DETENTION OF EXTRADITED PRISONER UNDER CIVIL PROCESS.

ENGLISH COURT OF APPEAL, JULY 23, 1880.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

JAMES, L. J. The more important question in this case, the public question apart from the importance to the individual concerned, is the construction of the Extradition Act of 1870, the 19th section of which, the learned judge before whom this matter came first of all (Bacon, V. C.) is reported to have said, was confined to political offenses-to prevent men being tried for political offenses. I think that what the vice-chancellor said was not correctly taken down, as it is quite clear that the section does not say that. No doubt the act had reference to political offenses, and was intended to prevent a man from being brought into a country on what we should call an ordinary common-law offense, and then tried for some political offense for which he would not have been extradited. However, the act clearly applies to this, that a man is not to be tried for any offense committed prior to the surrender, other than some crime which may be proved by tho facts on which the surrender is grounded. There is no doubt of that, and in my opinion, neither the words, nor what is called the spirit of the act of Parliament

that is to say, the true intent and meaning of the act of Parliament have any reference to what is, in this case, a mere civil process. Although the process assumes the form of punishment for contempt of court, it is merely to enforce obedience to an order of a civil court, to do something on behalf of, or for the benefit of, a private person. The process has no reference whatever to any offense committed against the State or against the sovereignty of the State, which are the offenses mentioned in the act. It appears to me that it is impossible to extend the words to such a proceeding as an attachment for a contempt, which is really only a process of coercion to compel the performance

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

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

sustained, because the plaintiff was legally imprisoned under a warrant of a magistrate who had jurisdiction to grant that warrant. That contention therefore failed. It was then suggested that the plaintiff could not be detained on the ground of this contempt of court, because that was an offense within the 19th section of the Extradition Act, committed before he was surrendered to this country. It was suggested that the act only applied to former political offenses, and that the meaning of it was, that the plaintiff could not be tried here for a former political offense, but that he might be tried for a former offense which was not political. Now it seems to me that that is a plain error, and that the act of Parliament plainly applies to all offenses committed in this country before the time of the surrender. The next question is, whether the attachment for contempt is, even though the contempt were committed before surrender, an offense such as is mentioned in the 19th section. A contempt is not a matter which is a triable offense. The attachment is a civil process under which the contemnor is detained, and which he can get rid of at any time by purging his contempt, and it is not, in my opinion, a triable offense, or an offense upon which a man can be tried at all. The real truth is, that the word "offeuse" in the 19th section means a criminal charge, whether a felony or a misdemeanor is immaterial, but an offense which would be triable in a criminal court. Therefore the 19th section does not apply to civil process, and the objections which were taken on that reading of the statute all fail. Then it was said that bringing the plaintiff here, under the warrant which was granted under the Extradition Act, was an abuse of the process of the court; that is to say, that he was not brought here bona fide for the purpose of being charged with an offense against the bankruptcy law at all, but that that process was used indirectly and improperly in order to bring him here for the purpose of taking him under the attachment. If that had been made out, or if the motive had been made out, whether there were ground for it or not the indirect motive-I should have thought there had been an abuse of the process of the court. Whether the person who was using the process might have had colorable evidence or not, if it could be made out that in his own mind he was using the process indirectly and dishonestly-not with the intention of prosecuting, but with the intention of dropping the prosecution and bringing him here only for the purpose of being enabled to enforce the attachment -I should think the court would not allow its process to be abused, and that therefore it would set aside the attachment at once. Then comes the question whether that is proved. Now it seems to me that it is not. Therefore there was no abuse of the process of the court, and if there was no abuse of the process of the court, this attachment may remain.

COTTON, L. J. I am also of opinion that the appeal fails. It was put by Mr. Horton Smith on three grounds, on two of which we did not hear the respondents. The first ground was, that the arrest of the plaintiff was illegal-that thereupon he could not be detained under the attachment. Now that was based simply upon this, that the charge was not sustained, and that when the matter came before the magistrates they said, that as far as that charge went, the plaintiff must be discharged. But that does not show that the arrest was illegal in the sense of having been void, or that it should be treated in a court of law as void. I do not go into the question as to whether or not there were reasonable grounds for the arrest. Even if there were no reasonable gounds for the arrest, yet the arrest was legal; that is to say, it was under a warrant issued by a magistrate who had authority to issue the warrant, and it cannot be considered as null and legally void in the sense in which processes have been treated

as illegal in the cases which have been referred to by Mr. Horton Smith. That may be dealt with shortly. The second point was this: It was said that the detainer under the attachment was in violation of the express provision of the Extradition Act, and the 19th section of that act was referred to. [His lordship read the section and continued:] It is difficult to see here what can be said to the trial of Mr. Pooley when he was taken under the proceedings; but I do not decide on that ground. In my opinion, it is not sufficient to say that what is here represented is his being tried, whatever that may mean, for an offense against the criminal law. In a former part and in a subsequent part of that section mention is made of crimes in respect of which a person can be taken under the act; and although the word "crime" is not used where we find the prohibition, yet the offense there, coupling it with what goes before and what goes after, must, in my opinion, mean an offense against a criminal law, that is to say, a crime for which an action can be tried, in the ordinary sense of the word, under the criminal law. But here there was nothing criminal. Incorrectly, we say a man is guilty of a gross contempt; that is to say, he has disobeyed an order of the court in a civil proceeding. But that is not a crime, an offense against the criminal law; it is an offense which the court is bound to deal with by committing the man to prison, but that is simply for the purpose of enabling a litigant, who has got an order which has been disobeyed, to obtain his civil rights, and it is a mere process to enforce civil rights, and not any proceeding for punishing a crime as suggested. Therefore, in my opinion, the second objection also fails. I will now deal with the third objection, that the whole proceeding had been collusive, that is to say, that the proceedings under the Extradition Act had been taken not for the purpose of getting Mr. Pooley here in order that he might be tried for an offense against the criminal law, but had been taken for the purpose of getting him here in order to enforce the attachment. It is not to the point to show that some one else, other than the person who sought to enforce and did enforce the attachment, had some indirect object in prosecuting the plaintiff. Even if that were made out it would avail nothing, unless it could be shown that the persons who enforced the attachment were parties to that indirect object, so that it might be established to the satisfaction of the court, that on their part, there was such fraudulent conduct, such abuse of the process of the court, as to justify the court in saying that those who had so unduly used the process of the court by fraudulent and collusive conduct should not retain the benefit of it. Fraud on the part of the defendants must be established. I give no opinion at all as to whether there was reasonable or sufficient ground for taking these criminal proceedings. I do not in the least intimate an opinion that there was not. But assuming for the purpose of the argument that it is doubtful whether there was sufficient reason for taking those criminal proceedings, assume, if you will, that it was ill-judged to take those proceedings. That is nothing. Possibly, if there was no ground for criminal proceedings, it may be a step; but what the court must be satisfied of, in order to discharge the order upon this ground, is, that there was a fraud on the part of the defendants who were seeking to enforce the attachment. The evidence does not in any way show, or in my mind lead to a suspicion, that the bank in what they did were authorizing Mr. Barnett to take these criminal proceedings for the purpose of enabling them to enforce their attachment, or in any way raise a suspicion of any such fraudulent conduct on the part of the bank, or those acting for the bank, as to justify the court in saying that there has been here an abuse of the process of the court, and upon that ground discharging the attachment.

NOTE. In the foregoing case the English Court of Appeal adopt a doctrine similar to that in Adriance v. Lagrave, 59 N. Y. 110, where a person extradited from France to this country was detained by arrest under civil process. It was there claimed by the defendant that the extradition proceedings were not in good faith but were fraudulently instituted to bring him within the jurisdiction of the courts of New York. It appeared that the plaintiffs in the civil action were not concerned in the alleged fraud. The court held that there was no ground for setting aside the order of arrest; that in the absence of treaty stipulation there is no implied obligation, binding upon and enforceable by the State courts, not to detain an extradited person brought within their jurisdiction for any act criminal or civil committed prior to the extradition, except the crime specified in the proceedings under which he was surrendered. The New York Court of Appeals, in this decision, refer to the Caldwell case, 8 Blatch. C. C., as sustaining the doctrine adopted. In United States v. Lawrence, 13 id. 295, United States Circuit Judge Benedict sustained a demurrer to a plea to the jurisdiction, by the defendant to an indictment claimed to be for an offense other than that for which he had been indicted. In his opinion the judge refers to the cases of Lagrave and Caldwell as settling the question. In consequence of the decision in the Lawrence case, the English government refused, in February, 1876, to surrender one Winslow, who was demanded by the United States on the charge of forgery, without an assurance that Winslow would not be tried for any other than the particular offense to which the proceedings related. The result of this action on the part of the English government led to an extended correspondence between the two countries, and we believe, to a modification of the then existing extradition treaty. The position taken by the English government met our approval at the time, as it did that of a number of distinguished jurists and writers upon international law.

In the case above reported the English Court of Appeal seem to have disregarded the view maintained by Great Britain in tho Winslow case. See, upon this subject, 13 Alb. L. J. 345, the letters of Hon. W. B. Lawrence, 14 id. 85, 162, and 15 id. 224, the able and exhaustive articles of Dr. Spear, in 16, 17 and 18 id., where every phase of the subject is carefully examined. Commonwealth v. Hawes (Ky. Ct. Appeals), 17 id. 325.-ED. ALB. L. J.

NEW YORK COURT OF APPEALS ABSTRACT.

MARITIME LAW- - CONTRACT TO FURNISH SAILS TO VESSEL BUILDING, FURNISHED AFTER LAUNCHING, A LAND CONTRACT AND LIEN UNDER STATE LAW VALID.— A contracted to furnish sails to a schooner, which was being built. After the schooner was launched, work continued upon it, it was drawu out of the water and put again upon the ways, and while there caulked, painted and fastened, and the sails in question furnished to it. The vessel was a sailing one, and the sails were furnished to complete its building, and were a part of its construction. Held, that the contract of A was a land contract, and a lien against the vessel could be enforced under the State law. The authorities are very clear that an agreement for the building and construction of a vessel is not maritime. Peoples' Ferry Co. v. Beers, 20 How. (U. S.) 402; Roach v. Chapman, 22 id. 129; Morewood v. Eneyuish, 23 id. 491; Edwards v. Elliot, 21 Wall. 532; Cunningham v. Hall, 1 Clifford, 46; Young v. The Orphans, 2 id. 29. The cases, Sheppard v. Steele, 43 N. Y. 52; Brookman v. Hamill, id. 554; Happy v. Mosher, 48 id. 313; King v. Greenway, 71 id. 417, in the use of the words "before launching,

while yet on the ways," while "unfinished on the ways," when "not launched," only refer to the facts existing in those cases, and not with any view of declaring a rule that after launching every contract relating to a vessel is purely maritime. No case holds that the work of building or constructing a vessel cannot proceed after the launch. Indeed, no case could hold that, for it is purely a question of fact. There is, in the case at bar, no difficulty in the conclusion that the sails were furnished as part of the process of construction. In Roach v. Chapman, supra, an engine and boilers were furnished, and the court held that "a contract for building a ship or supplying engines, timber or other materials for her construction, is clearly not a maritime contract.' If an engine is an essential part of a vessel propelled by steam, why are not the sails an essential part of the construction of a sailing vessel? In Edwards v. Elliot, supra, the court say: "No reason is perceived why a contract to build a ship, any more than a contract for the materials of which a ship is composed, or for the instruments or appurtenances to manage or propel the ship, should be regarded as maritime." The contract in the case at bar was a land contract, and a lien under the State law would attach. Judgment affirmed. Wilson et al. v. Laurence et al., appellants. Opinion by Finch, J. [Decided Nov. 9, 1880.]

PUBLIC POLICY - MONEY PAID BY THIRD PERSON TO CREDITOR TO INDUCE HIM TO JOIN IN COMPROMISE NOT

RECOVERABLE BACK.- Plaintiff, to induce defendants to unite with other creditors of the firm of N. & B., in the composition of its debts, gave to them his negotiable note for a portion of the debt due defendants, beyond the amount to be paid by the composition agreement. Defendants signed the agreement, transferred the note to a bona fide holder, and plaintiff having been compelled to pay it brought this action to recover the amount paid. The complaint alleged that plaintiff was a brother-in-law of N., a member of the firm named, had an affection for him and was solicitous to aid him, and that defendants, knowing of these facts, took an unfair advantage and extorted the giving of the note. Held, that the action was not maintainable. The composition agreement is an agreement between creditors; and a secret agreement by which a friend of the debtor undertakes to pay one creditor more than his pro rata share to induce him to join in the composition, is as much a fraud upon the other creditors as if the agreement was directly between the debtor and such creditor. If the defendants were plaintiffs seeking to enforce the note, it is clear that they could not recover. Cockshott v. Bennett, 2 Term Rep. 763; Leicester v. Rose, 4 East, 372. But if plaintiff has voluntarily paid the note he could not, according to the general principle applicable to executed contracts, void for illegality, have maintained an action to recover back the money paid. Nellis v. Clark, 4 Hill, 424. It was claimed that the general rule did not apply to money paid by the debtor or in his behalf, in pursuance of a secret agreement exacted by the creditor, in fraud of the composition, and the cases of Smith v. Bromley, 2 Doug. 696; Smith v. Cuff, 6 M. & S. 160, and Atkinson v. Denby, 7 H. & N. 934, were relied upon to sustain this claim. But these cases go no further than to hold that the debtor himself, or a near relative, who, out of compassion for him, pays the money upon the exaction of the creditor as a condition of his signing the composition, may be regarded as having paid under duress and as not equally criminal with the creditor. They cannot be upheld on the ground simply that such payment was against public policy. It was conceded by Lord Mansfield, in Smith v. Bromley, that where both parties are equally criminal against the general laws of public policy the rule is potior est conditio defendentis. Lord Kenyon said, in Howson v. Hancock, 8 Term Rep. 575: “There