THE ALBANY LAW JOURNAL. 99 been equally divided upon the question. In Phillips v. Foxall, L. R., 7 Q. B. 666, it is said that in "a continuing guaranty for the honesty of a servant, if the master discovers that the servant has been guilty of dishonesty in the course of the service, and, instead of dismissing the servant, he chooses to continue him in his employ without the knowledge and consent of the surety, express or implied, he cannot afterward have recourse to the surety to make good any loss which may arise from his dishonesty during the subsequent service." See, also, Sanderson v. Aston, L. R., 8 Ex. 73; Burgess v. Eve, L.R., 13 Eq. 450. But see Postmaster-Gen. v. Reeder, 4 Wash. C. C. 678; Dox v. Postmaster-Gen., 1 Pet. tained against a ship where the owners were not V In United States v. Wright, 1 N. J. Law Jour. 4, recently decided by the United States District Court, New Jersey, it was held that the sureties of a defaulting postmaster were not discharged by an extension of time for paying over moneys due, granted to him by the special agent of the government without notice to the, nor were they discharged by the circumstance that he was continued in office after it was known that he was a defaulter. That mere forbearance on the part of the gans ment officers, in such a case, in the absence of fraud, will not discharge the sureties, is well established. See Locke v. United States, 3 Mass. 446; United States v. Kirkpatrick, 9 Wheat. 720; United States v. Van Zandt, 11 id. 184; United States v. Simpson, 13 Penn. St. 437. But the right of a surety to be informed of acts of dishonesty of his principal, and known to the employer, who is indemnified, seems to be well settled. A party taking a guaranty from a surety must not allow him to enter into the contract under false impressions. If he knows any thing in regard to the situation or character of the principal which increases the risk of the surety, and withholds his knowledge, it is a fraud which releases such surety. The reason is that the surety has the right to infer from the silence of the employer that he regards the principal as a trustworthy person. Smith v. Bank of Scotland, 1 Dow. 272; Railter v. Matthews, 10 Cl. & F. 934; Insurance Co. v. Lloyd, L. R., 10 Ex. 532. In the last case, however, the principle was qualified by holding that in cases of guaranty the concealment, in order to vitiate the contract, must be fraudulent. It it said, however, that while this is the doctrine in equity, it is an open question whether such a defense is available in a suit upon the bond. In Locke v. United States, 3 Mass. 453, Judge Story was inclined to doubt its validity as a legal defense, and the Supreme Court, in Etting v. Bank of United States, 11 Wheat. 59, seems to have In Moore v. Ulster Banking Co., 12 Ir. L. T. Rep. 2, decided by the Irish Court of Queen's Bench on the 10th of November last, the facts were these: Six weeks before his death one Moore indorsed a bank deposit receipt, which was not a negotiable instrument, and handed it to one McSweeny, saying it was for McSweeny's niece, who had performed certain services for Moore, and also saying that it was as little as the nicce could have for her services. On the day after Moore's death McSweeney took the receipt to the bank which issued it, and was paid the interest and a new receipt was given him in his own name, for the benefit of his niece. The administratrix Moore brought action against the bank for the amount secured by the receipt, and she was held entled to recover, the court saying that the indonment of the non-negotiable instrument did operate as a equitable assignment, nor did it amount to a-onatio mortis causa, being incomplete; and as it was without consideration, the court could not complete it. If the indorsement constituted McSweeny the agent of Moore, the agency was revoked by the death of the principal. The case of Edwards v. Jones, 1 My. and Cr. 226, is cited in support of the conclusion of the court. Here the obligee of a bond, five days before his death, signed a memorandum not under his seal, which was indorsed on the bond, and which purported to be an assignment of the bond without consideration to the person to whom the bond was delivered. This was held not a valid donatio causa mortis. See, also, Ellison v. Ellison, 1 White and Tud. L. Cas. Eq. 382; Richards v. Delbridge, L. R., 18 Eq. 11; Lloyd v. Pughe, L. R., 8 Ch. 88; Veal v. Veal, 27 Beav. 303. A more liberal rule seems to be adopted by the American courts. In Grymes v. Hone, 49 N. Y. 17; 10Am. R. 313, an assignment of bank stock was made in writing by the owner, a man eighty years of age, who handed the assignment to his wife with directions to give the same to his daughter, the assignee, in case of his death. Five months afterward he died. The court held this to be a valid gift causa mortis, and that the court could enforce it notwithstanding the stock had not been transferred on the books of the bank. The gift of a savings bank book with the intention of transferring the deposits mentioned therein by one in extremis has repeatedly been held to be a valid gift of the deposits. Camp's Appeal, 36 Conn. 88; 4 Am. R. 170; Tillinghast v. Wheaton, 8 R. I. 526; 5 Am. R. 621. See, also, Gardner v. Merritt, 32 Md. 78; 3 Am. R. 115. See, however, Curry v. Powers, 16 Alb. L. J. 117, where a gift of a pass book of a bank, with a check upon the funds deposited, payable four days after donor's death, was held by the Court of Appeals of this State not to be a valid gift. THE EXTRADITION REMEDY. BY SAMUEL T. SPEAR, D. D. BOUVIER, in his Law Dictionary, defines Extra commits some other crime after his extradition, be permitted to return to the jurisdiction from which he was removed. The design of this article is to ascertain whether this is the true construction of the extradition remedy. dition to mean "the surrender by one sovereign State to another, on its demand, of persons Mr. Wharton, in his Criminal Law, seventh edicharged with the commission of crime within its tion, vol. 3, p. 34, section 2956 a, says: "The sole jurisdiction, that they may be dealt with ac- object of extradition is to secure the presence of cording to its laws." This surrender is not simthe fugitive in the demanding state for the purpose ply expulsion, leaving the person free to go of trying him for a specified crime. The process is wherever else he chooses, but arrest and transfer- not to be used for the purpose of subjecting him ence to the government demanding him on the collaterally to criminal prosecutions other than that charge of crime. It, consequently, denies to the specified in the demand. Provisions guaranteeing accused the right of asylum, and, by a summary to the fugitive the right to leave the demanding process, removes him from the territory and protec- country after his trial for the offense for which he is tion of the laws of the surrendering government, and surrendered, in case of acquittal, or in case of conforcibly places him within the jurisdiction and ope-viction, after his endurance of punishment, are When not, they ration of the laws of the government to which he is remanded. It gives the latter possession of his person for the purpose of trial and punishment, and is, hence, an auxiliary process through which one government contributes to the administration of justice by another. The necessity for extradition grows out of the fact that, except in cases specially provided for by treaty, the penal laws of one country cannot operate within the jurisdiction of another. The sovereignty of a nation within its own territory is exclusive and absolute. See Schooner Exchange v. McFadden, 7 Cranch, 116. Governments, not choosing blindly to trust each other on this subject, require information as to the person to be delivered, as to the crime or crimes with which he is charged, and as to the evidence showing the commission of such crime or crimes. The demanding government must first make out a case; and whether it has done so or not, in any particular instance, the government upon which the demand is made will always judge for itself. The nature of the transaction, as between the two governments, naturally raises the question whether the jurisdiction acquired by extradition is general, and may be extended to the trial and punishment of any crime, or special, and must, therefore, be limited to the avowed purpose for which it was granted on the one hand and acquired on the other. The demanding government species a case: and if a surrender be made on the basis of the specification, then it is made with reference to that case, and not to some other supposable case. The mere statement of the facts as to demand and delivery would seem to imply, as a matter of good faith, that the proceeding necessarily qualifies the jurisdiction which it secures, and limits it to the purpose for which it was secured. Hence arises the doctrine that the party accused can be tried and punished only for the crime or crimes named in the demand and delivery, and that, when this end has been gained, he should, unless he elects to remain, or incorporated in many treaties. an offense for which extradition lies to be used to * Mr. David Dudley Field, in his International Code, has a chapter on extradition, the provisions of which, as he says, "are based mainly on those of existing treaties, particularly the numerous American treaties and the most recent French treaties." In section 237 he states the following rule: "No person surrendered * shall be prosecuted or punished in the nation to which he is surrendered, for any offense committed previous to that for which his surrender was demanded, nor for any offense which was not mentioned in the demand." This represents the law as derived from the provisions of "existing treaties,” and as Mr. Field thinks it ought to be. An article appeared in the American Law Review, vol. 10, p. 617, understood to have been written by Judge Lowell, of the United States District Court, in which the author says: "The question is a simple one; the answer, to an ordinary mind, seems equally so; and the writers on the general subject have expressed but one opinion upon it, so far a they have expressed any. It is, whether a person, surrendered by one government to another upon charge and proof of the commission of a certain crime, can lawfully, and against the objection of the surrendering government, be tried for a different crime committed before his surrender. That he cannot, seems at once the dictate of common sense and of ordinary justice; and so are the authorities. * * * * We hold it to be clear, on grounds of reason and authority, that a person surrendered by one sovereign to another, under a treaty of extradition, is to be tried for that crime, and that only, for which the surrender was asked and obtained." | grounds on which it is made. The State in which The article was prepared with reference to the controversy between the United States and Great Britain, then pending, in regard to the case of Winslow. he has taken refuge ought not to surrender him until those grounds have been made clear to it; in other words, it should ascertain whether the crime committed is of a character to justify his surrender. In truth, the criminal by his flight to another State becomes (although but for a time) the subject of the supreme power of that State, and immediately enjoys the protection and guardianship of that State. From that guardianship he cannot be forcibly taken except under a special agreement, the terms of which, we presume, certainly do not extend further than to those very grounds on which the surrender was demanded and granted. * * Mr. William Beach Lawrence, in an article published in the Albany Law Journal, vol. 14, p. 96, writes as follows: "All the right which a power asking an extradition can possibly derive from the surrender must be what is expressed in the treaty, and all rules of interpretation require the treaty to be strictly construed; and, consequently, when the treaty prescribes the offenses for which extradition can be made and the particular testimony to be required, the sufficiency of which must be certified to the executive authority of the extraditing country, the State receiving the fugitive has no jurisdic-ent grounds." Kluit's idea is that an extension of tion whatever over him, except for the specified crime to which the testimony applies." Mr. Lawrence supports this general position by referring to Billot, MM. Faustin-Hélié, Legraverend, Trébutien, Bertauld, Le Sellyer, Morin, Foelix et Demangeat, Brouchoud, Ducrocq, Duverdy, Bonafos, Morel, Dalloz, and Mangin. Mr. Frederick W. Gibbs published a pamphlet on Extradition Treaties, in London in 1868, in which he says that political offenses are not grounds of extradition, and then adds: "In close connection with the foregoing principle, and designed undoubtedly to support it, follows another, to which our attention has been much directed, but which is treated by foreign writers as well established, that a person surrendered is liable only for the offense on account of which his extradition was obtained." This doctrine he sustained by citing several authorities. The Lord Chancellor of England, in his speech on the Winslow case in the House of Lords, published in The Foreign Relations of the United States for 1876, pp. 286-296, presents an array of European authorities to show "that, apart altogether from the wording of treaties, there is a silent and implied condition in extradition that the crime for which the surrender of a man is asked must be specified, and that it is for that crime alone that he must be ried." One of these authorities is Foelix, who, in his treatise on Private International Law, devotes an entire chapter to the subject of extradition, and, among others, lays down the following general rule in regard to it: "The person who is surrendered cannot be prosecuted or condemned except for the crime in respect to which his extradition has been obtained." A second authority is Kluit, an eminent jurist of Holland, who, in answer to the question whether it is "lawful to punish the fugitive for any other crime than that for which he has been surrendered," says: "The request for the surrender of a criminal is generally accompanied by a statement of the The surrendering State gave up the criminal on consideration of the grounds stated, not of any differ the jurisdiction beyond the grounds stated would be a violation of the faith involved in the transaction, A third authority is Heffter, the German writer, who says: "The individual whose extradition has been granted cannot be prosecuted nor tried for any crime except that for which the extradition has been obtained. To act in any other way, and to cause him to be tried for other crimes or misdemeanors, would be to violate the mutual principle of asylum and the silent clause contained by implication in every extradition." The circular of the French Minister of Justice, issued April 15th, 1841, is also quoted. In this circular the Minister says: "The extradition declares the offense which leads to it, and this offense alone ought to be inquired into. So that if during the prosecution for the crime which has led to the extradition there should arise the evidence of a new crime, a new demand of extradition ought to be made." The case of Dermenon, as reported in Dalloz's Jurisprudence, is mentioned by the Lord Chancellor. Dermenon had been surrendered by the Canton of Geneva to France on the charge of fraudulent bankruptcy. On that charge he was acquitted, but there was another charge against him for which he had not been surrendered. The question arose whether he should be tried on this other charge, or sent back to the Canton of Geneva. The answer given by the Minister of the Interior was as follows: "It is only as accused of the crime of fraudulent bankruptcy that Dermenon has been delivered up to France by the Canton of Geneva. He is now purged of that charge by the decree of acquittal. Dermenon is therefore in the same position as if only a misdemeanor had been laid to his charge. It is clear that in that case his extradition could not have been obtained. It follows that we cannot take advantage of his having been given up to the French authorities upon a different ground to try him for acts which have not and could never have been the grounds of his extradition. The Minister of Justice has consequently directed the procureur-général to place Dermenon at your disposal, and I hasten, for my part, to request you to have him immediately conducted to the frontier, where he should be placed once more in the hands of the Genevese authorities." A second element in the treaty is the enumeration of seven specific crimes as the only ones in respect to which either party shall have the right of demand, or be subject to the obligation of delivery. Both parties restrict themselves to this list of crimes; and this by necessary implication excludes the remedy from all other crimes preced Turning from these authorities, we come now to consider a much higher authority, and this we finding the extradition, as effectually as if such exclu in the extradition treaties of the United States. All these treaties specify certain crimes which, with proper proceedings, may be the ground of extradition. In none of them is it expressly said that the crime charged in the demand, and which was the basis of the delivery, is the only crime for which the surrendered person may be tried under the jurisdiction thus acquired. Is this principle, though not formally stated, necessarily implied in the express provisions of these treaties? We take, for the purpose of answering this question, the tenth article of the treaty of 1842 with Great Britain, the construction of which was the matter of controversy in the Winslow case, remarking that, as to the points in this stipulation to which we shall refer, it is an example of every extradition treaty of the United States, without a solitary exception. The argument will, therefore, apply to the whole. This treaty, in the first place, contains the general stipulation that the two governments will, "upon mutual requisitions" made in a certain way, "deliver up to justice " a specified class of persons, indicated by the crimes laid to their charge, by the locus delicti or place where these crimes were committed, and by the place where they have sought asylum and are found. The "justice" here referred to relates to the offenses specified as extradition crimes. It is not the general justice of either country, but justice in relation to these crimes, and embraces only so much of the penal code as refers to them. It is hence limited as to the persons to whom and the offenses to which it applies. Judge Benedict, in The United States v. Lawrence, 13 Blatchf. C. C. R. 295, said that the delivering up to justice, as provided for in the treaty, is "a significant and comprehensive expression, plainly importing that the delivery is for the purposes of public justice, without qualification." This idea, with all due respect to the learned judge, is inconsistent with the specification of particular crimes for which the delivery is to be made. Why upon this theory specify at all? Why not, according to the view advocated by Mr. Westlake, dismiss all enumeration of offenses, and deliver up for any crime, except that of treason or sedition? Such a treaty would be in harmony with the doctrine of Judge Benedict; but it so happens that the extradition treaties of the United States are not constructed on this principle. sion had been stated in express words. The treaty is the only ground of the remedy in respect to any crime; and hence the remedy cannot go beyond the offenses enumerated, without exceeding and in this sense violating the express provision of the treaty. To assume that extradition may be demanded for any one or more of the crimes named, and that the person, being surrendered, may then be tried and punished for any other crime at the pleasure of the demanding government, is to render alike meaningless and useless the specific enumeration of crimes. This manifestly is not consistent with the fact of enumeration, and in practical effect changes the treaty itself. Extradition is a means to promote the administration of justice in respect to a certain class of particularly designated crimes; and, in omitting all other classes, the parties virtually stipulate that the remedy shall operate only within the limits of the crimes enumerated. To carry the jurisdiction beyond these limits is to make the treaty serve an end for which it contains no provision, and which, moreover, the contracting governments disclaim by the most obvious implication. The enumeration is the boundary which they have chosen to fix, and they cannot, after jurisdiction has been acquired, exceed this boundary in the application of the remedy, without violating their own agreement. A third element in the treaty is the fact that the person, claimed by the demanding government, must be "charged" with having committed within its jurisdiction some one or more of the crimes enumerated. The delivering government is entitled to know what the offense is for which the surrender is demanded. In no other way can it determine whether it comes within the treaty or not. No offense outside of the treaty is a ground of extradition; and no offense within the treaty is such a ground until it has been distinctly stated to the government asked to make the delivery. The statement of the particular offense, as the ground of the right claimed, limits the demanding government to that offense, since, if a delivery be made, it is made for that offense and for no other. It was for the crime charged" that the surrendering government withdrew from the accused the right of asylum within its own territory, and the receiving government cannot extend its penal jurisdiction to some other crime, whether within the extradition list or not, without going beyond the terms of its own demand 66 when made, and beyond those of the surrender when made. The necessity of making a specific charge as the basis of demand under the treaty, and the surrender of the alleged fugitive upon that basis, constitute a just and proper limitation of the jurisdiction to the purpose for which it was asked on one hand, and granted on the other. A fourth element in the treaty provides that the "criminality" charged in the demand shall be sustained by such evidence "as, according to the laws of the place where the fugitive or prisoner so charged shall be found, would justify his apprehension and commitment for trial, if the offense had there been committed." This is a most important provision in relation to the point under consideration. The "criminality" referred to is a particular criminality, and the express words of the stipulation require that the proof of its existence shall show a prima facie case of guilt, according to the laws of the country asked to make the delivery. The delivering government, under this rule, decides for itself upon this question of fact. To change the case after jurisdiction has been acquired and put the party on trial for a different crime, upon evidence entirely different in its relations and in what it proves, and in respect to which the surrendering government has never judged whether it did or did not make out a prima facie case, is manifestly to violate the rule in regard to evidence, which is an express part of the stipulation. Suppose the crime charged to be murder, that the accused was surrendered upon evidence relating to murder, that being tried on this charge, he was acquitted, and that he was then tried and convicted on the charge of forgery. The evidence upon which he was delivered referred to murder, and on this the delivering government passed judgment; but the evidence upon which he was convicted referred to forgery, and on this the delivering government passed no judgment. And yet the right of such preliminary judgment, as to the question whether the criminality charged is shown by sufficient evidence, is one of the express provisions of the treaty. Can that right be violated without violating the treaty? Crimes so differ in the acts which constitute them that they are not all provable by the same evidence. The felonious killing of a human being is in its acts essentially different from the crime of forgery, and hence the evidence that may be sufficient to prove the one is not at all relevant as proof of the other. If the crime charged, and for which a delivery is demanded, be forgery, then the evidence, whether consisting in "depositions, warrants, or other papers," or in the oral testimony of witnesses, or in both, must show the necessary facts in respect to forgery, and, this being done, the government asked to make the delivery is bound by express stipulation to withdraw from the accused the right of asylum, and The sur hand him over to the jurisdiction of the demanding government, for the purpose specified, and on the basis of the facts shown by the evidence. render, if made, is made for that purpose, and for no other, and upon the evidence offered and considered sufficient to make out a prima facie case of forgery, and upon no other evidence. Now, unless we adopt the absurd proposition that the same evidence is equally pertinent to prove a case of murder, or some other crime, in its facts essentially different from forgery, then the jurisdiction acquired by the delivery is, by the very terms of the rule in respect to evidence, limited to the crime for which the delivery was made. If not so limited by the receiving government, then one of the fundamental stipulations of the treaty is completely ignored and rendered a nullity. The surrendering government, in every such case, would have no opportunity to pass judgment upon the evidence with reference to the question of its duty to make a surrender. It would, as to the purpose for which it did make the surrender, be cheated by what would be equivalent to an act of bad faith; and whether the cheat was deliberately planned or was simply an after-thought, would make no difference in the fact itself. The manifest intention of these stipulations is to maintain the right of asylum and exclude the extradition remedy in respect to all cases not enumerated. In no other way can this end be gained. If governments, upon receiving from each other fugitives from justice, may in their discretion exceed the limit thus established when they come to deal with these fugitives, then they may exceed it to any extent. The provision that there shall be no extradition for political offenses becomes a nullity if the demanding government, having obtained the custody of the fugitive, chooses to treat it as such. All the barriers against a perversion and abuse of the remedy are swept away. The specification of extradition crimes, the charge of a particular crime as the ground of the demand, and the rule of evidence in regard to that crime, impose no restraint whatever upon the jurisdiction when once acquired. No nation, having any respect for itself, especially one that, like the United States, recognizes the prima facie right of unmolested asylum in respect to all persons coming under its jurisdiction, and committing no offense against its laws, would, with this construction, consent to make an extradition treaty with any other nation. Let this construction prevail, and that, so far at least as the United States are concerned, would speedily be the end of all such treaties. The conclusion that we derive from this examination of the treaties themselves is, that their express provisions necessarily imply a limitation of the extradition remedy, in its judicial and penal action, to the specific crime or crimes for which it was invoked, and in respect to which the delivering gov |