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carriages kept for a long time. Bennett never paid was discovered after the conveyance. But in Cann plaintiff the price of the horses and carriages, and Cann, 3 Sim. 447, the vendor was held liable absconded from defendant's inn without paying his where a misstatement as to the annual value of the bill, and leaving the horses and carriages there. property was discovered after conveyance. In Hart Subsequently, having been taken into custody on a v. Swaine, 37 L. T. Rep. (N. S.) 376, property was charge of swindling, he re-assigned the horses and sold as freehold, which after the conveyance the carriages to plaintiff, to whom, however, defendant purchaser discovered to be copyhold, and it was refused to give them up until Bennett's bill was held that, assuming the vendor to have made the paid. Defendant afterward sold the horses by pub- misrepresentation bona fide, it amounted to a legal lic auction, and still retained the carriages. The fraud, and the sale was set aside. But see, as suscourt held, first, that defendant's lien upon the horses taining the principal case, Early v. Garrett, where a and carriages was a general one for the whole of purchaser took the estate with all defects in title, Bennett's bill, and that plaintiff, not having tendered and the vendor stated that no rent had ever been the amount of it to defendant, was not entitled to paid, which turned out to be false, and the title was maintain his action to recover possession of the merely under a lease, and it was held that the purcarriages or damages for their detention, and chaser could not recover his purchase-money. second, that the sale by defendant of the horses was Thomas v. Powell, 2 Cox's C. C. 394; Legge v. Croker, a wrongful conversion, for which plaintiff could 1 Ball & Beav. 506. In the latter case, after the commaintain his action, and that the measure of dam- pletion of the purchase, a right of way was discovages was the value of the horses. The decision as ered to exist, and the purchaser claimed compensato the lien of an innkeeper, extending to all the tion. It was held that no relief could be given, property brought to the inn by the guest for all his because the purchaser ought to have satisfied himself expenses, is in accordance with the view taken by

about the right of way before accepting the convey

See, also, Caballero v. Henty, 30 L. T. Rep. Story (Story on Bailm., $ 476), who says that the (N. S.) 314; Parham v. Randolph, 4 How. (Miss.) 435; cases do not support the doctrine advanced by some Denston v. Morris, 2 Edw. Ch. 37; Abbott v. Allen, that a horse can be detained only for his own meals. 2 Johns. Ch. 523; Chesterman v. Gardner, 5 id. 29. See Thompson v. Lacy, 3 B. & A. 383; Sunbolf v.

The Court of Appeals of Kentucky, in the case of Alford, 3 M. & W. 248; Proctor v. Nicholson, 7 C. & Greer v. Church et al., decided on the 23d of NoP. 67; Jones v. Thurloe, 8 Mod. 172. The innkeeper vember, 1877, passes upon the effect of a contract cannot sell the property of his guest, but only de purporting to be for the renting of a piano. The

contract, which was in writing and signed by both tain it, and a sale is a conversion. Jones v. Peasle,

parties thereto, set forth that Church & Co. had 1 Stra. 557; Luckbarrow v. Mason, 6 East, 21, note; rented to one Mrs. Martin a piano valued at $550, Walter v. Smith, 5 B. & A. 439; Cortelyou v. Lan- and that she agreed to pay as rent for the same $400 sing, 2 Ca. Cas. 200.

for the first month; $10 per month for six months

thereafter, and $20 per month afterward. Mrs. In the case of Manson v. Thacker, ex parte Cro-Martin was entitled to become the purchaser of the shaw, 38 L. T. Rep. (N. 8.) 209, decided by Vice- piano at $550, and the sums received for rent for

the first eleven months were to be allowed toward Chancellor Malins on the 7th of February last, the purchase-price. It was in evidence that Mrs. Croshaw had purchased freehold premises described Martin purchased the piano, paid on the contract as suitable for a building site, paid his purchase-$410 and took possession of the piano, which she money, and took a conveyance.

subsequently sold to appellant Greer. Church & Co. Several months

then replevied it. The court below instructed the afterward he discovered that a culvert ran under- jury, at the trial of the replevin action, that if the neath the property, to the use of which other per- rent paid by Mrs. Martin on the piano did not sons were entitled, and he claimed compensation in

amount to $550, the plaintiff should recover. The respect thereof. The particulars of sale did not holding that the transaction was a purchase and not

Court of Appeals reversed a judgment for plaintiff, mention the existence of the culvert, but no fraud a lease, and that no matter whether the parties inwas imputed to the vendors. The conditions of sale tended the title to pass or not the law would, in provided that any error or misstatement in the par-treat the title as being where the nature of the

furtherance of public policy and to prevent fraud, ticulars should not annul the sale, but that a com

transaction required it to be. See, as sustaining a pensation should be paid to or by the purchaser. similar doctrine, Domestic Sewing Machine Co. v. The existence of the culvert might have been Anderson, 15 Alb. L. J. 64, where the Supreme Court discovered by the purchaser before completion if of Minnesota held in the case of a sewing machine he had carefully inspected the property.

which was alleged to be leased and a written conThe

tract of leasing produced, that parol evidence was court held that, having completed his purchase, admissible to establish a contract of sale, antecethe purchaser could not enforce compensation dent to the lease, and that the lease was in consein respect of the culvert. The court disapproved quence void for want of consideration. See, also, and refused to follow the case of Bos v. Hils- dus, 16 Alb. L. J. 442, where a similar agreement, in

note of case upon Victor Sewing Mach. Co. v. Harham, L. R., 2 Ex. 72, where a purchaser was allowed respect to a sewing machine, was treated as invalid compensation for misrepresentation where the error upon other grounds.

“It was suggested that the American GovernBRITISH EXTRADITION PRECEDENTS.

ment 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 Cana-

dian authorities, with assault with intent to commit

murder. The question was referred to the law offi5. The fifth case is that of Burley who, in 1864,

cers in this country, and it was held that, if the was demanded from Canada by the United States, United States put him bona fide on his trial for the on the charge of having committed robbery on offense in respect to which he was given up, it board the steamer “ Philo Parsons on Lake Erie.

would be difficult to question their right to put him He claimed in Canada that he acted as an officer in

upon his trial also for piracy, or any other offense

which he might be accused of committing within the service of the Confederate States, then at war their territory, whether or not such offense was a with the United States, and, hence, that he was pro- ground of extradition or even within the treaty." tected against the charge by the right of belliger- Answer, 1032. ency; and yet he was surrendered by the Canadian fide tried for the offense for which he was given up,

“We admit in this country that if a man is bona authorities. Mr. Clarke, in his work on Extradition,

there is nothing to prevent his being subsequently sec. ed., p. 90, says that when he was brought to tried for another offense, either antecedently comtrial in the State of Ohio, “the judge ruled that if mitted or not.” Answer, 1036. See Clarke on Exthe acts complained of had a belligerent object, and tradition, sec. ed., note, pp. 90, 91. were done under the authority of a Confederate Secretary Fish refers to this opinion of the then commission, the animus furandi was wanting, and law officers of the British Government, as sustaining he must be held not guilty. The jury disagreed, his view, and inconsistent with that of Lord Derby. and the prisoner, being released on moderate bail, He hence uses the opinion as an argument of the did not reappear.” That was. consequently, the end ad hominem character. reign Relations of the of the case, so far as the prisoner was concerned. United States, 1876, p. 214.

Judge Fitch, who tried this case, told the jury What then did the British Government do with that "the theft must be found to have been made this opinion, and especially what did it say to the with felonious intent,” and that the prisoner “had Government of the United States? Lord Russell, in a right, if commissioned, to take the boat, money, a dispatch dated February 25th, 1865, to Mr. Burnor other property, for the futherance of his Gov- ley, Her Majesty's representative at Washington, ernment.” He also said that “a state of war existed after referring to the application made in behalf of between the Federal Government and the Confeder- Burley, proceeded to say: ate Government, so called, and it made no difference “I have to state to you that, having considered whether the United States Government admitted it this application in communication with the proper or not."


law officers of the Crown, Her Majesty's Governstate of war.” He consequently held that, “as a

ernment, having obtained the extradition on the soldier of the Confederate States Government, he charge of robbery, do not put him on his trial upon [Burley) had a soldier's right to capture the steamer this charge, but upon another, namely, piracy and appropriate her, and any money belonging to (which, if it had been made before the Canadian her, to the cause of his Government." Foreign

authorities, they might have held not sufficiently es

tablished to warrant his extradition), this would be Relations of the United States, 1876, p. 264. The

a breach of good faith against which Her Majesty's language of Judge Fitch implies that robbery was Government might justly remonstrate. If, however, the offense for which Burley was tried; and his

the United States Government does bona fide put doctrine is that, if the prisoner acted as a soldier of Burley on his trial for the offense in respect to

which he was given up, it seems to Her Majesty's the Confederate Government, the “State of war" Government that it would be difficult to question the secured to him immunity against conviction on this right of that Government to put him upon his trial charge.

for piracy also, or any other offense which he may The importance of this case grows out of the fact

be accused of having committed within their terri

tory, whether such offense was or was not a ground that, under the apprehension that Burley was about of extradition, or even within the treaty. Accordto be tried for piracy, the attention of the British ingly Her Majesty's Government can only so far comGovernment was called to it, and that the question ply with the application of Mr. Burley, senior, as whether this would be consistent with the treaty of

to instruct you to protest against any attempt to

change the ground of accusation upon which Burley 1842 was submitted to the then law-officers of the

was surrendered in pursuance of the treaty." ForCrown. The evidence taken in 1868 by the select eign Relations of the United States, 1876, pp. 261, committee of the House of Commons on Extradition, 262. 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 Seclor Foreign Affairs :

retary Seward :

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p. 281.

"Her Majesty's Government, having considered as he understood it, upon the charge of piracy, as this application, are of opinion that if the

well as upon that of robbery and an assault with inUnited States Government, having obtained the extradition on the charge of robbery, do not put him

tent to commit murder, might be tried for the piracy. on his trial upon this charge, but upon another,

The question, however, was a mere “abstraction,” namely, piracy (which, if it had been made before since the Government did not propose to try him on the Canadian authorities, they might have held not the piratical charge. sufficiently established to warrant extradition), this would be a breach of good faith against which Her

There was evidently some confusion of underMajesty's Government might justly remonstrate.

standing between the two governments as to the Her Majesty's Government are, therefore, willing, charge on which Burley was extradited; yet, so far should the grounds upon which Burley is to be as Mr. Seward was officially informed, the attitude tried take the above turn, to comply so far with the

of the British Government was simply that of a proapplication of Mr. Burley, Sr., as to instruct me to protest against any attempt to change the ground

test against his trial for piracy, on the ground that of accusation upon which Burley was surrendered this was not the offense for which the prisoner had in pursuance of the treaty.” Id., p. 292.

been surrendered. Secretary Fish, in the Winslow This letter, addressed to Secretary Seward on the correspondence, says that Burley was tried for as15th of March, 1865, was a formal protest against sault with intent to commit murder, which Mr. putting Burley on trial for piracy when his extradi- Seward understood to be embraced in the charge on tion had been obtained on the charge of robbery, which he was delivered up; and in regard to this and against any attempt to change the ground of statement Lord Derby remarks that the British Govaccusation upon which he was surrendered. It did ernment had no knowledge of this fact, if fact it not communicate to Mr. Seward that part of the was, until so informed by Secretary Fish in 1876. dispatch of Lord Russell, in which his Lordship Id., adopts the opinion of the law officers of the Crown. We have, then, in this case, the following facts: That opinion sustains the doctrine of Secretary 1. That the law officers of the Crown, being conFish, with the qualification that the extradited per- sulted, did express the opinion that if the United son must first have a bona fide trial upon the charge States put Burley on trial, bona fide, for the crime in in respect to which he was given up. Lord Rus- respect to which he had been surrendered, it would sell adopted it, and communicated it to Her Majes- be allowable to try him afterward for piracy, or any ty's representative at Washington; but the latter other crime of which he might be accused, whether did not communicate it to the Government of the within the treaty or not, and whether committed United States.

before or after his extradition. 2. That Lord RusMr. 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 “Sir, I recur to your note of the 15th of March,

to put Burley on trial for piracy when he had been which relates to B. G. Burley. The Honorable the

delivered up simply on the charge of robbery, qualAttorney-General informs me that it is his purpose ified the expression by adopting and stating the to bring the offender to trial in the courts of the opinion of the law officers of the Crown, and then States of Ohio and Michigan, for the crimes com

directed Mr. Burnley “to protest against any atmitted by him against the municipal laws of those States, namely: robbery and assault with intent to tempt to change the ground of accusation upon commit murder. He was delivered up by the Ca- which Burley was surrendered in pursuance of the nadian authorities upon a requisition which was treaty.” 3. That Mr. Burnley, in his letter to Mr. based upon charges of those crimes, and also upon Seward, made the protest as directed, but said noà charge of piracy, which is triable not by State courts, but by the courts of the United States. I thing about the opinion of the law officers of the am not prepared to admit the principle claimed in Crown, or its adoption by Lord Russell. 4. That the protest of Her Majesty's Government, that the of- Mr. Seward, not informed of this opinion, regarded fender could not legally be tried for the crime of the letter as a protest against trying Burley for piracy under the circumstances of the case. Nevertheless, the question raised upon it has become an piracy, when, as the British Government understood abstraction, as it is at present the purpose of the and officially stated the case, he had been surrendered Government to bring him to trial for the crimes simply on the charge of robbery. against municipal law only." Id., p. 280.

All, then, that there is in this case, considered as The answer of Mr. Seward shows that he regarded a question of actual diplomacy between the two govthe letter of Mr. Burnley as a protest against putting ernments, is exactly in harmony with the general Burley on trial for piracy, when, as the case was doctrine maintained by Lord Derby in 1876. What stated to him by the representative of the British is not in harmony with that doctrine is the opinion Government, he had been delivered up simply on of the law officers of the Crown, adopted by Lord the charge of robbery. He says that he was not Russell, but not communicated to the Government prepared to admit the principle set forth in the pro- of the United States. It was not the subject of test, but held that Burley, having been surrendered, any correspondence between the two governments;

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 The opinion of the British Government that, havone party to the treaty, but was not communicated ing been bona fide tried for the extradition offense, to the other, or made the basis of any action as be- the prisoner might thereafter be put on trial for tween the two parties. It never became a diplo- "an additional offense,” does not come up to the matic fact; and this very materially changes its doctrine of Secretary Fish, who excluded this qualcharacter, considered as an argumentum ad hominem ification altogether, and passes beyond the doctrine addressed in 1876 to the British Government. maintained by Lord Derby, who insisted that there

6. The sixth case is that of Caldwell, examined could not, in consistency with the treaty, be any in a previous article so far as the action of the trial except for the offense for which the party was United States is concerned, but not with reference surrendered. It does not perfectly fit the doctrine to the action of the British Government. Caldwell of either. It contradicts that of Secretary Fish in was extradited from Canada to the United States on part, and that of Lord Derby in part. The British the charge of forgery, and was not tried for that of Government in 1871 supposed that the United States fense at all, but was in 1871 tried and convicted on were about to do, and only to do, what Lord Derby the charge of bribing an officer of the United States. in 1876 claims as the only thing that was allowable; Being apprised of the purpose of the Government and yet it then expressed an opinion as to trial for to try him for the latter offense, he addressed a me- an additional offense,” which Lord Derby in 1876 morial to the Governor-General of the Dominion of held to be incorrect. Canada, asking his interposition to prevent a trial The Lord Chancellor of England, in his speech in for any other than the extradition offense.

the House of Lords, disposes of this case by simply This memorial was transmitted to Her Majesty's saying: “I think that the less said about the case of Secretary of State for the Colonies. The Secretary, Caldwell the better.” Id., p. 293. in his reply to the Governor-General, says that he Lord Derby, in his speech in the House of Lords, has been in communication with Her Majesty's Sec- deals with the case and that of Burley more seriousretary of State for Foreign Affairs in regard to the ly. After saying, in regard to Caldwell, that “the case, and that the opinion of the law officers of the decision not to interfere in the matter was commuCrown has been taken upon it. He further says nicated to the governor of Canada, and there the that Her Majesty's Government are advised that case ended so far as we are concerned,” he prothere is no occasion for “ claiming the surrender of ceeded to say: the petitioner from the United States Government;" “Now, I am not about to deny that these two that, as it appears, "he has been duly indicted for cases show clearly enough that the view of our the offense by reason of which he was surrendered,

international duty taken by the then law-officers is

different from that which we have been advised to and it seems that he is to be tried for it;" and that adopt. But I deny altogether that that difference “Her Majesty's Government are further advised that of views disposes of our case. I speak with the there is nothing in the convention which would pre- highest respect of the legal advisers of the governclude the indictment of the petitioner in the United ments of 1864 and 1870, but they would not claim

that their opinion could bind their successors. And States for an additional offense which is not enu

I observe this, that though they do not advise that merated in the convention, so long as such proceed in certain cases a claim should be pressed, though ings were not substituted for proceedings against they express doubt whether it ought to be pressed, him on the charge, by reason of which he was sur

yet in no part of this correspondence has the claim

ever been abandoned. We have never said to the rendered.” Foreign Relations of the United States,

American Government that we thought it one which 1876, pp. 265-268.

could not be justly advanced. We have simply forNo correspondence was opened by the British borne to press it in certain cases, and it is possible Government with the United States in regard to this and conceivable that other motives may have operated case; and hence it here ended so far as the action

besides those of a judicial or administrative char

acter. I can quite understand that both in 1864 of the former was concerned. The British Govern- and 1870 reasons of a political character may have ment, supposing that Caldwell had been “duly in- indisposed the then governments to press any dedicted for the offense by reason of which he was

mand on the United States as to which in their surrendered,” and that he was about “ to be tried tacking what they did; but I contend that to waive

minds any doubt may have existed. I am not atfor it,” thought that he might be tried “for an a right on one occasion, or on two, is not to abanadditional offense” not enumerated in the treaty, don it; that the opinions of the law-officers of our

so long as such proceedings were not substituted Government, however deserving of respect, are not for proceedings against him on the charge by reason

international documents; and that, as between the

United States and England, nothing has passed of which he was surrendered.”. The fact in the case which amounts to an abandonment of the claim is that Caldwell was not tried at all on the charge which we put forth in this correspondence.” Id., of forgery. That charge was abandoned, and “pro- p. 281. ceedings" on the charge of bribing an officer of the Lord Derby here concedes — what is undoubtedly the fact that the law-officers of the Crown and the fied by the condition that the surrendered person British Government in 1864 and 1870 took a view must first have a bona fide trial for the crime in rewhich is different from that adopted by another set spect to which he was delivered up, before he could of law-officers and the British Government in 1876. be put on trial for any "additional offense;" and He is entirely correct in saying that nothing ever this condition was excluded by the doctrine of Secpassed between that Government and the United retary Fish. States committing the former to the view expressed The vital question, however, was not whether all in 1864 and 1870. Secretary Fish, in order to find the public men of England had always held the same it, had to go outside of the records of his own office. opinions on the subject of extradition, but whether Not a syllable of correspondence, containing the the treaty of 1842 between the two governments did, view, had ever passed between the two governments. in virtue of an implication resulting from its express The protest of the British Government as to the case stipulations, sustain the doctrine that a person exof Burley was exactly in harmony with the theory tradited under it could be tried only for the offense maintained by Lord Derby in 1876; and as to the charged against him in the proceedings and which case of Caldwell there was no correspondence. was the basis of the surrender. The position of

It is true, however, that the opinions of the law- Secretary Fish, in respect to this question, renders officers which were held in 1864 and 1870, but not meaningless the provisions, found in all the extracommunicated to the United States, were in 1876 dition treaties of the United States, that relate to rejected by the British Government; and Secretary the crimes for which extradition may be had, to the Fish, in the Winslow correspondence, had whatever necessity of specifically charging some one or more argumentative advantage could arise from this con- of these crimes, and to the evidence which must be trariety of opinions. This point he pressed. The submitted to the delivering government in proof of fact itself admitted of no denial."

the same.

It is to be remembered that each governLord Derby, and the Lord Chancellor of England, ment assumes, as its starting point in making an exwhile treating the opinions of the former law-officers tradition treaty, that every person within its juriscourteously, maintained that they were not correct; diction and not violating its laws, is entitled, as and, for the purpose of establishing this proposition, against all the world, to the prima facie right of unthey appealed to the nature and design of extradition disturbed and protected asylum. Now, neither as set forth by European text writers, to the lan-government agrees to a withdrawal of this right in guage used in the treaty of 1842, and to the legisla- respect to any accused party, and neither agrees to tion of both governments for its execution. It is a place that party in the custody of the other, except noticeable feature of the correspondence that Secre- upon specified conditions distinctly stated in the tary Fish nowhere attempts any reply to this argu-treaty, and for a purpose as distinctly stated in the ment. As already remarked, his main efforts con- proceedings required by the treaty; and hence it is sisted in the citation of adverse British precedents, simply monstrous to assume that these conditions which he did not analyze with a view to ascertain and this purpose are operative only for securing the their exact character. The precedents sought in surrender, and absolutely of no effect the moment the cases of Heilbronn, Von Aernam, Paxton, and the surrender has been actually obtained. And yet Rosenbaum, the last three of which occurred in tliis was the position of Secretary Fish. Canada, are not relevant, since they do not bear Extradition is certainly not a proceeding for its upon the direct point under discussion, which was own sake, but simply a means to an end; and that not whether the prisoner could set up the treaty in

end is to give the receiving government the opporbis plea of defense, but whether the government tunity to put the accused party on trial, and, if consurrendering him, could by the terms of the treaty victed, to punish him according to law. A trial claim that he should be tried only for the offense on for what? The treaty answers this question, in a which the surrender was grounded.

general manner, by naming the offenses for which, The precedents furnished by the cases of Burley and for which only, extradition may be obtained at and Caldwell, though they involve the action of the all. It further answers the question, in a specific British Government, and contain the expression of and definite manner, by requiring that some one or an opinion different from that held in 1876, possess, more of these offenses shall be charged by the deas to that opinion, no international character what- manding government, and then proved to the satis

The opinion was not communicated to the faction of the government asked to make the deUnited States, and was not the basis of any action | livery, as indispensable conditions of the right to as between the two governments. The United States claim the person of the alleged fugitive on the had no diplomatic right to that opinion, since it charge and for the purpose set forth. To ignore was never the subject of diplomacy at all. Though these limitations that lie in extradition as a means inconsistent with the position taken in 1876, it had and that govern it as such, and regard them as of never assumed such a form of expression as to make no consequence when the delivery has been made, it a diplomatic fact. And, moreover, it was quali- 'is, upon the very face of the statement, a palpable


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