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carriages kept for a long time. Bennett never paid plaintiff the price of the horses and carriages, and absconded from defendant's inn without paying his bill, and leaving the horses and carriages there. Subsequently, having been taken into custody on a charge of swindling, he re-assigned the horses and carriages to plaintiff, to whom, however, defendant refused to give them up until Bennett's bill was paid. Defendant afterward sold the horses by public auction, and still retained the carriages. The court held, first, that defendant's lien upon the horses and carriages was a general one for the whole of Bennett's bill, and that plaintiff, not having tendered the amount of it to defendant, was not entitled to maintain his action to recover possession of the carriages or damages for their detention, and second, that the sale by defendant of the horses was a wrongful conversion, for which plaintiff could maintain his action, and that the measure of damages was the value of the horses. The decision as to the lien of an innkeeper, extending to all the property brought to the inn by the guest for all his expenses, is in accordance with the view taken by Story (Story on Bailm., § 476), who says that the cases do not support the doctrine advanced by some that a horse can be detained only for his own meals. See Thompson v. Lacy, 3 B. & A. 383; Sunbolf v. Alford, 3 M. & W. 248; Proctor v. Nicholson, 7 C. & P. 67; Jones v. Thurloe, 8 Mod. 172. The innkeeper cannot sell the property of his guest, but only detain it, and a sale is a conversion. Jones v. Peasle, 1 Stra. 557; Luckbarrow v. Mason, 6 East, 21, note; Walter v. Smith, 5 B. & A. 439; Cortelyou v. Lansing, 2 Ca. Cas. 200.

In the case of Manson v. Thacker, ex parte shaw, 38 L. T. Rep. (N. S.) 209, decided by ViceChancellor Malins on the 7th of February last, Croshaw had purchased freehold premises described as suitable for a building site, paid his purchasemoney, and took a conveyance. Several months afterward he discovered that a culvert ran underneath the property, to the use of which other persons were entitled, and he claimed compensation in respect thereof. The particulars of sale did not mention the existence of the culvert, but no fraud was imputed to the vendors. The conditions of sale provided that any error or misstatement in the particulars should not annul the sale, but that a compensation should be paid to or by the purchaser. The existence of the culvert might have been discovered by the purchaser before completion if he had carefully. inspected the property. The court held that, having completed his purchase, the purchaser could not enforce compensation in respect of the culvert. The court disapproved and refused to follow the case of Bos v. Hilsham, L. R., 2 Ex. 72, where a purchaser was allowed compensation for misrepresentation where the error

was discovered after the conveyance. But in Cann v. Cann, 3 Sim. 447, the vendor was held liable where a misstatement as to the annual value of the property was discovered after conveyance. In Hart v. Swaine, 37 L. T. Rep. (N. S.) 376, property was sold as freehold, which after the conveyance the purchaser discovered to be copyhold, and it was held that, assuming the vendor to have made the misrepresentation bona fide, it amounted to a legal fraud, and the sale was set aside. But see, as sustaining the principal case, Early v. Garrett, where a purchaser took the estate with all defects in title, and the vendor stated that no rent had ever been paid, which turned out to be false, and the title was merely under a lease, and it was held that the purchaser could not recover his purchase-money. Thomas v. Powell, 2 Cox's C. C. 394; Legge v. Croker, 1 Ball & Beav. 506. In the latter case, after the completion of the purchase, a right of way was discovered to exist, and the purchaser claimed compensation. It was held that no relief could be given, because the purchaser ought to have satisfied himself about the right of way before accepting the conveyance. See, also, Caballero v. Henty, 30 L. T. Rep. (N. S.) 314; Parham v. Randolph, 4 How. (Miss.) 435; Denston v. Morris, 2 Edw. Ch. 37; Abbott v. Allen, 2 Johns. Ch. 523; Chesterman v. Gardner, 5 id. 29.

The Court of Appeals of Kentucky, in the case of Greer v. Church et al., decided on the 23d of November, 1877, passes upon the effect of a contract purporting to be for the renting of a piano. The parties thereto, set forth that Church & Co. had contract, which was in writing and signed by both rented to one Mrs. Martin a piano valued at $550, and that she agreed to pay as rent for the same $400 for the first month; $10 per month for six months thereafter, and $20 per month afterward. Mrs. Cro-Martin was entitled to become the purchaser of the piano at $550, and the sums received for rent for

the first eleven months were to be allowed toward
the purchase-price. It was in evidence that Mrs.
Martin purchased the piano, paid on the contract
$410 and took possession of the piano, which she
subsequently sold to appellant Greer. Church & Co.
then replevied it. The court below instructed the
jury, at the trial of the replevin action, that if the
rent paid by Mrs. Martin on the piano did not
The
amount to $550, the plaintiff should recover.
Court of Appeals reversed a judgment for plaintiff,
holding that the transaction was a purchase and not
a lease, and that no matter whether the parties in-
tended the title to pass or not the law would, in
treat the title as being where the nature of the
furtherance of public policy and to prevent fraud,
transaction required it to be. See, as sustaining a
similar doctrine, Domestic Sewing Machine Co. v.
Anderson, 15 Alb. L. J. 64, where the Supreme Court
of Minnesota held in the case of a sewing machine
which was alleged to be leased and a written con-
tract of leasing produced, that parol evidence was
admissible to establish a contract of sale, antece-
dent to the lease, and that the lease was in conse-
quence void for want of consideration. See, also,
dus, 16 Alb. L. J. 442, where a similar agreement, in
note of case upon Victor Sewing Mach. Co. v. Har-
respect to a sewing machine, was treated as invalid
upon other grounds.

BRITISH EXTRADITION PRECEDENTS.
BY SAMUEL T SPEAR, D. D.

(CONCLUDED.)

5. The fifth case is that of Burley who, in 1864, was demanded from Canada by the United States, on the charge of having committed robbery on board the steamer "Philo Parsons" on Lake Erie. He claimed in Canada that he acted as an officer in the service of the Confederate States, then at war with the United States, and, hence, that he was protected against the charge by the right of belligerency; and yet he was surrendered by the Canadian authorities. Mr. Clarke, in his work on Extradition, sec. ed., p. 90, says that when he was brought to trial in the State of Ohio, "the judge ruled that if the acts complained of had a belligerent object, and were done under the authority of a Confederate commission, the animus furandi was wanting, and he must be held not guilty. The jury disagreed, and the prisoner, being released on moderate bail, did not reappear." That was. consequently, the end of the case, so far as the prisoner was concerned.

66

Judge Fitch, who tried this case, told the jury that "the theft must be found to have been made with felonious intent," and that the prisoner "had a right, if commissioned, to take the boat, money, or other property, for the futherance of his Government." He also said that "a state of war existed between the Federal Government and the Confederate Government, so called, and it made no difference whether the United States Government admitted it or not." "The charge was applicable only to a state of war." He consequently held that, as a soldier of the Confederate States Government, he [Burley] had a soldier's right to capture the steamer and appropriate her, and any money belonging to her, to the cause of his Government." Foreign Relations of the United States, 1876, p. 264. The language of Judge Fitch implies that robbery was the offense for which Burley was tried; and his doctrine is that, if the prisoner acted as a soldier of the Confederate Government, the "State of war" secured to him immunity against conviction on this charge.

"It was suggested that the American Government contemplated putting him (Burley) on his trial for piracy, which, however, did not prove to have been the case; but he seems to have been charged in the United States, though not before the Canadian authorities, with assault with intent to commit murder. The question was referred to the law officers in this country, and it was held that, if the United States put him bona fide on his trial for the offense in respect to which he was given up, it would be difficult to question their right to put him upon his trial also for piracy, or any other offense which he might be accused of committing within their territory, whether or not such offense was a ground of extradition or even within the treaty." Answer, 1032.

"We admit in this country that if a man is bona fide tried for the offense for which he was given up, there is nothing to prevent his being subsequently tried for another offense, either antecedently committed or not." Answer, 1036. See Clarke on Ex

tradition, sec. ed., note, pp. 90, 91.

Secretary Fish refers to this opinion of the then law officers of the British Government, as sustaining his view, and inconsistent with that of Lord Derby. He hence uses the opinion as an argument of the ad hominem character. Foreign Relations of the United States, 1876, p. 214.

What then did the British Government do with this opinion, and especially what did it say to the Government of the United States? Lord Russell, in a dispatch dated February 25th, 1865, ta Mr. Burnley, Her Majesty's representative at Washington, after referring to the application made in behalf of Burley, proceeded to say:

"I have to state to you that, having considered this application in communication with the proper law officers of the Crown, Her Majesty's Government are of opinion that if the United States Government, having obtained the extradition on the charge of robbery, do not put him on his trial upon this charge, but upon another, namely, piracy (which, if it had been made before the Canadian authorities, they might have held not sufficiently established to warrant his extradition), this would be a breach of good faith against which Her Majesty's Government might justly remonstrate. If, however, the United States Government does bona fide put Burley on his trial for the offense in respect to which he was given up, it seems to Her Majesty's Government that it would be difficult to question the right of that Government to put him upon his trial for piracy also, or any other offense which he may be accused of having committed within their territory, whether such offense was or was not a ground of extradition, or even within the treaty. Accordingly Her Majesty's Government can only so far comply with the application of Mr. Burley, senior, as to instruct you to protest against any attempt to change the ground of accusation upon which Burley was surrendered in pursuance of the treaty." eign Relations of the United States, 1876, pp. 261, 262.

For

The importance of this case grows out of the fact that, under the apprehension that Burley was about to be tried for piracy, the attention of the British Government was called to it, and that the question whether this would be consistent with the treaty of 1842 was submitted to the then law-officers of the Crown. The evidence taken in 1868 by the select committee of the House of Commons on Extradition, contains the following statement as to this case This is what Her Majesty's representative was dimade before the committee by the Right Hon. Ed-rected to say in regard to the case. What he did mund Hammond, the permanent Under-Secretary say we have in the following communication to Secfor Foreign Affairs: retary Seward:

"Her Majesty's Government, having considered this application, are of opinion that if the United States Government, having obtained the extradition on the charge of robbery, do not put him on his trial upon this charge, but upon another, namely, piracy (which, if it had been made before the Canadian authorities, they might have held not sufficiently established to warrant extradition), this would be a breach of good faith against which Her Majesty's Government might justly remonstrate. Her Majesty's Government are, therefore, willing, should the grounds upon which Burley is to be tried take the above turn, to comply so far with the application of Mr. Burley, Sr., as to instruct me to protest against any attempt to change the ground of accusation upon which Burley was surrendered in pursuance of the treaty." Id., p. 292.

This letter, addressed to Secretary Seward on the 15th of March, 1865, was a formal protest against putting Burley on trial for piracy when his extradition had been obtained on the charge of robbery, and against any attempt to change the ground of accusation upon which he was surrendered. It did not communicate to Mr. Seward that part of the dispatch of Lord Russell, in which his Lordship adopts the opinion of the law officers of the Crown. That opinion sustains the doctrine of Secretary Fish, with the qualification that the extradited person must first have a bona fide trial upon the charge in respect to which he was given up. Lord Russell adopted it, and communicated it to Her Majesty's representative at Washington; but the latter did not communicate it to the Government of the United States.

"Sir, I recur to your note of the 15th of March, which relates to B. G. Burley. The Honorable the Attorney-General informs me that it is his purpose to bring the offender to trial in the courts of the States of Ohio and Michigan, for the crimes committed by him against the municipal laws of those States, namely: robbery and assault with intent to commit murder. He was delivered up by the Canadian authorities upon a requisition which was based upon charges of those crimes, and also upon a charge of piracy, which is triable not by State courts, but by the courts of the United States. I am not prepared to admit the principle claimed in the protest of Her Majesty's Government, that the offender could not legally be tried for the crime of piracy under the circumstances of the case. Nevertheless, the question raised upon it has become an abstraction, as it is at present the purpose of the Government to bring him to trial for the crimes against municipal law only." Id., p. 280.

The answer of Mr. Seward shows that he regarded the letter of Mr. Burnley as a protest against putting Burley on trial for piracy, when, as the case was stated to him by the representative of the British Government, he had been delivered up simply on the charge of robbery. He says that he was not prepared to admit the principle set forth in the protest, but held that Burley, having been surrendered,

as he understood it, upon the charge of piracy, as well as upon that of robbery and an assault with intent to commit murder, might be tried for the piracy. The question, however, was a mere abstraction," since the Government did not propose to try him on the piratical charge.

(L

Mr. Seward, on the 20th of March, 1865, replied sell, in his dispatch to Mr. Burnley, having expressed to the protest as follows: the opinion that it would be a breach of good faith to put Burley on trial for piracy when he had been delivered up simply on the charge of robbery, qualified the expression by adopting and stating the opinion of the law officers of the Crown, and then directed Mr. Burnley "to protest against any attempt to change the ground of accusation upon which Burley was surrendered in pursuance of the treaty." 3. That Mr. Burnley, in his letter to Mr. Seward, made the protest as directed, but said nothing about the opinion of the law officers of the Crown, or its adoption by Lord Russell. 4. That Mr. Seward, not informed of this opinion, regarded the letter as a protest against trying Burley for piracy, when, as the British Government understood and officially stated the case, he had been surrendered simply on the charge of robbery.

All, then, that there is in this case, considered as a question of actual diplomacy between the two governments, is exactly in harmony with the general doctrine maintained by Lord Derby in 1876. What is not in harmony with that doctrine is the opinion of the law officers of the Crown, adopted by Lord Russell, but not communicated to the Government of the United States. It was not the subject of any correspondence between the two governments;

There was evidently some confusion of understanding between the two governments as to the charge on which Burley was extradited; yet, so far as Mr. Seward was officially informed, the attitude of the British Government was simply that of a protest against his trial for piracy, on the ground that this was not the offense for which the prisoner had been surrendered. Secretary Fish, in the Winslow correspondence, says that Burley was tried for assault with intent to commit murder, which Mr. Seward understood to be embraced in the charge on which he was delivered up; and in regard to this statement Lord Derby remarks that the British Government had no knowledge of this fact, if fact it was, until so informed by Secretary Fish in 1876. Id., p. 281.

We have, then, in this case, the following facts: 1. That the law officers of the Crown, being consulted, did express the opinion that if the United States put Burley on trial, bona fide, for the crime in respect to which he had been surrendered, it would be allowable to try him afterward for piracy, or any other crime of which he might be accused, whether within the treaty or not, and whether committed before or after his extradition. 2. That Lord Rus

and the United States had no knowledge of it until | United States were "substituted," under which he after the case was entirely disposed of. The most was tried, convicted and punished. that can be said is that such an opinion was held by one party to the treaty, but was not communicated to the other, or made the basis of any action as between the two parties. It never became a diplomatic fact; and this very materially changes its character, considered as an argumentum ad hominem addressed in 1876 to the British Government.

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6. The sixth case is that of Caldwell, examined in a previous article so far as the action of the United States is concerned, but not with reference to the action of the British Government. Caldwell was extradited from Canada to the United States on the charge of forgery, and was not tried for that offense at all, but was in 1871 tried and convicted on the charge of bribing an officer of the United States. Being apprised of the purpose of the Government to try him for the latter offense, he addressed a memorial to the Governor-General of the Dominion of Canada, asking his interposition to prevent a trial for any other than the extradition offense.

The opinion of the British Government that, having been bona fide tried for the extradition offense, the prisoner might thereafter be put on trial for "an additional offense," does not come up to the doctrine of Secretary Fish, who excluded this qualification altogether, and passes beyond the doctrine maintained by Lord Derby, who insisted that there could not, in consistency with the treaty, be any trial except for the offense for which the party was surrendered. It does not perfectly fit the doctrine of either. It contradicts that of Secretary Fish in part, and that of Lord Derby in part. The British Government in 1871 supposed that the United States were about to do, and only to do, what Lord Derby in 1876 claims as the only thing that was allowable; and yet it then expressed an opinion as to trial for an additional offense," which Lord Derby in 1876 held to be incorrect.

This memorial was transmitted to Her Majesty's Secretary of State for the Colonies. The Secretary, in his reply to the Governor-General, says that he has been in communication with Her Majesty's Secretary of State for Foreign Affairs in regard to the case, and that the opinion of the law officers of the Crown has been taken upon it. He further says that Her Majesty's Government are advised that there is no occasion for "claiming the surrender of the petitioner from the United States Government;" that, as it appears, "he has been duly indicted for the offense by reason of which he was surrendered, and it seems that he is to be tried for it;" and that "Her Majesty's Government are further advised that there is nothing in the convention which would preclude the indictment of the petitioner in the United States for an additional offense which is not enumerated in the convention, so long as such proceed- | ings were not substituted for proceedings against him on the charge, by reason of which he was surrendered." Foreign Relations of the United States, 1876, pp. 265-268.

No correspondence was opened by the British Government with the United States in regard to this case; and hence it here ended so far as the action of the former was concerned. The British Government, supposing that Caldwell had been "duly indicted for the offense by reason of which he was surrendered," and that he was about "to be tried for it," thought that he might be tried "for an additional offense" not enumerated in the treaty, 66 so long as such proceedings were not substituted for proceedings against him on the charge by reason of which he was surrendered.". The fact in the case is that Caldwell was not tried at all on the charge of forgery. That charge was abandoned, and " proceedings" on the charge of bribing an officer of the

The Lord Chancellor of England, in his speech in the House of Lords, disposes of this case by simply saying: "I think that the less said about the case of Caldwell the better." Id., p. 293.

Lord Derby, in his speech in the House of Lords, deals with the case and that of Burley more seriously. After saying, in regard to Caldwell, that "the decision not to interfere in the matter was communicated to the governor of Canada, and there the case ended so far as we are concerned," he proceeded to say:

"Now, I am not about to deny that these two cases show clearly enough that the view of our different from that which we have been advised to international duty taken by the then law-officers is adopt. But I deny altogether that that difference of views disposes of our case. I speak with the highest respect of the legal advisers of the governments of 1864 and 1870, but they would not claim that their opinion could bind their successors. And

I observe this, that though they do not advise that in certain cases a claim should be pressed, though they express doubt whether it ought to be pressed, yet in no part of this correspondence has the claim ever been abandoned. We have never said to the American Government that we thought it one which could not be justly advanced. We have simply forborne to press it in certain cases, and it is possible and conceivable that other motives may have operated besides those of a judicial or administrative character. I can quite understand that both in 1864 and 1870 reasons of a political character may have indisposed the then governments to press any demand on the United States as to which in their minds any doubt may have existed. I am not attacking what they did; but I contend that to waive a right on one occasion, or on two, is not to abandon it; that the opinions of the law-officers of our Government, however deserving of respect, are not international documents; and that, as between the United States and England, nothing has passed which amounts to an abandonment of the claim which we put forth in this correspondence." Id.,

p.

281.

Lord Derby here concedes-what is undoubtedly

the fact that the law-officers of the Crown and the British Government in 1864 and 1870 took a view which is different from that adopted by another set of law-officers and the British Government in 1876.❘ He is entirely correct in saying that nothing ever passed between that Government and the United States committing the former to the view expressed in 1864 and 1870. Secretary Fish, in order to find it, had to go outside of the records of his own office. Not a syllable of correspondence, containing the view, had ever passed between the two governments. The protest of the British Government as to the case of Burley was exactly in harmony with the theory maintained by Lord Derby in 1876; and as to the case of Caldwell there was no correspondence.

It is true, however, that the opinions of the lawofficers which were held in 1864 and 1870, but not communicated to the United States, were in 1876 rejected by the British Government; and Secretary Fish, in the Winslow correspondence, had whatever argumentative advantage could arise from this contrariety of opinions. This point he pressed. The fact itself admitted of no denial.

Lord Derby, and the Lord Chancellor of England, while treating the opinions of the former law-officers courteously, maintained that they were not correct; and, for the purpose of establishing this proposition, they appealed to the nature and design of extradition as set forth by European text writers, to the language used in the treaty of 1842, and to the legislation of both governments for its execution. It is a noticeable feature of the correspondence that Secretary Fish nowhere attempts any reply to this argument. As already remarked, his main efforts consisted in the citation of adverse British precedents, which he did not analyze with a view to ascertain their exact character. The precedents sought in the cases of Heilbronn, Von Aernam, Paxton, and Rosenbaum, the last three of which occurred in Canada, are not relevant, since they do not bear upon the direct point under discussion, which was not whether the prisoner could set up the treaty in his plea of defense, but whether the government surrendering him, could by the terms of the treaty claim that he should be tried only for the offense on which the surrender was grounded.

The precedents furnished by the cases of Burley and Caldwell, though they involve the action of the British Government, and contain the expression of an opinion different from that held in 1876, possess, as to that opinion, no international character whatever. The opinion was not communicated to the United States, and was not the basis of any action as between the two governments. The United States had no diplomatic right to that opinion, since it was never the subject of diplomacy at all. Though inconsistent with the position taken in 1876, it had never assumed such a form of expression as to make it a diplomatic fact. And, moreover, it was quali

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The vital question, however, was not whether all the public men of England had always held the same opinions on the subject of extradition, but whether the treaty of 1842 between the two governments did, in virtue of an implication resulting from its express stipulations, sustain the doctrine that a person extradited under it could be tried only for the offense charged against him in the proceedings and which was the basis of the surrender. The position of Secretary Fish, in respect to this question, renders meaningless the provisions, found in all the extradition treaties of the United States, that relate to the crimes for which extradition may be had, to the necessity of specifically charging some one or more of these crimes, and to the evidence which must be submitted to the delivering government in proof of the same. It is to be remembered that each government assumes, as its starting point in making an extradition treaty, that every person within its jurisdiction and not violating its laws, is entitled, as against all the world, to the prima facie right of undisturbed and protected asylum. Now, neither government agrees to a withdrawal of this right in respect to any accused party, and neither agrees to place that party in the custody of the other, except upon specified conditions distinctly stated in the treaty, and for a purpose as distinctly stated in the proceedings required by the treaty; and hence it is simply monstrous to assume that these conditions and this purpose are operative only for securing the surrender, and absolutely of no effect the moment the surrender has been actually obtained. And yet this was the position of Secretary Fish.

Extradition is certainly not a proceeding for its own sake, but simply a means to an end; and that end is to give the receiving government the opportunity to put the accused party on trial, and, if convicted, to punish him according to law. A trial for what? The treaty answers this question, in a general manner, by naming the offenses for which, and for which only, extradition may be obtained at all. It further answers the question, in a specific and definite manner, by requiring that some one or more of these offenses shall be charged by the demanding government, and then proved to the satisfaction of the government asked to make the delivery, as indispensable conditions of the right to claim the person of the alleged fugitive on the charge and for the purpose set forth. To ignore these limitations that lie in extradition as a means and that govern it as such, and regard them as of no consequence when the delivery has been made, is, upon the very face of the statement, a palpable

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