able aid to the ruling of judges in summing up the evidence in such cases. These resolutions of the House of Lords are to be found in extenso in Mr. II. Wightman's work on "The laws relating to the Medical Profession." Another celebrated case, in which Mr. Cockburn appeared, was that of the Townshend Peerage case before the House of Lords, which consisted of a tacit claim of a person born in wedlock, but proved, nevertheless, to be illegitimate through impossibility of access on the part of his alleged father, to the Marquisate of Townshend. The case took the form of a bill for perpetuating testimony, the husband and wife being both alive, though living apart, and neither of them deposing personally on the occasion. In fact, it was a case resting entirely on circumstantial evidence which might have been confuted by the evidence of the lady, who, as was said by Lord Brougham, could not be cross-examined to bastardize her own issue, yet she refused to take the stand in favor of her own son although he at least was an innocent party to the fraud. Upon the marchioness declining to appear as a witness on behalf of her son, Mr. Cockburn, his counsel, took the manly course of assuring their lordships that his client had no desire to seek a false position, remarking that "titles without honor were indeed but empty baubles."

ance.

The tedious and patient investigation of the Tichborne case, together with the humorous and elaborate summing up by the late chief justice, are comparatively fresh in the memory of the legal profession. Never, perhaps, was a judge's temper more tried by counsel than on that occasion, but as both parties have now gone to their account, we gladly subscribe "De mortuis nil nisi bonum." Suffice it to say that Sir Alexander Cockburn had been one of Dr. Keneally's best friends at a time when the latter was somewhat under a cloud, and the pain that he must have experienced at the personal attacks made upon him in his judicial capacity, was well nigh past human endurance or forbearThe conduct of Sir Alexander Cockburn when acting in the capacity of British Commissioner or Arbitrator in the Geneva Arbitration, has been severely commented on, notably by Mr. Caleb Cushing, but the existing fact that the sum awarded on that occasion in favor of the claims of the United States, exceeded by some millions of dollars the proofs subsequently admitted, so that a large surplus remains still unaccounted for, may perhaps be received now that animosities are hushed in the silence of the tomb, as some extenuation of a protest that doubtless was made honestly and patriotically even though ill-judged and without avail. As, however, this consideration trenches on the delicate domain of international susceptibilities, we gladly pass on to the only remaining topic, viz. : that the late chief justice was never honored with a peerage usually deemed the ultima thule of judicial ambition. That Sir Alexander Cockburn might have been elevated to the House of Lords and have even been promoted to an earldom, there is little doubt. The House itself would have heartily welcomed both his judicial and statesmanlike qualities as invaluable additions to its prestige, and doubtless his wishes had been consulted by every liberal minority. Whatever, if any, were his private reasons for either declining or not seeking the usual honor, we believe public duty was paramount to all. Had he been summoned to the House of Lords he would have felt it a duty to take part in its judicial proceedings. This would have interfered with that undivided attention which the judiciary transition, under the new judicatory system, which has been on trial for some time in England, demanded especially at the hands of the chief justice of England. His hands were already full. That the Queen was desirous of showing her personal appreciation, was evidenced by her conferring upon him the grand cross of the order of the Bath - -an honor, we

believe, without precedent. As baronet, the ninth or tenth of his line, though succeeding to the dignity late in life, a moderu peerage could have added little lustre. He had achieved the position for which he was so well fitted, and was content to labor in his vocation remembering the injunction, "Whatever thine hand findeth to do, do it with thy might." As there is no pleasure without its alloy, so there is no career, however brilliant, that is not chequered by some disappointment. After having been a Fellow of his college for perhaps nearly twenty years, he became a candidate, upon a vacancy arising, for the Mastership or Presidency. To his chagrin he lost the election, and the college lost an opportunity of adding to the roll of eminent jurists who had for centuries presided over the great law college of Cambridge University. Upon subsequently resigning his Fellowship they, however, made the only amends in their power by electing him an honorary Fellow, and we believe, in creating one or more law studentships, at his suggestion, out of the proceeds of the Fellowship thus vacated for that purpose. We may mention, in passing, that among the eminent men connected with this college (Trinity Hall) with whom the chief justice was more or less associated, were the late Sir Herbert Jenner, the well-known ecclesiastical judge (the Master), Professor Sir James Stephen, K. C. B., the father of Sir James Fitzjames Stephen, K. C. S. I., now one of the judges of the Court of Queen's Bench, and Mr. Leslie Stephen, the author, a Fellow and one time tutor of the college; and Sir H. Sumner Maine, K. C. S. I., a Fellow and regius professor of civil law, and Sir John Dodson, Queen's advocate. We can therefore well understand the annoyance experienced by Sir Alexander at his defeat, as before mentioned. Certain moral peccadilloes were alleged to be the cause of the untoward result, but with the private and domestic life of the chief justice we feel we are not at liberty to deal. Such, however, has been severely commented upon in some of the public prints, otherwise we should not have alluded to it. Honi soit qui mal y pense, is the motto we adopt. One thing is certain. He was a good father and never allowed his indiscretions to be visited upon his children. Legitimate or illegitimate he treated them as the former- they were received into society and were the solace of his declining years- and now that he is gone the secret of their birth has died with him. He was a great and in many respects a good man. A firm friend and an impartial judge - peace be to his ashes and honor to his memory. It may be added that the subject of our sketch was a man of varied accomplishments, a keen sportsman, a skillful yachtsman, a society man of the best type, dividing his leisure hours between a contemplation of the muses and the ratiocination which accompanies a study of the abstruse and exact sciences, Euclid being one of his favorite subjects of mental recreation; and yet he could find time to contribute to the periodicals of the day, his last effort in that respect being entitled "A History of the Chase," in which he exhibits much archaic, classical, and sylvan lore. The subject was to have been continued but for the inevitable hour that awaits all aspirations. "The paths of glory lead but to the grave.' The perseverance with which for forty years the chief justice strove to obtain the release from prison of a man as he believed erroneously convicted of murder and sentenced to imprisonment for life, is a trait in his character betokening at once benevolence and innate love of justice; for he had no personal interest to serve, neither was he at any time engaged professionally in the case. He simply was present at the trial as a member of the bar was satisfied of the man's innocence, and never rested till, we believe, only last year his perseverance was crowned with successs.

NEW YORK, Nov. 30, 1880.

HUGH WEIGHTMAN.

DETENTION OF EXTRADITED PRISONER UNDER CIVIL PROCESS.

ENGLISH COURT OF APPEAL, JULY 23, 1880.

POOLEY V. WHETHAM. "Offence" in the 19th section of the Extradition Act, 1870, means a crime whether a felony or a misdemeanor, is not confined to political offenses, and does not include a contempt by disobedience to an order of court in a civil proceeding.

Where a man has been arrested on a charge, under a process which it was within the jurisdiction of the court to issue, and is discharged from custody because the grounds of the charge fail, a detainer lodged against him, after the arrest but before the discharge, is not rendered illegal or invalid by reason of such failure. An attachment was issued against a party to an action for his disobedience of an order of court. Being bankrupt and abroad, he was brought back to England under a warrant issued under the Extradition Act, 1870, in respect of an alleged offense under the Bankruptcy Act 1869, and confined in gaol pending inquiry into the charge before a magistrate. While he was so in custody, the attachment was lodged with the keeper of the prison. On the inquiry before the magistrate the charge was dismissed as groundless. It was not proved that the extradition proceedings were a device to bring over the prisoner in order that he might be subjected to the attachment. Held, that the prisoner was not entitled to be discharged from custody till he had purged his contempt by obeying the order.

ΟΝ

N the 1st Jan. 1879, A. G. Pooley commenced an action against Sir Charles Whetham, the Metropolitan Bank Limited, and Frederick Nalder, Sir Charles Whetham being the chairman and Nalder being the secretary of the bank, claiming a declaration (1) that Nalder was a trustee, subject to certain debentures and advances held and made by the bank, of the Jersey Railway; (2) specific performance of an agreement concerning the railway; (3) damages, and (4) an injunction to restrain the defendants from disposing of the railway.

In February, 1879, the defendants delivered a defense and a counter-claim for an account of the moneys due by Pooley to the bank and Nalder, and for payment of the moneys found due.

On the 9th August, 1879, the court appointed Francis Cooper as manager of the undertaking of the Jersey Railway, and receiver of the rates, tolls, and sums of money arising therefrom.

Cooper being unable to obtain possession of the railway from the plaintiff, the court, on the 3d September, 1879, ordered the plaintiff to give up possession to Cooper, as the receiver and manager.

Pooley was on the 4th September personally served in England with the order of the 3d September, and on the 5th September he was served with notice of an application for a writ of attachment for not obeying the order of the 3d September.

On the 10th September, 1879, the court made an order that the defendants should be at liberty to issue an attachment against Pooley for his contempt in not giving up possession of the railway to the receiver pursuant to the order of the 3d September.

Pooley was then abroad where he continued till brought over in custody as previously mentioned.

On the 22d October, 1879, Pooley was adjudicated a bankrupt in the London Bankruptcy Court on the petition of Sydney Cooper.

On the 23d May, 1880, a warrant was issued under the Extradition Act 1873, at the instance of the trustee in bankruptcy acting under the order of the London Bankruptcy Court, for the arrest of Pooley for offenses under the Bankruptcy Act 1869, in obtaining money under the bankruptcy and not accounting for it, and not delivering up books.

On the 1st June, 1880, Pooley was arrested in Paris under this warrant. He was kept in confinement there till about the 10th June, when he was brought to London and confined in Newgate gaol. The charges against him were investigated at the Guildhall Police Court on the 11th, 18th, 23d and 28th June, and on the last day the sitting magistrate dismissed the charges as groundless.

On the 7th June the defendants obtained an order from the Chancery Division that the sheriff of London should be at liberty to lodge the writ of attachment with the governor of Newgate goal, and that such governor should deliver Pooley, when he should be released from such criminal charge, to the governor of Holloway prison, there to abide until Pooley should have purged his contempt by obeying the order of the 3d September.

Pooley, on the dismissal of the charges against him, was handed over to the governor of Holloway prison where he had since remained.

On the 9th July, 1880, Pooley applied to Bacon, V. C. (who had made the order of the 7th June), to discharge the order of the 7th June, and to discharge Pooley from custody.

In an affidavit in support Pooley stated, that since the dismissal of the charges against him he had had no opportunity of returning to Paris; that since service on him of the order of the 3d September he had not been in the island of Jersey, and it had not been within his power to comply with the order; that his interest in the railway had been sold; that he had been adjudicated bankrupt nominally at the instance of Sydney Cooper, but, in fact, at the expense of Arthur Cooper (who was the brother and partner of Francis Cooper, the receiver, and the liquidator of the bank, which in the meantime was being voluntarily wound up). Pooley also stated that the criminal proceedings were instituted against him by H. F. Barnett, who, he alleged, had previously acted as solicitor for the receiver, and that he believed Barnett was employed by or on behalf of the Metropolitan Bank, or its successor, the Royal Exchange Bank, first to purchase a debt of one Lovelock and afterward to procure the appointment of a nominee of his own, as trustee in the bankruptcy, with the object and intention of preferring a criminal charge against Pooley for the sole purpose of obtaining his extradition from France, and so bringing him within reach of civil process, and without any real belief in his guilt, or the slightest expectation of obtaining his conviction.

Pooley and other persons on his behalf made other affidavits detailing circumstances alleged in support of the application.

Affidavits were filed on behalf of the defendants, denying the alleged collusion of the receiver or liquidator with the persons at whose instance the extradition proceedings were commenced or continued.

On the 9th July the motion to discharge came on before Bacon, V. C., who gave the opinion.

BACON, V. C. No doubt this case is one of very great importance, arising as it does upon the supposed view of an act of Parliament, which concerns not only the people in this country but in foreign countries. The provisions of the act of Parliament are very plain. The act relates to crimes and to nothing else. The title is "An act for amending the law relating to the Extradition of Criminals." The 3d sub-section of the 3d section to which Mr. Horton Smith referred me, provides that, "A fugitive criminal who has been accused of some offense within English jurisdiction, not being the offense for which his surrender is asked, or is undergoing sentence under any conviction in the United Kingdom, shall not be surrendered until after he has been discharged, whether by acquittal or on expiration of his sentence or otherwise." "Accused" and "con

victed" are the words used in that section, and the 19th section upon which Mr. Horton Smith mainly relies, is as follows: "Where, in pursuance of any arrangement with a foreign State, any person accused or convicted of any crime, which, if committed in England, would be one of the crimes described in the first schedule to this act"-and this offense against the bankruptcy law is one, no doubt" is surrendered by that foreign State, such person shall not, until he has been restored or had an opportunity of returning to such foreign State, be triable or tried for any offense committed prior to the surrender in any part of Her Majesty's dominions other than such of the said crimes as may be proved by the facts on which the surrender is grounded." Now, without going into the policy of the act of Parliament, further than the mere perusal of it renders it inevitable, nothing can be clearer than that the act of Parliament deals with crimes, and with nothing else. For the public safety and for the sake of public justice, there is a power to procure the extradition of a fugitive criminal in order that he may be tried here. Then, in order to guard against its being made oppressive against people who have committed no crime other than a political offense-for any other offense not criminal- there is that protection inserted in the act of Parliament. What has that to do with a man who, having been accused and I must take it, wrongfully accused, since he has been acquitted of the charge against the bankruptcy law has been brought over here? Am I to hold that because that prosecution has failed, he is to be taken carefully back again to the place from which he came, that every outside influence is to be excluded, and that he is to have a privilege, which the subjects of Her Majesty do not enjoy; that he is to go scathless, free from any demand which may be made against him? Surely I cannot so read the act of Parliament. I can read the positive enactment that he shall not be tried; but he is not being tried, when, by reason of his disobedience to the order of this court, there is an order for his committal - - an order which he fought, opposed and resisted, and which was decided against him. His disobedience to that order is a continuing breach. That continues as well after he is acquitted of the charge as it existed before. It is no new offense in one sense. He still refused to obey the process of this court, and he refuses to this moment. Neither upon the terms of the statute, which I have looked at with the greatest care and caution, nor upon the meaning of the statute, can I find the slightest application to this case, that of a man who, being a suitor of this court, defies the practice of the court, and says that he places himself beyond the reach of it. As to the merits, in my opinion, they are disposed of by the fact that he appeared upon the occasion of the application for the order and resisted it, and that the decision was against him. The decision being against him, he has made no attempt other than by a tag at the end of his present notice of motion, to dispute the decision. It is too late for him to appeal against it. Then it is said that he is not able to comply with the order. I heard his affidavit upon that subject. What he says, curiously enough is, "I was not in Jersey at the time;" but he does not say, "therefore I could not deliver up possession." A man who is not in Jersey at the time when he ought to have obeyed the order, of course could not then and there deliver up; but that is all he says by way of excuse for his non-obedience to the order of the court. It may be said to be a laudable attempt, but in my opinion it is one which entirely fails. The plaintiff in this suit did no more than the law entitled him to do; he lodged a writ of attachment with the officer, on the allegation that the person sought to be attached was, or soon might be, in the custody of the officer with whom the writ was lodged.

On the 9th July Pooley, by special leave of the Court

of Appeals, gave notice of appeal from the refusal of Bacon, V. C., and on the 10th July, the appeal came on for hearing.

64

Horton Smith, Q. C., and Northmore Lawrence (Sir H. S. Gifford, Q. C., with them), for Pooley. The detention of Pooley under the attachment was improper, whether there was collusion between the receiver and the trustee in bankruptcy to get Pooley into the country under the warrant for the real purpose of executing the attachment or not. The locking up him at all was illegal. [James, L. J. There is nothing illegal in the arrest.] The charge having failed, the detainer on the writ of attachment is inoperative to entitle the defendants to keep him in prison. If the first arrest is wrong and a detainer is afterward issued, that fails as well as the original arrest. Ex parte Ross, 1 Rose, 260. [James, L. J. That was on the ground that the law did not sanction the arrest, but here the law did authorize the arrest,] In Chapman v. Freston, 3 L. T. Rep. (N. S.) 105; 6 H. & N. 466, a bankrupt who was arrested under a ca. sa. when temporarily privileged from arrest, and against whom another ca. sa. was lodged with the sheriff after the privilege had expired, was ordered by the Court of Exchequer to be discharged from custody on the ground that the detainer was illegal when the arrest was illegal. [Cotton, L. J. There was an act of Parliament which said that under the circumstances the man should not be arrested.] In Bateman v. Freston, 3 L. T. Rep. (N. S.) 806; 3 Ell. & Ell. 577, the Court of Queen's Bench dissented from the judgment of the Court of Exchequer in Chapman v. Freston. The bankrupt subsequently applied to Lord Campbell, L. C., for a writ of habeas corpus, and the matter came before the full Court of Appeal in Bankruptcy. The lord chancellor said: Assuming the arrest to have been unlawful, I must say that both on principle and authority the judgment of the Court of Exchequer seems to me to be preferable," and the court ordered the bankrupt to be discharged from custody. Ex parte Freston, 3 L. T. Rep. (N. S.) 832; 3 De G. F. & J. 612. The ground on which Pooley was imprisoned having failed, his detention was illegal, and the detainer after the time when the charge was dismissed ought to have no effect. Under section 26 of the Extradition act 1870 (33 & 34 Vict., ch. 52), "Extradition crime" means a crime which, if committed in England, or within English jurisdiction, would be one of the crimes described in tho schedule. The schedule comprises offenses by bankrupts against the bankruptcy law. The same section defines " fugitive criminal" as a person accused or convicted of an extradition crime, which does not mean crime in the restricted sense of the word as Bacon, V. C., construed it. By section 3, sub-section 2, a fugitive criminal is not to be surrendered to a foreign State unless provision is made by the law of that State or by arrangement that he shall not, until he has been restored or had an opportunity of returning to Her Majesty's dominions, be detained or tried in the foreign State for any offense committed prior to his surrender other than the extradition crime proved by the facts on which the surrender is grounded. He is not to be brought over on one offense and then tried for another. And by section 19 a person surrendered by a foreign State shall not, until he has been restored, or had an opportunity of returning thereto, be triable or tried for any offense committed prior to the surrender in any part of Her Majesty's dominions other than such of the said crimes as may be proved by the facts on which the surrender is grounded. [James, L. J. Pooley has not been tried. The attachment is coercion, not punishment.] Pooley's offense in disobeying the order was committed prior to the other offense. [James, L. J. It is committed every day that he neglects to obey the order.] But disobedience was committed before, and

I admit that he is liable to be re-arrested the moment he is discharged. [Brett, L. J. It must also be an offense triable.] If he is not triable he can never be punished. [Cotton, L. J. If he was tried, it was long before the extradition. Brett, L. J. Does not the word "offense" mean a criminal offense?] No. The only way he is tried is by a writ of attachment being issued against him. [James, L. J. The 3d section says prisoners shall not be "detained," but no such word occurs in the 19th section. And there is nothing in the act which says a man may not be arrested under an old conviction.] The principle upon which the act was framed was, that a man should not be extradited for an offense to which the act applied, and then be punished for an offense for which he could not have been extradited. If Pooley is being tried for his disobedience before his arrest, the act applies; if for an offense committed since, a new attachment is necessary. It is a very narrow construction to say he cannot be tried, but that he can be punished without trial. Suppose a man had been convicted of a political offense and then escaped from custody on his way to prison, could he be brought over for an extraditable offense and then punished for his political crime? If collusion can be shown, that will be sufficient to make the detention illegal. Stein v. Valkenhuysen, El. Bl. & El. 65. [Brett, L. J. It is conceded that collusion of the kind there stated would set the arrest aside. The defendant was induced to come to England by a concerted fraud taken part in by the creditor, who afterward arrested him.] The evidence shows that the extradition warrant was a mere device for bringing Pooley within reach of the attachment.

Hemming, Q. C., Pollard and Alexander Young, for the defendants, were called on only as to whether the defendants, by their conduct, were prevented from availing themselves of the extradition proceedings.

Witnesses for both parties were called and examined before the Court of Appeal, the effect of whose evidence sufficiently appears from the judgments delivered.

JAMES, L. J. The more important question in this case, the public question apart from the importance to the individual concerned, is the construction of the Extradition Act of 1870, the 19th section of which, the learned judge before whom this matter came first of all (Bacon, V. C.) is reported to have said, was confined to political offenses - to prevent men being tried for political offenses. I think that what the vice-chancellor said was not correctly taken down, as it is quite clear that the section does not say that. No doubt the act had reference to political offenses, and was intended to prevent a man from being brought into a country on what wo should call an ordinary common-law offense, and then tried for some political offense for which he would not have been extradited. However, the act clearly applies to this, that a man is not to be tried for any offense committed prior to the surrender, other than some crime which may be proved by the facts on which the surrender is grounded. There is no doubt of that, and in my opinion, neither the words, nor what is called the spirit of the act of Parliament - that is to say, the true intent and meaning of the act of Parliament have any reference to what is, in this case, a mere civil process. Although the process assumes the form of punishment for contempt of court, it is merely to enforce obedience to an order of a civil court, to do something on behalf of, or for the benefit of, a private person. The process has no reference whatever to any offense committed against the State or against the sovereignty of the State, which are the offenses mentioned in the act. It appears to me that it is impossible to extend the words to such a proceeding as an attachment for a contempt, which is really only a process of coercion to compel the performance

of the order of the court in what, as I have said, is a civil matter. It did appear to us, however, when the case was opened, that there was no case at all made upon the affidavits on the other point-that there were circumstances leading, at all events, to a suspicion that the extradition had been obtained really by the defendants for the purpose of bringing Pooley to this country, in order that they might then have him within the jurisdiction of the court, so that they might attach him for that contempt. Independently of any Extradition Act or any act in the world, if any thing amounting to such an abuse of the process as that were resorted to, we should not have had the slightest hesitation in discharging the plaintiff from the attachment which had been so obtained, or from any attachment obtained through any other fraud. Therefore we desired to have the matter investigated. The case of the plaintiff, before it is established, has to be proved like any other case, and has to be proved, not by any suspicion, not by any inference, not from suspicious circumstances, but by evidence from which legitimate inferences can be drawn enabling us to say that the parties have made out to our satisfaction that the defendants were the persons who put in motion the proceedings under the Extradition Act in order to bring the plaintiff here. Now, before we can arrive at that conclusion, in my opinion, we must actually pronounce four persons guilty of willful and corrupt perjury, committed for the purpose of concealing and denying a most wicked conspiracy. That really must be proved, because, if what one says is true, the evidence of two other witnesses for the defendants is true and the case is clear. [His lordship commented on the evidence for the defendants, and continued:] I see no reason whatever to doubt it, and in my opinion, the case has entirely failed against the defendants or their solicitors. We are not to say whether the criminal prosecution was well founded or not. We are not trying an action for malicious prosecution against anybody, nor is it for us to say, what I cannot help thinking the greater part of the object of the examination and cross-examination is to see, whether any materials have been obtained to sustain such an action, if such an action should ever be brought. We have nothing whatever to do with that point, or what will be the result, if any thing of that kind is done. But certainly it has not been proved to my satisfaction that there was any conspiracy, or design, or device, on the part of the defendants to bring the gentleman into this country on the criminal charge with a view of arresting him on the attachment. On the contrary, it has been satisfactorily disproved, as far as I am concerned.

BRETT, L. J. In this case Mr. Pooley was brought into this country under a warrant granted by virtue of the provisions of the Extradition Act, 1870, and he was brought here and imprisoned under a warrant, upon a charge of an offense against the bankruptcy law, which is one of the offenses named in the Extradition Act. He was imprisoned here under that warrant until he was taken before the magistrates, and when taken before the magistrates he was discharged from that charge. But before he had been discharged a detainer had been lodged at the prison in which he was confined, on the ground that before he came here he had been guilty of contempt of court. An attachment was out against him, and it was claimed that he should be detained at that attachment for a contempt of court. Upon that state of facts it was first argued by Mr. Horton Smith that the imprisonment under the warrant was illegal, and that therefore no detainer at all could have any effect. The learned counsel said that the plaintiff was illegally imprisoned, because he was finally acquitted of the charge. Now that certainly is an argument which to my mind cannot be