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offenses other than the ones for which they were him by the law of the land. Judge Fancher, when surrendered, then this is a part of “the supreme this case was before him, held that the whole extralaw " which every court in this country is bound to dition “proceeding was unauthorized and illegal." apply in any case involving the question.
See 14 Abb. Pr. R. (N. S.) 333. If so, the treaty, This immunity, as we have previously shown, is both as a compact and a law, precluded any jurissecured in the extradition treaty of the United diction over Lagrave as against his right of asylum States with France; and hence, Lagrave, who was in the country from which he had been illegally resurrendered under that treaty, was, by“the supreme moved. His arrest and delivery in France were law,” entitled to its benefit. It was for a specified contrary to the treaty, and his arrest and detenpurpose, and that alone, that he was surrendered; tion in this country were no better. He had a and it was only in reference to that purpose that right by the law of the treaty to show this fact. any jurisdiction could be acquired over his person 8. The Chief Judge further says: “The right of without violating the treaty, unless he committed exemption from prosecution [for other than the exsome crime subsequently to his surrender, or chose tradition charge), if it can be said to exist at all, is to remain in this country. So the General Term of based upon the good faith of the government, the Supreme Court held; and this decision, though which is necessarily uncertain, and is a political and reversed, seems to us the only one consistent with not a judicial question.” We have in this statement the treaty, and, hence, with “the supreme law of a mixture of truth and error. It is true that such a the land."
right, if secured by treaty, cither expressly or by 7. The Chief Judge further says: “The indict- implication, binds the good faith of the government [of Lagrave) was for burglary in the third de- ment accordingly, and is, in this sense, based upon gree under our statute, and clearly not within the that faith, because it is in the compact. The govtreaty; but it is not for the defendant to raise this ernment cannot in good faith institute a prosecution question. The government of France had power to for any but the extradition charge. And yet it is surrender him for any offense, and even if deceived just as true in this country that the right, if seand defrauded, the defendant cannot interpose in cured by treaty, is also secured by law, since the its behalf. The question of good faith is for the treaty itself is a law; and hence, the question, two governments.” It is quite true that, as to "the when an extradited party is arraigned for trial, question of good faith" between the two govern- whether the right exists or not under the treaty, is ments, Lagrave was not the official representative of a question of law, and, as such, "a judicial queseither; yet it is to be borne in mind that France de- tion,” no matter what course the government, as a livered him up, not in the exercise of its general prosecutor, may pursue in the case. The duties and "power to surrender him for any offense,” but un- powers of the court, and the rights of the accused der proceedings in pursuance of a treaty, and on party by the supreme law of a treaty, do not dethe charge of burglary, which the French authori-pend upon the question whether the government, in ties must have supposed to be the burglary provided prosecuting that party, is observing or violating the for and defined in the treaty. Such, however, was obligations of the treaty under which he was surnot the fact as to the crime charged against him; rendered. The treaty being a law, the court is and on this point these authorities were mistaken, bound to protect him against any invasion of his and but for this there would have been no delivery. rights as secured by it. Lagrave was delivered for the common law offense The remark of the Chief Judge may be true in of burglary as set forth in the treaty, and for that countries where the construction of treaties is a alone; and this was not the offense charged. He purely political question; but, so far as it denies could not, of course, be tried for the offense in re- the judicial character of the matter referred to, it spect to which he was surrendered, since there was is not true in the United States, and cannot be, unno indictment against him charging that offense: less it is also true that extradition treaties are exand he should not have been held, detained or tried cepted from that provision of the Constitution which upon any other ground, since by the terms of the makes treaties of the United States a part of “the treaty, and, hence, by “the law of the land,” no supreme law of the land.” No one surely will prejurisdiction had been acquired over him for any tend that the Constitution contains any exception in other purpose.
respect to this class of treaties. Their character as To take advantage of the mistake, committed by laws is just as clear and complete as that of treaties the French authorities, as to the nature of the on any other subject. charge pending in this country, and use the juris- 9. The Chief Judge also adverts to the case of diction thus acquired for a purpose different from Caldwell, 8 Blatchf. C. C. R. 131, decided by Judge the one for which it was intended to be granted, Benedict, and to the opinion of the law officers of was not only to violate the treaty itself as a com- the British Government in the case of Burley. We pact between the two governments, but to disregard considered in a previous article the decision in the the rights of the surrendered party as secured to 'first of these cases, and simply here refer to what
We offer this comment upon the several points on
was then said, with the remark that the case arose Having shown that this country recognizes no inunder a treaty with Great Britain, while that of La- ternational extradition except as provided for by grave arose under a treaty with France.
treaty, and also quoted that section of the ConstiAs to the opinion of the law officers of the Brit- tution which makes treaties a part of “the supreme ish Government, in the case of Burley, it is to be law of the land,” the Judge further said: observed that that government, in the Winslow “By the constitution and law of Kentucky, the correspondence, rejected the opinion altogether, prisoner (Smith N. Hawes) stands indicted for the ofand declared that it was not a correct construction
sense of embezzlement, and he should be tried thereof the extradition stipulation between Great Britain acquitted if his guilt is not proven to the exclusion of
for and punished, if found guilty, according to law, or and the United States. It is not a little remarkable a reasonable doubt, unless by the provision of the that the Chief Judge should, in 1874, quote this treaty of 1842, heretofore referred to, it is illegal to opinion as an authority, when the English Extradi
go into the investigation of the case at this time.
If there be a treaty governing the subject, that tion Act of 1870 had entirely set it aside as a false
treaty as it now is, and not as it may be by subseopinion. One would suppose that, as to the proper quent conventions or high joint commissions beconstruction of the treaty between the two govern
tween the high contracting parties, is now to conments, the British Parliament in 1870 was quite as
trol. I am bound to take judicial notice of the good authority as the law officers of the crown in
treaty concluded at Washington on the oth of
August, 1842, between the United States and Great 1864.
Having quoted the treaty, the Judge then recontained in the deliverance of Chief Judge marked as follows: Church, not to call in question the authority of the “If, by the terms of this treaty, either expressed decision made by the Court of Appeals, but for the or implied, the prisoner, Smith N. Hawes, cannot purpose of showing that neither the decision nor be tried for any offense for which he was not extrathe logic in support of it is consistent with the ex
dited, then, although he may be within the bar of
this court, or in jail under the control of this tradition treaty of the United States with France.
court, as this court is bound to regard that treaty, As between the two decisions, that of the General it is outside of its jurisdiction to proceed with the Term of the Supreme Court, though reversed, seems trial, as “the supreme law of the land' otherwise to us the one which this treaty both sustains and provides; and this whole question hinges upon the
construction of the treaty.” demands. The other case in which the same question was
And as to this question of construction, we have judicially considered is that of The State v. Hares,
the opinion of the Judge in the following extract: arising in the criminal court of the county of Ken
“ By the terms of the article of the treaty now unton, in Kentucky, August, 1877, and reported in the
der consideration, it is only for certain offenses that
extradition will be permitted by either government. Amer. Law Times Rep., vol. 4, p. 524. Hawes was
Embezzlement is not one of those offenses. demanded from the Dominion of Canada on four It is urged in argument that there is no positive indictments, charging him with as many acts of stipulation against the trial of a non-extraditable
offense. forgery, and by the Canadian authorities he was
Why mention any offenses if a party can
be tried for any and every thing not mentioned? delivered up on three of them, one of the four not
When nations enumerate, do they not exclude every being regarded in Canada as furnishing a sufficient thing not enumerated?
Here we have by ground for delivery. He was brought to trial on this treaty a mutual agreement that certain offendtwo of these indictments and acquitted; and the
ers, and none others, may be extradited, to be tried.
Now if there be any thing agreed other two were dismissed on motion of the attorney upon between the two high contracting parties, it for the Commonwealth. The acquittal and the dis- was, that for the offenses therein enumerated, and for missal therefore disposed of all the charges on no other, there was to be a mutual surrender. which he had been extradited.
For nothing else could such a demand or surrender
be made; and when so made it is monstrous that There were, however, other indictments pending there should be a trial for any thing else. If there against Hawes, charging him with embezzlement, be any thing in the doctrine that when you enuan offense for which he was not and could not have merate rights or privileges, you are held to strictbeen extradited. Upon one of these indictments a
ness as to the rights enumerated, and that every
thing else not enumerated is not included, then it motion was made to bring him to trial; and whether follows, as a logical sequence, that the treaty here he could be so tried was the question which came having provided only for extradition as to certain before Judge Jackson for decision. After stating cases and under certain circumstances and proof, the case, the Judge proceeded to say:
the right of asylum is to be held sacred as to any
thing for which the party was not and could not be “And now the question is raised by the motion extradited.
I do not mean to say that he under consideration, whether this court can now [Hawes] may not hereafter be tried; but what I detain Hawes for trial of this or the other indict- mean to say is that, in the face of the treaty herein ments pending against him, for offenses charged to referred to, he is not to be tried until there is a have been committed prior to his extradition, and reasonable time given him to return to the asylum for which he was not extradited.”
from which he was taken."
Judge Jackson disposed of the case in accordance will dispose of it contrary to law, and contrary to with these views, and gave the prisoner the oppor- the Constitution of the United States. tunity of returning to Canada by ordering his dis- We can readily understand how a court may docharge from custody, which he immediately im-cide that a treaty does not, as a matter of fact, proved. The ground taken was that the treaty, secure immunity against trial for any but the extraconsidered as a compact between the two govern- dition offense, and on this ground proceed to try the ments, contemplates that the person delivered up party on other charges; but we cannot understand under it shall be tried only for the extradition charge how an American court can refuse to consider the or charges, and that, considered as a law, the treaty question, treat it as non-judicial, and dismiss it as a gives him a legal right against any other trial which mere matter of "good faith” on the part of the it is competent for him to present to a court, and government, when presented in the pleading of the which that court is bound to recognize and secure. extradited and accused party, or exclude the right The jurisdiction of the court to try Hawes on the of such immunity provided it be secured by treaty. charge of embezzlement, though complete under If thus secured, it is secured by “the supreme law,” the constitution and laws of Kentucky, was, accord- which every judicial officer is sworn to obey in ing to Judge Jackson, precluded by “the higher adjudicating upon the rights of parties. law” of the treaty.
Chief Judge Church, in the Lagrave case, argued, This differs very widely from the doctrine of in some parts of his deliverance, against the existJudge Benedict in the cases of Caldwell and Lawrence, ence of any such right by treaty, and, in other parts, and from that of the New York Court of Appeals in against the right of the accused party to present the the case of Lagrave, while it entirely accords with right to a court as a ground of defense, even if it the view taken by the General Term of the Supreme does exist. With all due respect to that distinCourt in the latter case. We regard it as sound guished jurist, we must, in the light of the previous law. Treaties in this country are laug for the gov- argument, regard him as incorrect in both positions. ernment of courts, both State and Federal; and it is
The extradition treaties of the United States secure their duty, alike in civil and criminal actions, to the right by an implication so clear that its denial apply them in determining the rights of parties in is not consistent with them; and the Constitution suits before them, whenever they affect those rights. of the United States makes these treaties a law in The fact that they are compacts between nations, respect to that right, and that law is a proper basis and, as such, the subjects of diplomatic considera- for a plea as to the offense for which an extradited tion and construction, does not change their char- party may be put on trial. acter as laws, or release courts from the obligation of taking cognizance of them, and giving effect to them, when individual rights are involved in them,
FURNISHED APARTMENTS. or guaranteed by them. They are not to be dismissed on the theory that they are mere compacts 66
“ I DON'T see that law rubbish is worse than ality with which judicial tribunals have nothing to do. other sort. It is not so bad as the rubbishy litThey are lards for the regulation of courts, and laws
erature that people choko their minds with. It doesn't
make one so dull.” This sapient remark of Mr. Rex in respect to the interests and claims of parties
Gascoigne (one of George Eliott's latest friends) is whose rights they affect. The Supreme Court of
the excuse for the appearance, at this season of rubthe United States, in the early case of Ware v. Ilyl
bishy magazine articles, of this olla podrida of cases. ton, 3 Dall. 199, asserted and applied this principle, Many a young bachelor, and many a young femie and has repeatedly affirmed it in subsequent cases. sole, is just now contemplating the advisability of An accused party, when called to plead to an in
taking a furnished hose, or, at the least, furnished dictment, has the legal right to appeal to the whole apartments. To such young people we would extend the
following words of advice, warning and information, law applicable to his case. If he can show that the
based upon the experience of bygone days. indictment has not been found according to law in Imprimis, to avoid all possibility of future disputaany essential particular, then it is not a legal accusa- tions with the owner of the furnished lodgings or tion; and this fact appearing, no court has the right house (as the contract concerning them is one concernto put him on trial upon such a charge. And so, if ing an interest in lands, within the purview of the a trial upon an indictment is precluded by a treaty advice, and have the agreement reduced to black and
Statute of Frauds) it is well to follow Mr. Woodfall's of the United States, which in that event would be white. In it should be specified the amount of rent, a part of the law applicable to the case, and superior the time of entry, the length of notice to quit required, to any State law, strange would it be if the party and other necessary particulars; and do not neglect to had no right to appeal to this law as a ground of
have affixed a list of the goods and chattels in the
apartments. defense. He has the right as a matter of law; and
Woodfall's Landlord and Tenaut, 8th
ed., 173 if the court ignores such a plea altogether, and
'Tis well to see that the taxes and the rent (unless treats the case as if no such right existed, then it the landlord owns the house) are paid up and are likely
to be kept so, for one's own personal belongings will be liable for his rent and taxes; unless, indeed, the local habitation chance to be in New England, New York, or some one of the other States of the Union where the power of distress no longer exists. Parsons on Contracts, vol. II, 517. Of course a man does not take much with him except his books, but his wife takes her clothes, her cat and her bird, and none of these are exempt from a landlord's warrant. Wearing apparel cannot be seized for debt but it can be for rent, unless in actual use. Mr. Bayues helped to decide this point. In 1794 he was eight weeks in arrears for his furnished lodgings, so a bailiff appeared on the boards, and took his raiment and that of Mrs. B., although part of it was actually in the washtub at the time, and Lord Kenyon, before whom the matter came, said that it was all right. Baynes v. Smith, 1 Esp. 206. The same judge, in another case, decided that a landlord could take the clothes belonging to a man's wife and children, while they, the clothes screens (as Carlyle calls them), not the clothes, were in bed, and which the bipeds -thus left naked -- were in the daily babit of wearing, on the ground that they were not in actual use. Bisset v. Caldwell, 1 Esp. 206 p. As for the cat, Coke said, ages ago, that pussies could not be distrained, because in them no man could have an absolute and valuable property; but that reason is not applicable to costly Angoras, and cessante ratione cessat et ipsa lex. Woodfall says a bird may be taken (p. 284). Unfortunately the poor creature seized upon cannot make the other tenants or lodgers pay their share toward the debt. llunter v. Hunt, 1 C. B. 300.
Because this right to distrain is a grievous remedy, in some places only the goods of the debtor himself are allowed to be taken, and not those of an undertenant. Parsons, vol. I, 518; Archer v. Wetherell, 4 Hill (N. Y.), 112.
If any new furniture is to be placed in the rooms by the landlord, and the intending lodger desires it done, the agreement had better be put into writing; for then no rent is payable uutil the promise is fulfilled. Medielen v. Wallace, 7 A. & E. 54; Vaughan v. Hancock, 3 C. B. 766.
Fortunately, when one gets settled in his abode, he need not care if the water pipes in his rooms leak through the floors and injuriously affect the property of the tenant below, provided the defect was not known to him, and could not have been detected without examination, and there has been no negligence on the tenant's part, for he is not bound at his peril to keep the water in the pipe. Ross v. Fedden, 7 Q. B. 661. The occupant of an adjoining apartment may, and probably will, if he has any æsthetic sensibilities, object to a stove pive going from your room to the chimney in his; but if there had been one there before his arrival in the house, the strong arm of the law will nullify his opposition, for then he took his room subject to the easement of the black cylindrical smoke conductor and its necessary hole in the chimney, and he cannot cause your kettle to cease from singing or your pot from bubbling because his sense of the sublime and beautiful is offended. Culverwell v. Lockington, 24 C. P. 611.
Sometimes in these latter days of shoddy and of shams the boiler attached to the kitchen stove will explode with terrific uproar, doing considerable damage to the nerves of the inhabitants, and slight injury to the coarser portions of the human frame divine.. If such a thing happen in a furnished house,
even though caused by the want of a safety valve, the tenant need not, at least if in New York State, rush off to attack his landlord, unless he can prove that the latter kuiew of the defect, or had reason to apprehend a catastrophe if the boiler was used. Taffe v. Harteau, 56 N. Y. 398. Although on one occasion the courts in the Empire State held the owner of the house liable for injuries caused by an explosion of gas arising from the pipes not being properly secured. Kimmell v. Burfied, 2 Daly (N. Y.), 155.
If it happen that on a rainy day, a drip, drip, drip, a patter, patter, patter is heard in the room, and ugly splashes of water are seen descending upon a most costly carpet or valued book, 'tis useless to cry out that the landlord must pay for the mischief done by his leaky roof; for, as Baron Martin lately observed, one who takes the floor in a house must be held to take the premises as they are, and cannot complain that the house was not constructed differently. The storm may have blown off some shingles, and then, even were he bound to use reasonable care to keep the roof secure, he cannot be held responsible for what no reasonable care or negligence could have provided against. He could not certainly be considered guilty of negligence, if he had the roof periodically examined, and it was all secure when last looked at. Carstairs v. Taylor, L. R., 6 Ex. 223. But, by the way, in New York, a landlord, who himself occupied the top flat, and allowed liquids to leak through into the rooms of his tenants below, was held liable. · Stapenhurst v. Am. Man. Company, 15 Abb. Pr. (N. S.) 355. A lay man might imagine that a landlord must keep his house in good order so that the occupant be not damnified, but a cleric knows that the law says quite the reverse; that he is not bound to do any repairs, however necessary, except such as he expressly agrees to do; no promise is implied; nor need he do any thing, even though the main walls gape and yawn threateniugly, and the pumps have to be worked seyeral hours daily to keep the basement free from water. Arden v. Pullen, 10 M. & W. 321; Keutes v. Cadogan, 10 C. B. 591; Gott v. Gandy, 2 E. & 845; Wiltz v. Matthews, 52 N. Y. 512; Tuffe v. Harteau, 50 id. 398. 'Tis true, that, in New Hampshire, a couple of years ago, it was held that a landlord is liable for injuries accruing to his tenants if he negligently builds his house, or carelessly suffers it to continue in disrepair. Scott v. Simons, 51 N. H. 4:26. But then, a very high American authority tells us that the decisions of the courts of other States are entitled to more weight than those of New Hampshire. 16 A. L. J. 419.
Unfortunately for the poor tenant, he must continue to pay rent, however wretched his house becomes, unless there bas been an error or fraudulent misdescription of the premises, or they are found to be uninhabitable through the wrongful act or default of the landlord himself. Lyon v. Gorton, 7 Scott, 5:37; and perhaps even then. Surplice v. Farnsworth, 7 M. & G.576. Even if the fire fiend swallows up the building, the landlord is entitled to his rent, just as if all had gone on as merrily as marriage bells, until regular uotice to quit has been given, and the required time has rolled round. Packer V. Gibbons, 1 Q. B. 421 ; Fowler v. Payne, 49 Miss. 32. Of course, the length of notice required depends upon the nature of the tenancy, whether it be a yearly one, or from quarter to quarter, month to month, or week to week: a half year's or a quarter's, or a month's, or a week's notice
being requisite, as the case may be. Parry v. Ilazell, land, that it should be reasonably fit for habitation,
case of a house infested with vermin; if bugs be found In the case of furnished lodgings, all the rent is in the beds, even after entering into possession, the deemed to issue out of the land, none out of the tables lodger or occupier is not bound to stay in it. Supand chairs, pots and pans. Newman v. Anderton, 2 Bos. pose, again,” his lordship continues, "the tenant dis& P. New R. 224; Cadogan v. Kennet, Cowp. 432. covers that there are not sufficient chairs in the house,
The law will allow a landlord to make himself disa- or they are not of a sort fit for use (short of a leg, greeable in many ways, but he cannot insist upon lock- we presume) he may give up possession.” Hart v. ing up the hall door at an early hour in the evening;
Windsor, supra. And so late as April in the last year of for when he rents his rooms he impliedly grants all grace, Lord C. B. Kelly said it was his opinion, both on that is necessary for their free use and full enjoyment authority and on general principles of law, that there (and that, in the case of most mortals, includes the is an implied condition that a furnished house shall use of the hall and stairs) whenever required, and not be in a good and tenantable state, and reasonably fit merely when he in his discretion may deem best. Muc- for human occupation from the very day on which the lennan v. Royal Insurance ('ompany, 39 U.C. R. 515. tenancy is to begin, and that when the house is in such Nor can he object to the free use of the bell and a condition that there is either great discomfort or knocker; in fact, an action will lie against him if he danger to health in entering or dwelling in it, then the attempts to interfere with the reasonable use of all the intending tenant is entitled to repudiate the contract necessary adjuncts of his furnished apartments. Un altogether. Wilson v. Finch Hutton, L. R., 2 Ex. derwood v. Burrows, 7 C. & P. 26. Though, if the
Div. 343. Judge Shaw, of Massachusetts, says that tenants are an undesirable class, the proprietor might,
when furnished rooms in a lodging-house are let for a in mitigation of damages, show that he acted in this particular season, a warranty is implied that they are surly way for the express purpose of getting rid of his suitably fitted for such use (Dutton v. Gerrish, 63 lodgers. Id.
Mass. 94), and Abinger thought that the proprietor was Occasionally newly-arrived tenants of furnished
bound to supply whatever goods and chattels might rooms find that all the previous occupants have not
be necessary for the use and occupation of a house such moved out; that some - small, but aldermanic in shape
as the one let. – have no intention of leaving. Unwilling to test the
Across the line it has been held that the existence of truth of the scientific assertion that these creatures all a noxious smell in a house does not afford the tenant retire to their nooks and crannies shortly after mid- a reasonable excuse for leaving. Westlake v. De Grau, night, these fastidious individuals eagerly inquire if 25 Wend. 669. But my lady, the Dowager Countess they can at once quit the haunted house. It seems of Winchelsea, found otherwise. She agreed to rent a that they can. Long since Baron Parke said that the furnished house in Wilton Crescent, London, for three authorities appear fully to warrant the position months of the season of 1875 for 450 guineas; but when that if the house is incumbered with a nuisance of
she arrived, with her servants and personal baggage, an 80 serious a nature that no one can reasonably be ex
unpleasant smell saluted her aristocratic nostrils, so pected to live in it, the tenant can give it up; because she declined to occupy the mansion, and, ordering there is an implied condition that the owner rents the
round her horses, drove off. Ou investigation, the place in an habitable state. Lord Abinger went even
drains were found to be in a shocking state; it took further, and stated that he thought no authorities were three weeks to make the place fit for habitation, and wanted to establish the point, that common sense was
then the Countess refused to go back or pay any enough to decide it. He thought that tenants wore
rent. The lawyers then had to appear on the scene fully justified in leaving under such circumstances. and after them the judges. These latter bewigged Smith v. Marrable, 11 M. & W. 5; Addison on Cou- gentlemen unanimously held that the state of the tracts, 375.
drain entitled her ladyship to rescind her bargain Some gentlemen, learned in the law, have, however,
and refuse to pay the rent. Wilson v. Finch Hatton, L. thought that these judges were mistaken in this, be
R., 2 Ex. Div. 336. cause, in some later cases, it has been held that there Some people object to scarlet fever and small-pox is no implied warranty in the lease of a house, or of (perhaps rightly so) and do not like to take up their