lantern, and to call out. The conductor of the first train is not shown to have had any reason to suppose that the second train would run into him when stopping at a station, in utter disregard of the company's rules.

We are inclined to think that, if the plaintiff's case depended wholly on his being able to convict the conductor of the first train of negligence, there was not sufficient evidence adduced at this trial to have justified the trial judge in submitting the case to the jury on that issue.

It is, however, further contended on behalf of the defendant in error-and upon this the stress of the case is mainly put-that under the facts disclosed in the record the trial court was justified in submititng to the jury, and the jury in finding, that the defendant company was liable for the results of the negligence in the management of the second train.

*There is no effort to call into question the numerous decisions of this court whereby it has been firmly established that one who enters the service of another takes upon himself the ordinary risks of the negligent acts of his fellow servants in the course of the employment. Indeed, it is concedea in both the opinion of the circuit court of appeals (Railroad Co. v. Poirier, 15 C. C. A. 52, 67 Fed. 881) and in the brief of the defendant in error that the conductor of the second train was a fellow servant with the plaintiff, and that, if the collision was caused solely by his negligence, the defendant would not be liable.

The argument to maintain the liability of the defendant company, notwithstanding this concession, is based upon the evidence that tended to show that the second train was a "wild train," running on telegraphic orders, without any schedule or time table, and that the conductor of that train was not notified that the first train would stop at Clyde Spur.

One of the plaintiff's witnesses (Allen, the rear brakeman on the first train) testified that the second train was "running by telegraphic orders, and had no schedule orders or time card." This was doubtless true, as it is true of every "wild" or extra train; but such a fact by no means warrants the inference drawn by the trial court and given in the charge to the jury that "the train was running under special orders as to the time it was to make, where it was to go, and when it should reach the different stations." It cannot be justly inferred from the mere fact that the second train was a "wild train" that its conductor was relieved from obeying the laws of the company. Among those rules, put in evidence by the defendant company, is:

"Rule 120. A train must not leave a station to follow a passenger train until five minutes after the departure of such passenger train, unless some form of block signal is used. In mountain districts they will not follow firstclass trains descending, under any circumstan

ces, until such trains are duly reported at next telegraph station. Freight trains must not fol low each other descending mountain grades. They may ascena in sections when handled with mountain power in the rear. Descending" passenger trains may follow freight trains as per rule 121. Ascending passenger trains will not leave station at foot of mountain until track is known to be clear."

"Rule 122. Freight trains following each other must keep not less than ten minutes apart (except in closing up at stations or at meeting or passing points), unless some form of block signal is used."

Assuredly, more evidence must be given than the mere fact that the second train was a "wild" train, not running on schedule time, to justify an inference, by either court or jury, that the conductor was relieved by such fact from regarding the rules of the company regulating the running of its train. Nor does the statement of the conductor of the second train that he had not been notified that the first train was to stop at Clyde Spur show that he had any right to dispense with the rules. While he did say that he had not been notified that the first train would stop at Clyde Spur, he does not say that he did not know of such intention. At all events, it was clearly shown by the plaintiff's witnesses that the trains were in immediate proximity to each other at Vollmer, the last station before reaching Clyde Spur; that the second train followed the first so closely that the collision occurred almost immediately after the leading train had come to a stand; and that the rear brakeman, who saw the second train approaching before his own train had fully stopped, did not have time to warn his fellow brakeman, nor himself get to the ground, before the collision took place.

These facts disclose a palpable disregard by the conductor and engineer in charge of the second train of ordinary prudence and of the rules which it was their duty to observe. We see no ground for the assertion that their conduct was directed or controlled, in these particulars, by orders from some agent or dispatcher of the defendant company, "clothed with the duty of sending out the second train, and having the control, management, and direction of its movements." Such conjectures did not constitute evidence to be submitted to the jury.

Accordingly we think that the defendant was entitled to have had the following instructions given to the jury: "If the jury find from the evidence in this case that the accident which caused the plaintiff's injury was caused by the negligence of the conductor or engineer of the extra train in following the first train too closely, or by running down the grade at too high a rate of speed, or in not keeping the extra train in proper control, or by any other act or neglect of the conductor or engineer of the first train, then I instruct you that the defendants are not liable, and that you shall return a verdict for the defendants." But this prayer was refused.

So, too, we think the following instruction asked for should have been given: "In determining the question of whether the defendant the Northern Pacific Railroad Company was guilty of negligence in the management of their trains, or either of them, the jury are instructed that they may consider the rules of the company, which have been read in evidence; and that, if it appears therefrom that the running and conduct of this second train was provided for, and that the accident was causel by the engineer or conductor of the second train in disregarding such rules, then your verdict must be for the defendants." This instruction was modified by the court adding the fol lowing words: "Unless it appeared that the conductor of the train, or some one under whose orders he was acting, had authority in the special case to deviate from the rules." This modification was not warranted by any evidence disclosed in this record. The only orders shown, controlling the conductor and engineer in the management of the second train, were those contained in the rules of the company. As we have already said, to instruct the jury that they might infer, from the mere fact that the second train was a "wild" train, not running by schedule time, that some one in authority had dispensed with the rules in this special case, was to submit mere matter of conjecture as evidence on which they might base a verdict.

The same error vitiates portions of the general charge, which were duly excepted to and assigned for error; but we do not deem it necessary to discuss those assignments in detail. They are disposed of by the observations already made.

credit of three checks, which, upon the following day, were presented to and paid by the firm's bank; and that the accused had no authority to sign checks for the firm. Held, that this was suflicient evidence to justify the commissioner in committing the accused for extradition.

3. So long as the prisoner is tried upon the facts which appeared in evidence before the commissioner who committed him for extradition, and upon one of the charges for which he was surrendered, it is immaterial whether he is indicted on all of such charges.

Appeal from the Circuit Court of the United States for the Southern District of New York. This was an appeal from a final order of the circuit court for the Southern district of New York, dismissing writs of habeas corpus and certiorari sued out by the appellant to obtain his release from the custody of the marshal of that district and the warden of the jail of the city and county of New York. The proceedings were originally instituted by a complaint made before a commissioner of the circuit court, duly authorized to act in cases of extradition, by her Britannic majesty's consul general at the city of New York, who charged the appellant with the crimes of forgery, larceny, embezzlement, and false entries, committed in the city of London, and demanded his extradition under article 10 of the treaty of November 10, 1842, and article 1 of the treaty supplemental thereto, of March 25, 1890.

The commissioner held that the evidence clearly showed that the appellant had been guilty of a crime specifically mentioned in the treaty stipulations between the two countries, and accordingly held him to await the action of the secretary of state and the final* warrant of delivery. Appellant thereupon sued out from the circuit court writs of habeas corpus and certiorari; but that court, holding that there was legal evidence upon which the commissioner could properly exercise his judgment as to the guilt or innocence of the accused, dismissed the writs, and remanded the prisoner to the custody of the marshal for the Southern district of New York. From that order petitioner appealed to this court.

Lorenzo Semple, for appellant. Charles Fox, for appellees.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

The question before the commissioner in this case was whether, in the language of the treaty of 1812, art. 10 (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 offense 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. St. § 5270; Benson v. McMahon, 127 U. S. 457, 462, 8 Sup. Ct. 1240. 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, 16 Sup. Ct. 689, 691, "if the committing magistrate has jurisdiction of the subject-matter and of the accused, and the offense 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 purpose of extradition, such decision cannot be reviewed on habeas corpus." See, also, In re Luis Oteiza y Cortes, 136 U. S. 330, 10 Sup. Ct. 1031.

The evidence before the commissioner tended to show that Bryant was employed by the firm of Morrison & Marshall, of London, as bookkeeper and assistant cashier from January to October, 1896, at a salary of £104 per annum; that he had under his control the check books of the firm, and the paid checks returned from the bank, although he was not authorized to sign the firm's name to checks; that the firm kept an account with the London office of the Commercial Bank of Scotland; and that such account was charged with the three following checks, viz.: June 23d, £500; August 14th, £500; September 1st, £720. These checks purported to be drawn on the bank, and to be signed by Morrison & Marshall, and were presented for payment by the Provincial Bank of England, and were paid and debited to Morrison & Marshall.

It further appeared that Bryant kept an account with the Provincial Bank, in which he deposited on June 22d a check for £500, on August 13th a check for £500, and on September 9th a check for £720, which were credited to his account. It appeared that the three checks paid by the Commercial Bank were abstracted from two check 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 check books from which they were taken; nor was any memorandum of such checks anywhere entered; nor were these checks among those received back from the bank in the ordinary way.

It further appeared that Morrison & Marshall had a sum exceeding £5,000 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 £2.000 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 £2,000 he debited two items of £780 and £1,220. The £780 was posted in the ledger from the cash book, and consisted of £280 and the £500

represented by the first check paid June 23d. The £1,220 was represented by the checks paid August 14th, £500, and September 10th, £720. These amounts Bryant did not carry' out in the cash column of the cash book, but, in order that the balances of the cash book, ledger, and banker's pass book should agree, he added the sum of £1,220 to the total at the bottom of the page, notwithstanding that amount was not in the column, nor was there any entry in the cash book relating to the £1,220, which could be posted to North's fictitious account.

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 checks; second, that, if it were shown that he had made false entries upon the books of Morrison & Marshall, this would not constitute an offense 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 checks, 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 checks; fifth, that, as he could only be tried for the particular offense 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 checks were missing from the check books of Morrison & Marshall to which the prisoner had access, and no corresponding memoranda were made on the stubs; that three checks 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 checks. which upon the following day were presented and paid by the Commercial Bank; and that" the appellant had no authority to sign checks for Morrison & Marshall,-the inference is at least a reasonable one that these checks were forged by the appellant. The commissioner was of opinion that, if the moneys of the firm were not actually obtained by forgery, they were obtained by embezzlement or larceny, or, at least, there was probable cause to believe that they were so obtained. So long as the prisoner is tried upon the facts which appeared in evidence before the commissioner, and upon the charges or one of the charges for which he is surrendered,

value of the improvements, in each instance, at the time of the rendition of the decrees."

That decision was rendered in several cases considered and disposed of at the same time. Our mandate having gone down to the circuit court "for further proceedings to be had therein in conformity to the opinion of this court," that court held that the defendant was entitled to enter upon her defense as if the whole matter was again at large. Thereupon plaintiffs made an application to this court for a writ of mandamus commanding the judge of the circuit court to carry out the decree heretofore made in the cause by this court. The mandamus was granted, and the case is reported Gaines v. Rugg, 148 U. S. 228, 240, 13 Sup. Ct. 611. Mr. Justice Blatchford, delivering the opinion of the court, said: "It is, we think, very plain that so much of the decree of the circuit court of November 11, 1887, as was not disapproved by this court still stands in full force. Whatever there is to impair that decree must be sought for only in the opinion, decree, and mandate of this court. This court held that no objection could be sustained to the provisions of the decree of the circuit court as to the title. It found error only in the rules prescribed by the circuit court for the taking of the account, and the decree of that court was reversed only for the purpose of taking an account according to the principles laid down by this court. As the decree of the circuit court in regard to the title was not invalidated by the action of this court on the appeal, the circuit court had no right to set aside that decree as respected the title nearly five years after it was rendered. The decree was beyond the control of the circuit court, unless on a bill of review duly filed; and the time for filing a bill of review had long ago elapsed. The circuit court could do nothing to affect the decree, except in obedience to the mandate of this court."

After the mandamus was granted, the circuit court entered the decree as ordered, and appointed another special master, directing him "to proceed to state an account between said parties according to the terms of this decree, and to that end he shall take testimony in writing of all witnesses produced, and shall report the same with all his proceedings and findings herein to this court." The statement of the account was, in itself, as the case stood, a mere matter of computation, and the record does not show that there had been any surrender of possession, or any other act, after the decree of November 10, 1887, which would af fect the final result. The master, however. instead of restating the account, corrected in the particulars indicated by us, proceeded to take new proofs as to rental value and the value of the improvements, and thereupon found the value of the improvements to be $2,625, and cut down the rents to $6 per front foot. The report was excepted to, the exceptions overruled, and a decree rendered January 23, 1894, that plaintiffs pay defendants the

sum of $2,316.23. From this decree plaintiffs prosecuted an appeal to the circuit court of appeals for the Eighth circuit, the decree was affirmed, and the case was then brought to this court. 32 U. S. App. 342, 15 C. C. A. 228, and 68 Fed. 69.

In these proceedings in the circuit court there was error, and its decree must be reversed. It is true that in Goode v. Gaines we said that defendants "should be charged with rental value from the date of the filing of the bills to the rendition of the decrees with interest," but we did not intend to be understood as holding that the rental value after that date had not been satisfactorily determined, and had in mind in that regard only the exclusion from the decree of November 10, 1887, of the amount found due plaintiffs for rent prior to that date, together with interest thereon. Nor did we intend that the finding by that decree of the then value of the improvements should be disturbed.

The reversal of that decree amounted to nothing more than a vacating of the account.* ing so as to permit of a modification thereof in particulars pointed out with sufficient precision in the opinion, and it might well be held that the circuit court had no power, under our mandate, to again go into the questions of rental rate and value of improvements, for they had been determined, and an accounting was only required to bring the amounts, including subsequent taxes, if any, paid by defendant, and interest, down to date.

But, apart from that, the rent prescribed by the lease was at the rate of $10 per front foot, and this did not appear from the extrinsic evidence to be unreasonable or excessive. Nor does the additional evidence, when carefully analyzed, all the evidence being taken together, compel to any other conclusion.

So that, without being absolutely controlled by the terms of the lease, and without attributing conclusive effect to the first report and the decree thereon, we remain of opinion that the rental value per annum of $10 per front foot, and the sum of $1,800 as the value of the improvements, should be decreed. As to this last item, the lapse of time would not increase the value, and there is no evidence in the record of additional improvements since the filing of the bill, if subsequent improvements could in any aspect be allowed for.

And it should be observed that it is clear that under the circumstances this is not a case for the application of the principle of the acceptance by an appellate court of the conclusions of a master, concurred in by the trial court, when depending on conflicting testimony. We cannot permit our views to be overcome by presumptions in favor of this second report and decree.

The decree will be reversed at appellee's costs, and the cause remanded to the circuit court with directions to enter a decree to the effect that all the right, title, claim, and Interest of defendant in and to lot 16, block 68, in the city of Hot Springs, Ark., be, and the same