They are not obliged to accept and run them at all times and seasons, and not in the ordinary course of business. The contract before us involves very few things ordinarily undertaken by carriers. The trains were to be made up entirely of cars which belonged to plaintiff, and which the defendant neither loaded nor prepared, and into the arrangement of which, and the stowing and placing of their contents, defendant had no power to meddle. The cars contained horses which were entirely under control of plaintiff, and which under any circumstances may involve special risks. They contained an elephant, which might very easily involve difficulty, especially in case of accident. They contained wild animals, which defendant's men could not handle, and which might also become troublesome and dangerous. It has always been held that it is not incumbent on carriers to assume the burden and risks of such carriage. The trains were not to be run at the option of the defendant, but had short routes and special stoppages, and were to be run on some part of the road chiefly during the night. They were to wait over for exhibitions, and the times were fixed with reference to these exhibitions, and not to suit the defendant's convenience. There was also a divided authority, so that while defendant's men were to attend to the moving of the trains, they had nothing to do with loading and unloading cars, and had no right of access or regulation in the cars themselves. It cannot be claimed on any legal principle that plaintiff could, as a matter of right, call upon defendant to move his trains under such circumstances and on such conditions; and if he could not, then he could only do so on such terms as defendant saw fit to accept. It was perfectly legal and proper, for the greatly reduced price, and with the risks and trouble arising out of moving peculiar cars and peculiar contents, on special excursions and stoppages, to stipulate for exemption from responsibility for consequences which might follow from carelessness of their servants while in this special employment." Citing Mann v. White River Log and Booming Co., 46 Mich. 38; S. C., 41 Am. Rep. 141.

In People v. Shriver, U. S. District Court, Illinois, Judge Treat has just decided upon the effect of a sale with delivery to a carrier, C. O. D. The defendant was indicted for carrying on the business of a retail liquor dealer at Fairfield, Illinois, without having paid the special United States tax there. He lived at Shawneetown, Illinois, where he had paid the special tax, and the goods were sent by express from Shawneetown to Fairfield, C. O. D. The court said: "In deciding this case it only seems to be necessary to consider the effect of the sales made by shipment from Shawneetown to Fairfield by express, C. O. D.,' to be delivered at Fairfield by the agent of the shipper to the consignee upon payment of the price. It is clear that the express agent at Fairfield was also the actual agent of the defendant in receiving and delivering the liquor

shipped to Fairfield, and in collecting the money for it, for the defendant employed him for that purpose, and agreed to pay him ten per cent on the money collected by him, without reference to whether the liquor was shipped 'C. O. D.' or by tags attached to the jugs, with the price and address marked thereon. Certainly then, as to all the packages shipped 'C. O. D.,' the ownership and possession of the liquor remained in the defendant after reaching the hands of his agent in Fairfield, just as completely as before it left his store in Shawneetown, and the sale did not take place until the defendant, by his agent, received the money at Fairfield, and delivered the liquor there to the purchaser. This would be true, too, even if the Fairfield express agent had not been specially emploved as the defendant's agent in the handling of this liquor, for in the case of liquor shipped by the defendant to Fairfield by express, 'C. O. D.,' the liquor is received by the express company at Shawneetown as the agent of the seller, and not as the agent of the buyer, and on its reaching Fairfield it is there held by the company, as the agent of the seller, until the consignee comes and pays the money, and then the company, as the agent of the seller, delivers the liquor to the purchaser. In such case the possession of the express company is the possession of the seller, and generally the right of property remains in the seller until the payment of the price. An order from a person in Fairfield to the defendant at Shawneetown for two gallons of liquor, to be shipped to Fairfield 'C. O. D.,' is a mere offer by the person sending such order to purchase two gallons of liquor from the defendant, and pay him for it when he delivers it to him at Fairfield, and a shipment by the defendant according to such order, is practically the same as if the defendant had himself taken two gallons of liquor from his store in Shawneetown, carried it in person to Fairfield, and there delivered it to the purchaser, and received the price of it. It would be different if the order from Fairfield to the defendant was a simple order to ship two gallons of liquor by express to the person ordering, whether snch order was accompanied by the money or not. The moment the liquor under such an order was delivered to the express company at Shawneetown it would become the property of the person ordering, and the possession of the express company at Shawneetown would be the possession of the purchaser the sale would be a sale at Shawneetown - and if it were lost or destroyed in transit the loss would fall upon the purchaser. But in the case at bar the shipping of the liquor to Fairfield, C. O. D., defendant made no sale at Shawneetown; the right of property remained in himself, and the right of possession, as well as the actual possession, remained in him through his agent. Had it been lost or destroyed in transit the loss would have fallen upon himself. He simply acted upon the request of the purchaser, and sent the liquor to Fairfield by his own agent, and there effected a sale by receiving

the

the money and delivering the liquor. In the case of Pilgreen v. State, 71 Ala. 368, cited by defendant's counsel, the distinction between absolute and conditional sales seems to have been overlooked."

In Miller v. Ruble, 15 W. N. Cas. 431, Pennsylvania Supreme Court, Nov., 1884, it was held that signing by the grantor is essential to the validity of a deed. The deed in question recited six grantors, and had six seals, but was signed by only four of the described grantors. The court said: "It is true at an early day in England signing was not considered essentially necessary to the validity of a deed. It is not stated as one of the things necessarily incident to a deed at common-law. Co. Litt. T. 1, C. 5, Sec. 40, 35b. A due sealing thereof was deemed a sufficient execution. This however was by reason of a very general inability to read or write. 1 Reeves Hist. of Eng. Law, 184, in note. In 1

Blackstone's Com. 305, it is said to be requisite that the party whose deed it is should seal, and now in most cases, I apprehend, should sign it also. He proceeds to state that under Saxon rule seals were not of much use in England. Their method, for such as could write, was to subscribe their names, and whether they could write or not to affix the sign of the cross. On the conquest by the Normans they introduced waxen seals only, instead of the English method of writing their names and signing the sign of the cross. These seals however generally had specific devices to distinguish them from each other. The statute of 29 Charles II, and the first section of our act of March 21, 1772, indicated a necessity that all transfers of land should be put in writing, and be signed by the parties making the same. This was deemed necessary for the prevention of frauds and perjuries. Our act makes no reference to a seal for the purpose therein mentioned, but requires the writing to be signed. It was however held more than one hundred years ago that the signing of a deed was a material part of the execution thereof, and that the seal had become a mere form, and a written or ink seal, as it was called, was good. McDill v. McDill, 1 Dall. 64. The sufficiency of such a form of seal, when the deed is signed by the maker, was affirmed in Long v. Ramsay, 1 S. & R. 72. It is true in Maul v. Weaver, 7 Barr. 329, Mr. Chief Justice Gibson did say that he did not entirely concur in what was said in those cases, that the signing of a deed was the material part of its execution, yet he admitted it to be the most powerful evidence of the joint or separate ensealing thereof. In that case however the question was whether covenant could be maintained against the grantee in a deed when he had neither signed nor sealed it, but it concluded "in witness whereof the said parties have hereunto interchangeably set their hands and seals the day and year first above written,' and was signed and sealed by the grantor alone. In Liggett v. Long, 7 Harris, 499, a treasurer's deed was held sufficiently executed where he had omitted to write his signature

near the printed impression of a seal, but had put it on the deed, to a receipt for the taxes and costs, and for the bond, for the surplus purchase-money, and had also acknowledged the deed in open court, which acknowledgment was entered on the records of the court, and duly certified on the deed. Cases may undoubtedly be found in which judges of this court have cited English authorities to prove that at common law, irrespective of statutes, signature was not essential to a deed. Hoffman v. Bell, 11 P. F. S. 444, cited by counsel for plaintiff in error, is one of them. That case however was not ruled on the validity of a deed sealed and not signed, but on the fact that the evidence failed to prove that any deed had been delivered or executed. The great industry and careful search of counsel have not resulted in his being able to cite a case since McDill v. McDill, in which it was held by this court, on a direct presentation of the question, that a cuted without any signature of the vendor. On deed professing to convey land was sufficiently exe

the contrary, in Watson v. Jones, 4 Norris, 117; McDill v. McDill is cited approvingly by Mr. Justice Gordon.

The recognition of any rule which dispenses with the necessity of the signature of the grantor would be fraught with great mischief. Aided by a pliant justice of the peace, or by a false personation before an honest one, it would provide a convenient way to rob a man of his land without the trouble and danger of forging his signature."

SOME MORE FACTS ABOUT LAWYERS "TOOLS."

HE New York Daily Register of February 10th

THE New York Der ffonister. Winters, ay 10th

sistant librarian of the New York Law Institute Library, directly impugning some of our statements in a former issue, in regard to the defects of that library. We had fully intended to compliment Mr. Winters upon those strong points of the Institute Library which we deemed largely due to his intelligent interest; in this we referred more especially to case-law, and to the post-Revolutionary statute law of the various States of the United States. Our statement in regard to the bad condition of our colonial laws, not affecting that library more than all others, is not challenged, and we presume is conceded to have been accurate, and accurate it certainly was.

Mr. Winters however does distinctly challenge our statement that the literary material, used by Story and Wheaton, in their great commentaries, did not exist in the Institute Library, and if we understand him aright he says it does so exist. The issue is a plain and simple one, and in so far as it is consistent with a very brief outlay of time we propose to make good our assertion, although those who inconsiderately deny the statements of others are not justly entitled to be furnished with evidence. No doubt the Institute Library is a great library: It represents care, intelligence, and a cer

tain amount of scholarship, but it is precisely what we said, lacking in finish and completeness in some of the higher regions of jural thought, and our suggestions, made in a kindly spirit, were intended simply to indicate a deficiency easily supplied in case the governing body chose to set to work in a less perfunctory fashion. A few hints of this kind are not calculated to injure any institution.

Unless Story could have written his Commentaries on the Constitution without much of the material he cites, as we said, he certainly could not have written it at the Law Institute Library. Story knew that the entire governmental superstructure of the United States was not new, but that it was reared on the colonial fabric, and that the revolution indicated a change, and not res nova. He, therefore, begins his work with an elaborate description of the jural condition of the original colonies, and he cites a great deal of material which is not inaccessible, and which determined effort ought long since to have gathered on the Institute shelves.

Works which deal with the colonial laws of New York and with the laws of other colonies, a period almost twice as long as our present government has endured, are certainly not to be relegated to the anatomical museums; they belong, and properly belong, in a first-class American law library. Story evidently thought they belonged to a law book, or he would not have referred to them as he does in his great work. In the first book of his Commentaries on the Constitution this author makes a number of references to colonial authorities, none of which are in the Institute Library. We refer by name to "Chalmers' Annals; Douglass' British Settlements, Pownall's Colonies, where the rights and constitution of the Americans are discussed; Stoke's American Constitutions, with a variety of colonial precedents; Bacon's Laws of Maryland, printed at Annapolis in 1764; Charters of North American Provinces, London, 1766; Colony Laws of Connecticut; Plymouth Laws; Holmes' Annals; Proud's Pennslyvania; Dallas' Laws of the Commonwealth of Pennsylvania; Walsh's Appeal, Philadelphia, 1819, and Hazard's Collection of State Papers, Philadelphia, 1792-4. All these works are indispensable to lawyers dealing with colonial patents, boundary questions, or with issues involving the fundamental common-law rights of Americans. Besides those mentioned by Story, others occur to us as missing from the Institute, such as the Charters of the old English Colonies, London, 1850, a late book, but sure to become rare in course of time, and already desirable for a law library.

Nor do we credit Mr. Wheaton, as does Mr. Win

ters, with the art of getting his facts from his head, and unless he possessed this art, as we said, he could not have written his great work in the precincts of the Law Institute Library. The reasons why he could not have written them may be briefly indicated: The most debatable question in all international law is the foundation on which the socalled law rests. Some theory on this subject is usually introductory to any systematic treatise on

the Law of Nations, and Mr. Wheaton's treatment conforms to the ordinary rule. In his précis he refers to a number of works, few of which seem to be in the Institute Library, though of course the more noted are there. But the delicate threads of this author's thoughts could have not been fashioned at the Law Institute, as we said.

It

Wheaton refers to Cicero's De Republica, Hobbe's DeCive; to Leibnitz' Jesuits De Legibus, Codex Juris Gentium, and to Marten's Noûveau Recueil. These famous works which certainly go to make up a complete law library are not in the New York Law Institute. We do not find there, indeed, Lord Liverpool's Discourse as to Neutral Nations, nor Schoell's Histoires des Traités de Paix, nor Arendt's Essai sur la Neutralité de la Belgique, yet in a few pages they are often cited in Wheaton's International Law. What Mr. Winter's theory as to Wheaton's work is, we do not know, but we do know that our statements as to Wheaton's inability to have worked as he did in the Institute Library was the fact, not fiction, nor careless editing on our part. We repeat again what we also have said before, that the New York Law Institute Library, really admirable as it now is, cannot be made great or beyond criticism, by one collector or by two. needs the co-operation of many men of many minds, and it needs a scholarly atmosphere. It is no longer the little technical library in the Federal Court House in Chambers street. It has now over thirty thousand volumes, and is increasing rapidly in size, and is taking a place among the literary institutions of modern civilization. The question with us was, should it now change its motive and become something more than a mere workshop? Should it be artistic, elegant and complete, or wholly utilitarian? In short, should it be only a complete record of judicial utterances, no matter how crude or forlorn, or comprise also the science, the philosophy, and the genius upon which the fewer and best judicial utterances have been fashioned? Our judgment was that in this collection more attention had been paid to reports, to statutes, and to size, than to completing the collection in any one of the several higher walks of jural science, and we think so still, Mr. Winters to the contrary notwithstanding. In this statement we did not ignore the fact that the Institute Library had been originally collected as a mere help to practicing lawyers, but we had supposed that a division of labor, which always takes place as political societies become more complex, now made it expedient for the library to go out of the statistical line and into the systematization of statistics, in other words, into the science and philosophy of the law. But here Mr. Winters' letter seems to think that the Institute Library fulfills every rational requirement, and if his complacency in this respect is shared by the Institute, we can only regret that our hints have fallen on such stony ground, and are to bear no fruit.

We should also while on this subject advert to the curious idiosyncrasy which regards an Ameri

can law library as moderately complete in the philosophical department, although possessing no copy of such works as Plato's Laws, Aristotle's Politics, Hobbe's Leviathan and Bodin's Work on the Comwealth, translated into English in 1605, and most potent in its influence on English jurisprudence.

No doubt the line of demarcation between strictly technical libraries and libraries of purely literary character is not a very wide or perceptible one, but it nevertheless exists, and it can be easily perceived by cultivation and attention. If it is imagined that it can be perceived in the dark or by any one in odd moments with casual attention, it is an error. For this reason great technical libraries

are the result of the profoundest co-operative labor,

and not of the accidental or casual attention of a few busy, bustling men, however able. With care the line of demarcation indicated may be detected, but it will require an examination of several cognate fields, bordering on the strictly jural relations.

The science of politics and the science of law are

and a Savigny combined, he could not make a complete law library by himself.

Having paid some attention to the subject under discussion, we can furnish a good many more suggestions to the improvement of the Law Institute Library, as well as to that of our other law libraries, although we do not for an instant suppose that the evidently satisfied temper of the Institute faculty in particular will suffer it to deviate from a mechanical policy, adopted, as Mr. Winters states, some twentyfive years back. In conclusion we desire to say that our statements in regard to the library in question were facts, and not, as. Mr. Winters thinks, errors. When we make errors them, but when we do not, we do not care to be we are glad to correct hastily impugned.

EXTRADITION-HAM V. STATE, 4 TEX. APP. 645.

before the Court of Appeals of Texas

ology. Without some knowledge of the science of politics, the legal legislator may as easily go wrong as right-who then shall say that works on the science of politics are not part of a technical law library? If they are a part, why is not Freeman's Comparative Politics at the disposition of a reader in the Law Institute? Where are Vico's Scienza Nuova and a score of other great books on political science? Certainly next to this category belong such works as M'Lennen's Primitive Marriage, De Lavelye's Primitive Property, if not Sir A. Lyall's Aisiatic Studies.

Let us suggest another line of thought! Did it ever occur to Mr. Winters, or to any of the library committee of the Law Institute, that the colonial re. ports of the British colonies offer us two strict analogies where the later English reports offer us one? As a Dutch colony originally, we of New York present many similarities in our legal development to Good Hope, and the other Dutch possessions which have drifted under English laws. In those colonies comes up the conflict between the Dutch and English laws which occasionally arises here. As a colony of England the law of New York, in the last century, would receive more valuable illustration from English colonies than from Great Britain. We do not however propose to tutor the faculty of the Law Institute Library, or to censure any one, for we are not a public censor morum, but it does seem to us that any helpful, honest suggestion from a law journal to a law institution should be welcomed rather than hastily and inconsiderately challenged. Mr. Winters is at liberty to impugn our statements if he wishes, but we beg to say to him for his future guidance that when we make plain statements of fact we are prepared to stand by them. In all that we have said we mean no reflections on the labors of Mr. Winters himself labors of great professional and technical value - but we do mean to say that were he a Scaliger, a Muratori,

Texas, on the basis of an indictment found against him by the grand jury of Limestone county in Texas, charging him "with the crime of forging a deed to land in Texas." Being brought into the State, and lodged in the jail of Travis county, he was charged by another indictment, preferred by the grand jury of that county, with the crime of uttering a forged infor which he was extradited, and though, as charged, strument. For the latter offense, though not the one committed prior to his extradition, he was tried, convicted, and sentenced to punishment.

A motion for a new trial was made, and this motion being overruled by the court below, an appeal was legal points-the only one that we propose to consider taken to the Court of Appeals of Texas. One of the -on which the appeal was based, raised the question whether it was "lawful to try the defendant ou a charge for which he was not extradited, and alleged to have been committed at a date anterior to the inception of the extradition proceedings." The counsel of Ham maintained that this was not lawful, and hence that the trial court was without jurisdiction.

The substance of what Judge White, in stating the opinion of the court, said on this point, is epitomized in the following language-found in the syllabus of the case

"Under the provision of the United States Constitution respecting the rendition of fugitives from justice, and the laws regulating the same, a citizen of another State, extradited therefrom to this State, may be here tried for a different offense than that alleged against him in the requisition on which he was extradited to this State. The doctrines of international extradition in this respect, whether based on comity or on treaty stipulations, have no application to extradition cases arising between the different States of the American Union under their common Constitution, whose imperative mandate on this subject is founded on the mutual trust and confidence of the States, and guarded by the guaranty that each State shall secure to the citizens of her sister States the privileges and immunities she concedes to her own."

The actual ruling of the court in this case, being that of the highest court of Texas, settles the law for the courts of that State in respect to this particular question, and also furnishes an authority to be considered by the courts of other States. The correct

ness of the ruling, and of the reasoning in support of it, is open to inquiry; and such an inquiry it is proposed to make in the present article, and in the following order:

1. After referring to the American and British doctrine that there can be no international extradition, except as provided by treaty stipulation, Judge White proceeds to say, that "without any treaty stipulation to that effect, it may now be considered as a well established doctrine of international extradition that good faith and comity require of the nation to which the fugitive is surrendered that he be tried alone upon the specific offense for which he was surrendered, and that he cannot be held to answer for another and different offense." We have here, in respect to interna tional extradition, even without a treaty stipulation to that effect, the admission of the principle for which the British government contended in the correspondence with regard to Winslow, which was placed in the English Extradition Act of 1870, which has been uniformly asserted by the text-writers on extradition, which is now sustained by the preponderance of judicial authority in this country, and which the counsel of Ham claimed to be applicable to a case of interState extradition.

2. Judge White, while admitting this principle when the extradition is international, denies its applicability to a case of inter-State extradition, stating as follows the first of his reasons for the denial:

"The relations between the States, as created by the general government, under their status and intercourse were different in most material respects, civilly and politically, from that subsisting between separate and independent nations. And this difference is especially apparent in the difference, heretofore alluded to, existing as to the modes of procedure in extradition matters."

What the actual difference is between the States of the Union, and independent nations, considered relatively to their status and intercourse with each other, Judge White does not explain, with the single exception of that which exists "as to the modes of procedure in extradition matters." This he presents by a lengthy quotation from the deliverance of Chief Justice Savage, in the Matter of Clark, 9 Wend. 212. The quotation however has no reference to the point that was before the Court of Appeals of Texas. Clark made no such claim as that set up in behalf of Ham. He simply offered to show by his own affidavit that the charge against him was not true; and in reply Chief Justice Savage said, that the actual truth of the charge was not the question to be decided. Whatever might be requisite in the way of proof if the case were one of international extradition, the only question before the court was whether Clark was "properly charged with the guilt." If he was, that was "sufficient" in inter-State extradition; and hence his offer to show by his own affidavit that the charge was false was not admissible. All that was said in the passage quoted relates to this single point.

The Constitution, in a case of inter-State extradition, requires that the party should be charged with some specific crime; and as an indictment or an affidavit is the usual American mode of charging a crime, and sufficient evidence of its commission to justify, in the case of an indictment, the arrest and commitment of the accused party for trial, and in the case of an affidavit, the arrest and examination of this party, with a view to his commitment if the evidence be found sufficient, Congress saw fit to adopt this mode of pro cedure in charging a crime for the purpose of arresting and delivering an alleged fugitive from justice to the State demanding him for trial, leaving that State, after getting possession of the fugitive, to determine the question of his actual guilt. The fact that the

party is charged with crime, in the way prescribed, is made a sufficient presumption of guilt to justify his arrest and surrender.

The procedure, in international extradition, as provided for by law and by treaty, is somewhat but not wholly different. The party must, by complaint on oath, be charged with some one or more of the crimes specified in the proper treaty; and when this is done, authority is given for his arrest and an examination of the charge. This examination is not a trial with a view to his punishment, if found guilty, but simply a process to ascertain whether the evidence is "sufficient to sustain the charge under the provisions of the proper treaty or convention." Rev. Stat., § 5270.

The general treaty rule, as to the sufficiency of evidence, is that it must be such "as according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial if the crime or offense had there been committed." The evidence must be sufficient to secure precisely the same legal result that in inter-State extradition is secured by the charge of crime in the way specified. In both cases there must be a sufficient prima facie showing of crime to justify the apprehension and commitment of the accused party for trial; and in neither case is it necessary to prove the actual guilt of this party. In re Farez, T Blatchf. 345, 358.

Now it is undoubtedly true, that in the two forms of extradition, there is some difference in the procedure; but this difference is not one that in either form has any relation to the question whether the party, if delivered up, may or may not be tried for a crime different from the one for which he was demauded and on the charge of which he was surrendered. There is manifestly nothing in it to indicate, or even suggest, that he cannot be so tried when the extradition is international, or that he may be, when it is inter-State. Whatever may be the truth on this subject must depend on other considerations thau such as grow out of a difference of procedure in the two forms of extradition, especially when we remember that in both forms there must be a sufficient showing of crime to justify the apprehension and commitment of the accused party for trial.

The simple charge of crime by indictment or affidavit does this in the one case; and the charge of crime, by complaint on oath, supplemented by an examination at which the proper evidence appears, does this in the other. The result reached in both cases is the same, and this is a sufficient showing of crime to justify the apprehension and detention of the party for trial. We fail to see what logical connection the difference of procedure in the two cases has with the question to which Judge White was speaking.

3. The next point relating to extradition, found in the deliverance of Judge White, cannot be better summarized than in the following words of the syllabus:

"The doctrines of international extradition in this respect, whether based on comity or on treaty stipulations, have no application to extradition cases arising between the different States of the American Union under their common Constitution, whose imperative mandate on this subject is founded on the mutual trust and confidence of the States, and guarded by the guaranty that each State shall secure to the citizens of her sister States the privileges and immunities she concedes to her own."

Here are two reasons for the opinion expressed; and the first of these reasons is "founded on the mutual trust and confidence of the States" in each other as members of “the American Union under their common Constitution," which do not exist to the same extent in the intercourse of nations with each other.