vessel at New York, with cotton on board received under the bill of lading, due notice of her arrival, and that he was required to attend to the receipt of the cotton laden on board, was given to the consignee named in the bill of lading; that thereafter the bales of cotton which were actually shipped on the vessel were duly discharged from the vessel, and that the vessel, both by law and the custom of the port, was entirely discharged from liability therefor; that only 273 bales of the cotton mentioned in the bill of lading were ever taken or received on board of the vessel; that those 273 bales were actually discharged upon the wharf from the vessel, on due notice to the consignee; and that the rest of the 303 bales were afterward brought to New York by the steamship Granada, and were, upon due notice, discharged upon the wharf, and delivered to the consignee. It being admitted in the answer that the vessel agreed to carry the 303 bales of cotton to New York, and that the agents of the vessel signed the bill of lading in question, the authority of such agents to bind the VOL. II.-35 |