to sending in a false account, or that other conspirators coöperated in the fraud, does not affect the result that on the evidence Kelly obtained the money from the Provincial Government by fraudulent representations to which he was a party and that his false statement was the foundation upon which the Government was deceived. The last charge, stealing or embezzling and receiving money fraudulently obtained needs a word of explanation. It may be assumed that there is no evidence of larceny or embezzlement as (commonly) defined, but the receiving of property known to have been fraudulently obtained is a crime by the laws of both Canada and Illinois. There may be a doubt whether the appellant, if a party to the fraud, received the money of the Government directly from it, or through a third hand so as to be guilty under this count of the complaint. We are not prepared to pronounce his detention upon the count unjustifiable in view of the finding. We assume, of course, that the Government in Canada will respect the convention between the United States and Great Britain and will not try the appellant upon other charges than those upon which the extradition is allowed. Therefore we do not think it necessary to require a modification of the complaint before the order discharging the writ of habeas corpus is affirmed. Final order affirmed. Argument for Plaintiff in Error. 241 U. S. OSBORNE, RECEIVER OF THE CHATTANOOGA SOUTHERN RAILROAD COMPANY, v. GRAY. ERROR TO THE SUPREME COURT OF TENNESSEE. No. 373. Argued April 3, 1916.—Decided April 17, 1916, In an action by representatives of an employee for his death, from negligence of an interstate carrier by rail, defendants are entitled to insist upon the applicable Federal Law as the exclusive measure of liability, whether plaintiff presents his case under the Federal or state law. In the absence of a showing bringing the injury within the Federal act, the question whether the declaration permits a recovery at common law is a state, and not a Federal, question. Where there is no evidence showing that the deceased was engaged in interstate commerce when killed, the court cannot supply the deficiency by taking judicial notice of that fact, basing its knowledge on facts such as that the location of the accident was near the border of the State and the direction from which the cars came. An interstate carrier, defendant in an action for death of an employee, is bound to know the actual movement of its trains and whether they were interstate, and if it fails to inform the court on this point, it cannot complain that it is deprived of a Federal right because the court does not take judicial notice of facts bearing thereon. THE facts, which involve the validity of a verdict under the Employers' Liability Act, are stated in the opinion. Mr. William L. Frierson, with whom Mr. Lewis M. Coleman was on the brief, for plaintiff in error: Where it appears either in the declaration or in the proof that the accident occurred in interstate commerce, the Act of Congress controls and, in case of death, a widow cannot recover in her own name. Wabash R. R. v. Hayes, 234 U. S. 86; Toledo &c. R. R. v. Slavin, 236 U. S. 454. 241 U. S. Argument for Plaintiff in Error. The amendment of the amended declaration amended both counts and, therefore, there was no count which did not allege interstate commerce or under which a widow could recover in her own name. The view expressed by the state court that only the second count was amended is not conclusive on this court. Light Co. v. Newport, 151 U. S. 537; Covington Turnpike Co. v. Sandford, 164 U. S. 595; Mitchell v. Clark, 110 U. S. 663; Boyd v. Nebraska, 143 U. S. 135; Vandalia R. R. v. Indiana, 207 U. S. 367. From the facts which were established by evidence introduced before the jury, and from general knowledge the trial court was bound to know judicially and this court will know that the Chattanooga Southern Railroad extends from Chattanooga to the Georgia state line, and then through the State of Georgia and to Gadsden in Alabama; that Chattanooga is only about four or five miles from the Georgia state line and its suburb of Alton Park, immediately south of it, is almost on the state line. Peyroux v. Howard, 7 Pet. 324; United States v. La Vengeance, 3 Dall. 297; United States v. Lawton, 5 How. 26; Watts v. Lindsey, 7 Wheat. 162; McNitt v. Turner, 16 Wall. 352; Wheeling Bridge Case, 13 How. 561; United States v. Thornton, 160 U. S. 458-9; Waters-Pierce Oil Co. v. DeSelms, 212 U. S. 159; Schollenberger v. Pennsylvania, 171 U. S. 9-10; New Mexico v. Denver &c. R. R., 203 U. S. 38; Nicol v. Ames, 173 U. S. 516-17; Gibson v. Stevens, 8 How. 399; Brown v. Spillman, 155 U. S. 665; United States v. Trans-Missouri R. R., 166 U. S. 290; Louisville Trust Co. v. Louisville &c. R. R., 174 U. S. 674; Black Diamond Co. v. Excelsior.Co., 156 U. S. 611; Sligh v. Kirkwood, 237 U. S. 52; Greenleaf on Evidence (15th ed.), § 6; Thorson v. Peterson, 9 Fed. Rep. 517; Gilbert v. Moline, 19 Iowa, 319; Coover v. Davenport, 1 Heisk. (Tenn.) 368; St. Louis v. Magness, 68 Arkansas, 289; Perry v. State, 113 Georgia, 938; Harvey v. Oklahoma, 11 Oklahoma, 156; Harvey v. Wayne, 72 Opinion of the Court. 241 U. S. Maine, 430; Bailey v. Birkhofer, 123 Iowa, 59; Bond v. Perkins, 4 Heisk. (Tenn.) 364; Bruson v. Clark, 151 Illinois, 495; Pearce v. Langfit, 101 Pa. St. 507; Blumenthal v. Pacific Meat Co., 12 Washington, 332; Seigbert v. Stiles, 39 Wisconsin, 533; Chamberlayne on Mod. Law of Evidence, 741; Hobbs v. Memphis &c., 9 Heisk. (Tenn.) 874; State v. Railroad, 212 Missouri, 677; Gulf &c. R. R. v. State, 72 Texas, 404; 16 Cyc. 861; Miller v. Texas &c. R. R., 83 Texas, 518; Smith v. Flournoy, 47 Alabama, 345. The opinion of the Court of Civil Appeals shows that the allegation which that court found to be supported by the evidence and upon which it based its judgment, is in the second and not in the first count. Mr. B. E. Tatum, with whom Mr. Felix D. Lynch, Mr. George W. Chamlee, Mr. Joe V. Williams and Mr. P. H. Thach were on the brief, for defendant in error. MR. JUSTICE HUGHES delivered the opinion of the court. This suit was brought, in the year 1908, by Jennie B. Gray to recover damages for the death of her husband who was employed in the operation of the railroad of which the plaintiff in error and another were receivers. The original declaration sought recovery for negligence, at common law, and did not allege that the deceased was injured while engaged in interstate commerce. The plaintiff was permitted to file an additional count and this was subsequently amended so as to allege the interstate character of the employment of the deceased at the time of his injury. The action was first tried in November, 1912; the jury rendered a verdict in favor of the plaintiff for $10,000 and judgment was entered accordingly. Thereupon, the trial judge granted a new trial upon the ground that he had erred in his instructions to the jury with respect to the burden of proof. At the second trial, in 1913, a verdict was directed for the defendants (the plaintiffs in error) and judgment in their favor was entered. The Court of Civil Appeals reversed this judgment and reinstated the judgment entered upon the verdict at the first trial. The Court of Civil Appeals did not consider the record of the second trial but was of the opinion that the verdict first rendered in favor of the plaintiff should not have been set aside. This decision was affirmed by the Supreme Court of the State, without opinion. The plaintiff in error presents for our consideration these assignments of error: (1) That the court erred in not holding that both counts of the declaration stated a case controlled by the Federal Employers' Liability Act and that, therefore, the widow could not recover in a suit begun in her own name; and (2) That the court erred in not holding that the evidence on the first trial made a case within the Federal Act. In support of the first assignment, it is insisted that the amendment inserting the allegation that the injury was sustained while the decedent was engaged in interstate commerce amended both counts of the declaration. The state court treated it as an amendment of the second count and thus the declaration on which the case was tried was deemed to contain two counts, "one under the common law of Tennessee and the other charging negligence under the Employers' Liability Act." From a Federal standpoint, the question is not important, for if it had been shown that the injury had been received in interstate commerce, the defendants would have been entitled to insist upon the applicable Federal law as the exclusive measure of their liability, and they would not have lost this right merely because the plaintiff had seen fit to present the claim 'in an alternative way' by means of separate counts. Wabash R. R. v. Hayes, 234 |