Imágenes de páginas

3d September.


On the 1st June, 1880, Pooley was arrested in Paris

under this warrant. He was kept in confinement UNDER CIVIL PROCESS.

there till about the 10th June, when he was brought to

London and confined in Newgate gaol. The charges ENGLISH COURT OF APPEAL, JULY 23, 1880.

against him were investigated at the Guildhall Police

Court on the 11th, 18th, 23 and 28th June, and on the POOLEY V. WHETHAM.

last day the sitting magistrate dismissed the charges as "Offence" in the 19th section of the Extradition Act, 1870, groundless.

means a crime whether a felony or a misdemeanor, is On the 7th June the defendants obtained an order not confined to political offenses, and does not include a from the Chancery Division that the sheriff of London contempt by disobedience to an order of court in a civil

should be at liberty to lodge the writ of attachment proceeding.

with the governor of Newgate goal, and tbat such Where a man has been arrested on a charge, under a process which it was within the jurisdiction of the court

governor should deliver Pooley, when he should be reto issue, and is discharged from custody because the

leased from such criminal charge, to the governor of grounds of the charge fail, a detainer lodged against

Holloway prison, there to abide until Pooley should him, after the arrest but before the discharge, is not have purged his contempt by obeying the order of the

rendered illegal or invalid by reason of such failure. An attachment was issued against a party to an action for Pooley, on the dismissal of the charges against him, bis disobedience of an order of court. Being bankrupt

was handed over to the governor of Holloway prison and abroad, he was brought back to England under a

where he had since remained. warrant issued under the Extradition Act, 1870, in re

On the 9th July, 1880, Pooley applied to Bacon, V. C. spect of an alleged offense under the Bankruptcy Act

(who had made the order of the 7th June), to discharge 1869, and confined in gaol pending inquiry into the charge before a magistrate. While he was so in custody,

the order of the 7th June, and to discharge Pooley the attachment was lodged with the keeper of the from custody. prison. On the inquiry before the magistrate the charge In an affidavit in support Pooley stated, that since was dismissed as groundless. It was not proved that the dismissal of the charges against him he the extradition proceedings were a device to bring over

opportunity of returning to Paris; that since service on the prisoner in order that he might be subjected to the

him of the order of the 3d September he had not been in attachment. Held, that the prisoner was not entitled to

the island of Jersey, and it had not been within his be discharged from custody till he had purged his con

power to comply with the order; that his interest in tempt by obeying the order.

the railway had been sold; that he had been adjudiOn the 1st Jan. 1879, A. G. Pooley commenced an ac- cated bankrupt nominally at the instance of Sydney U tion against Sir Charles Whetham, the Metropoli Cooper, but, in fact, at the expense of Arthur Cooper tan Bank Limited, and Frederick Nalder, Sir Charles (who was the brother and partner of Francis Cooper, Whetham being the chairman and Nalder being the the receiver, and the liquidator of the bank, which in secretary of the bank, claiming a declaration (1) that the meantime was being voluntarily wound up). Pooley Nalder was a trustee, subject to certain debentures | also stated that the criminal proceedings were instiand advances held and made by the bank, of the Jer tuted against him by H. F. Barnett, who, he alleged, sey Railway; (2) specific performance of an agreement had previously acted as solicitor for the receiver, aud concerning the railway; (3) damages, and (4) an injunc that he believed Barnett was employed by or on behalf tion to restrain the defendants from disposing of the of the Metropolitan Bank, or its successor, the Royal railway.

Exchange Bank, first to purchase a debt of one LoveIn February, 1879, the defendants delivered a defense lock and afterward to procure the appointment of a and a counter-claim for an account of the moneys due nominee of his own, as trustee in the bankruptcy, by Pooley to the bank and Nalder, and for payment of with the object and intention of preferring a criminal the moneys found due.

charge against Pooley for the sole purpose of obtaining On the 9th August, 1879, the court appointed Francis his extradition from France, and so bringing him Cooper as manager of the undertaking of the Jersey within reach of civil process, and without any real Railway, and receiver of the rates, tolls, and sums of belief in his guilt, or the slightest expectation of obmoney arising therefrom.

taining his conviction. Cooper being unable to obtain possession of the rail Pooley and other persons on his behalf made other way from the plaintiff, the court, on the 3d September, | affidavits detailing circumstances alleged in support of 1879, ordered the plaintiff to givo up possession to the application. Cooper, as the receiver and manager.

Affidavits were filed on behalf of the defendants, Pooley was ou the 4th September personally served in denying the alleged collusion of the receiver or liquiEngland with the order of the 3d September, and on the dator with the persons at whose instance the extra5th September he was served with notice of an applica ditiou proceedings were commenced or continued. tion for a writ of attachment for not obeying the order On the 9th July the motion to discharge came on of the 3d September.

before Bacon, V. C., who gave the opinion. On the 10th September, 1879, the court made an order that the defendants should be at liberty to issue an at Bacon, V. C. No doubt this case is one of very tachment against Pooley for his contempt in uot giving great importance, arising as it does upon the supposed up possession of the railway to the receiver pursuant view of an act of Parliament, which coucerns not only to the order of the 3d September.

the people in this country but in foreign countries. Pooley was then abroad where he continued till The provisions of the act of Parliament are very plain. brought over in custody as previously mentioned. The act relates to crimes and to nothing else. The title

On the 22d October, 1879, Pooley was adjudicated a is “An act for amending the law relating to the Extrabankrupt in the London Bankruptcy Court on the pe- dition of Criminals." The 3d sub-section of the 3d tition of Sydney Cooper.

section to which Mr. Horton Smith referred me, proOn the 23d May, 1880, a warrant was issued under vides that, “A fugitive criminal who has been accused the Extradition Act 1873, at the instance of the trustee of some offense within English jurisdiction, not being in bankruptcy acting under the order of the London the offense for which his surrender is asked, or is underBankruptcy Court, for the arrest of Pooley for offenses going sentence under any conviction in the United under the Bankruptcy Act 1869, in obtaining money Kingdom, shall not be surrendered until after he has under the bankruptcy and not accounting for it, and been discharged, whether by acquittal or on expiration not delivering up books.

I of his sentence or otherwise." "Accused” and “convicted” are the words used in that section, and the l of Appeals, gave notice of appeal from the refusal of 19th section upon which Mr. Horton Smith mainly Bacon, V. C., and on the 10th July, the appeal came on relies, is as follows: “Where, in pursuance of any ar for hearing. rangement with a foreign State, any person accused or convicted of any crime, which, if committed in Eng Horton Smith, Q. C., and Northmore Lawrence (Sir 11. land, would be one of the crimes described in the first S. Gifford, Q. C., with them), for Pooley. The detenschedule to this act” – and this offense against the tion of Pooley under the attachment was improper, bankruptcy law is one, no doubt-"is surrendered by whether there was collusion between the receiver and that foreign State, such person shall not, until he has the trustee in bankruptcy to get Pooley into the counbeen restored or bad an opportunity of returning to try under the warrant for the real purpose of executing such foreign State, be triable or tried for any offense the attachment or not. The locking up him at all was committed prior to the surrender in any part of Her illegal. (James, L. J. There is nothing illegal in the Majesty's dominions other than such of the said crimes arrest.] The charge having failed, the detainer on the as may be proved by the facts on which the surrender writ of attachment is inoperative to entitle the deis grounded.” Now, without going into the policy of fendants to keep him in prison. If the first arrest is the act of Parliament, further than the mere perusal wrong and a detainer is afterward issued, that fails as of it renders it inevitable, nothing can be clearer than well as the original arrest. Ex parte Ross, 1 Rose, 260. that the act of Parliament deals with crimes, and with [James, L. J. That was on the ground that the law nothing else. For the public safety and for the sake did not sanction the arrest, but here the law did auof public jnstice, there is a power to procure the ex thorize the arrest,] In Chapman v. l'reston, 3 L. T. tradition of a fugitive criminal in order that he may Rep. (N. S.) 105; 6 H. & N. 406, a bankrupt who was be tried here. Then, in order to guard against its arrested under a ca. sa. when temporarily privileged being made oppressive against people who have com from arrest, and against whom another ca. sq. was mitted no crime other than a political offense - for lodged with the sheriff after tho privilege had expired, any other offense not criminal - there is that protec was ordered by the Court of Exchequer to be distion inserted in the act of Parliament. What has that charged from custody on the ground that the detainer to do with a man who, having been accused — and I was illegal when the arrest was illegal. [Cotton, L. J. must take it, wrongfully accused, since he has been There was an act of Parliament which said that acquitted of the charge against the bankruptcy law - under the circumstances the man should not be arhas been brought over here? Am I to hold that be- rested.] In Bateman v. Freston, 3 L. T. Rep. (N. S.) cause that prosecution has failed, he is to be taken 806; 3 Ell. & Ell. 577, the Court of Queen's Bench discarefully back again to the place from which he came, sented from the judgment of the Court of Exchequer that every outside influence is to be excluded, and that in Chapman v. Freston. The bankrupt subsequently he is to have a privilege, which the subjects of Her | applied to Lord Campbell, L. C., for a writ of habeas Majesty do not enjoy; that he is to go scathless, free corpus, and the matter came before the full Court of from any demand which may be made against him? Appeal in Bankruptcy. The lord chancellor said: Surely I cannot so read the act of Parliament. I can “Assuming the arrest to have been unlawful, I must read the positive enactment that he shall not be tried; say that both on principle and authority the judgment but he is not being tried, when, by reason of his dis of the Court of Exchequer seems to me to be preferaobedience to the order of this court, there is an order ble," and the court ordered the bankrupt to be disfor his committal - an order which he fought, opposed charged from custody. Er parte Freston, 3 L. T. Rep. and resisted, and which was decided against him. His (N. 8.) 832; 3 De G. F. & J. 612. The ground on which disobedience to that order is a continuing breach. Pooley was imprisoned having failed, his detention That continues as well after he is acquitted of the was illegal, and the detainer after the time when the charge as it existed before. It is no new offense in one charge was dismissed ought to have no effect. Under sense. He still refused to obey the process of this section 26 of the Extradition act 1870 (33 & 34 Vict., ch. court, and he refuses to this moment. Neither upon 52), “Extradition crime" means a crime which, if the terms of the statute, which I have looked at with committed in England, or within English jurisdiction, the greatest care and caution, nor upon the meaning of would be one of the crimes described in tho schedule. the statute, can I find the slightest application to this The schedule comprises offenses by bankrupts against case, that of a man who, being a suitor of this court, the bankruptcy law. The same section defines "fugidefies the practice of the court, and says that he places tive criminal” as a person accused or convicted of an himself beyond the reach of it. As to the merits, in extradition crime, which does not mean crime in the my opinion, they are disposed of by the fact that he restricted sense of the word as Bacon, V. C., construed appeared upon the occasion of the application for the it. By section 3, sub-section 2, a fugitive criminal is order and resisted it, and that the decision was not to be surrendered to a foreign State unless provisagainst him. The decision being against him, he has ion is made by the law of that State or by arrangement made no attempt other than by a tag at the end of his that he shall not, until he has been restored or had an present notice of motion, to dispute the decision. It is opportunity of returning to Her Majesty's dominions, too late for him to appeal against it. Then it is said be detained or tried in the foreign State for any offense that he is not able to comply with the order. I heard committed prior to his surrender other than the extrahis affidavit upon that subject. What he says, curiously dition crime proved by the facts on which the surrenenough is, “I was not in Jersey at the time;" but he der is grounded. He is not to be brought over on ono does not say, “therefore I could not deliver up pos offense and then tried for another. And by section 19 session.” A man who is not in Jersey at the time a person surrendered by a foreign State shall not, until when he ought to have obeyed the order, of course he has been restored, or had an opportunity of returncould not then and there deliver up; but that is all he ing thereto, be triable or tried for any offense comsays by way of excuse for his non-obedience to the mitted prior to the surrender in any part of Her order of the court. It may be said to be a laudable at- Majesty's dominions other than such of the said crimes tempt, but in my opinion it is one which entirely fails. as may be proved by the facts on which the surrender The plaintiff in this suit did no inore than the law en is grounded. (James, L. J. Pooley has not been titled him to do; he lodged a writ of attachment with tried. The attachment is coercion, not punishment.] the officer, on the allegation that the person sought to Pooley's offense in disobeying the order was commitbe attached was, or soon might be, in the custody of ted prior to the other offense. (James, L. J. It is the officer with whom the writ was lodged.

committed every day that he neglects to obey the On the 9th July Pooley, by special leave of the Court order.) But disobedience was committed before, and

I admit that he is liable to be re-arrested the moment of the order of the court in what, as I have said, is a he is discharged. [Brett, L. J. It must also be an civil matter. It did appear to us, however, when the offense triable.] If he is not triable he can never be case was opened, that there was no case at all made punished. [Cotton, L. J. If he was tried, it was long upon the affidavits on the other point--that there were before the extradition. Brett, L. J. Does not the circumstances leading, at all events, to a suspicion that word “offense" mean a criminal offense ? ] No. The the extradition had been obtained really by the deonly way he is tried is by a writ of attachment being | fendants for the purpose of bringing Pooley to this issued against him. [James, L. J. The 3d section country, in order that they might then have him says prisoners shall not be “detained," but no such within the jurisdiction of the court, so that they word occurs in the 19th section. And there is nothing might attach him for that contempt. Independently in the act which says a man may not be arrested under of any Extradition Act or any act in the world, if any au old convictiou.] The principle upon which the act thing amounting to such an abuse of the process as was framed was, that a man should not be extradited that were resorted to, we should not have had the for an offense to which the act applied, and then be slightest hesitation in discbarging the plaintiff from punished for an offense for which he could not have the attachment which had been so obtained, or from been extradited. If Pooley is being tried for his dis- any attachment obtained through any other fraud. obedience before his arrest, the act applies; if for an Therefore we desired to ,hare the matter investigated. offense committed since, a new attachment is neces The case of the plaintiff, before it is established, bas sary. It is a very narrow construction to say he can to be proved like any other case, and has to be proved, not be tried, but that ho can be punished without trial. not by any suspicion, not by any inference, not from Suppose a man had been convicted of a political offense suspicious circumstances, but by evidence from which and then escaped from custody on his way to prison, legitimate inferences can be drawn enabling us to say could he be brought over for an extraditablo offense that the parties have made out to our satisfaction that and then punished for his political crime? If collusion the defendants were the persons who put in motion the can be shown, that will be sufficient to make the de- | proceedings under the Extradition Act in order to tention illegal. Stein v. Valkenhuysen, El. Bl. & El. bring the plaintiff here. Now, before we can arrive at 65. [Brett, L. J. It is conceded that collusion of the that conclusion, in my opinion, we must actually prokind there stated would set the arrest aside. The de nounce four persons guilty of willful and corrupt perfendant was induced to come to England by a con jury, committed for the purpose of concealing and certed fraud taken part in by the creditor, who after denying a most wicked conspiracy. That really must ward arrested him.] The evidence shows that the be proved, because, if what one says is true, the eviextradition warrant was a mere device for bringing dence of two other witnesses for the defendants is Pooley within reach of the attachment.

true and the case is clear. [His lordship commented Hemming, Q. C., Pollard and Alexander Young, for

on the evidence for the defendants, and continued :] I the defendants, were called on only as to whether the

see no reason whatever to doubt it, aud in my opinion, defendants, by their conduct, were prevented from

the case has entirely failed against the defendants or

their solicitors. We are not to say whether the crimiavailing themselves of the extradition proceedings. Witnesses for both parties were called and examined

nal prosecution was well founded or not. We are not before the Court of Appeal, tho effect of whose evi

trying an action for malicious prosecution against anydence sufficiently appears from the judgments de

body, nor is it for us to say, what I cannot help thinklivered.

ing the greater part of the object of the examination

and cross-examination is to see, whether any materials JAMES, L. J. The more important question in this have been obtained to sustain such an action, if such case, the public question apart from the importance to | an action should ever be brought. We have nothing the individual concerned, is the construction of the whatever to do with that point, or what will be the Extradition Act of 1870, the 19th section of which, the result, if any thing of that kind is done. But cerlearned judge before whom this matter came first of tainly it has not been proved to my satisfaction that all (Bacon, V. C.) is reported to have said, was confined there was any conspiracy, or design, or device, on the to political offenses - to prevent men being tried for part of the defendants to bring the gentleman into political offenses. I think that what the vice-chance) this country on the criminal charge with a view of lor said was not correctly taken down, as it is quite arresting him on the attachment. On the contrary, it clear that the section does not say that. No doubt the has been satisfactorily disproved, as far as I am conact had reference to political offenses, and was intended cerned. to prevent a man from being brought into a couutry on what wo should call an ordinary common-law BRETT, L. J. In this case Mr. Pooley was brought offense, and then tried for some political offense for into this country under a warrant granted by virtue which he would not have been extradited. However, of the provisions of the Extradition Act, 1870, and he the act clearly applies to this, that a man is not to be was brought here and imprisoned under a warrant, tried for any offense committed prior to the surrender, upon a charge of an offense against the bankruptcy other than somo crime which may be proved by tho law, which is one of the offenses named in the Extrafacts on which the surrender is grounded. There is no dition Act. He was imprisoned here under that wardoubt of that, and in my opinion, neither the words, rant until he was taken before the magistrates, and nor what is called the spirit of the act of Parliament when taken before the magistrates he was discharged

– that is to say, the true intent and meaning of the act from that charge. But before he had been discharged of Parliament - have any reference to what is, in this a detainer had been lodged at the prison in which he case, a mere civil process. Although the process as was confined, on the ground that before he came here sumes the form of punishment for contempt of court, he had been guilty of contempt of court. An attachit is merely to enforce obedience to an order of a civil ment was out against him, and it was claimed that he court, to do something on behalf of, or for the benefit should be detained at that attachment for a contempt of, a private person. The process has no reference of court. Upon that state of facts it was first argued whatever to any offense committed against the State | by Mr. Horton Smith that the imprisonment under or against the sovereignty of the State, which are the the warrant was illegal, and that therefore no detainer offenses mentioned in the act. It appears to me that at all could have any effect. The learned counsel said it is impossible to extend the words to such a proceed- that the plaintiff was illegally imprisoned, because he ing as an attachment for a contempt, which is really was finally acquitted of the charge. Now that ceronly a process of coercion to compel the performance tainly is an argument which to my mind cannot be

sustained, because the plaintiff was legally imprisoned, as illegal in the cases which have been referred to by under a warrant of a magistrate who had jurisdiction Mr. Horton Smith. That may be dealt with shortly. to grant that warrant. That contention therefore The second point was this: It was said that the defailed. It was then suggested that the plaintiff could tainer under the attachment was in violation of the not be detained on the ground of this contempt of express provision of the Extradition Act, and the 19th court, because that was an offense within the 19th sec- section of that act was referred to. [His lordship read tion of the Extradition Act, committed before he was the section and continued :) It is difficult to see here surrendered to this country. It was suggested that what can be said to the trial of Mr. Pooley when he the act only applied to former political offenses, and was taken under the proceedings; but I do not decide that the meaning of it was, that the plaintiff could not on that ground. In my opinion, it is not sufficient to be tried here for a former political offense, but that he say that what is here represented is his being tried, might be tried for a former offense which was not poli- whatever that may mean, for an offense against the tical. Now it seems to me that that is a plain error, criminal law. In a former part and in a subsequent and that the act of Parliament plainly applies to all part of that section mention is made of crimes in reoffenses committed in this country before the time of spect of which a person can be taken under the act; the surrender. The next question is, whether the and although the word “crime" is not used where we attachment for contempt is, even though the contempt find the prohibition, yet the offense there, coupling it were committed before surrender, an offense such as is with wbat goes before and wbat goes after, must, in mentioned in the 19th section. A contempt is not a my opinion, mean an offense against a criminal law, matter which is a triable offense. The attachment is that is to say, a crime for which an action can be tried, a civil process under which the contemnor is detained in the ordinary sense of the word, under the criminal and which he can get rid of at any time by purging his law. But here there was nothing criminal. Incorcontempt, and it is not, in my opinion, a triable offense, rectly, we say a man is guilty of a gross contempt; or an offense upon which a man can be tried at all. that is to say, he has disobeyed an order of the court The real truth is, that the word “offeuse" in the 19th in a civil proceeding. But that is not a crime, an section means a criminal charge, whether a felony or a offense against the criminal law; it is an offense which misdemeanor is immaterial, but an offense which would the court is bound to deal with by committing the man be triable in a criminal court. Therefore the 19th sec. to prison, but that is simply for the purpose of enabling tion does not apply to civil process, and the objections a litigant, who has got an order which has been diswhich were taken on that reading of the statute all obeyed, to obtain his civil rights, and it is a mere profail. Then it was said that bringing the plaintiff bere, cess to enforce civil rights, and not any proceeding for under the warrant which was granted under the Ex punishing a crime as suggested. Therefore, in my tradition Act, was an abuse of the process of the court; opinion, the second objection also fails. I will now that is to say, that he was not brought here bona fide deal with the third objection, that the whole proceedfor the purpose of being charged with an offense ing had been collusive, that is to say, that the proagainst the bankruptcy law at all, but that that process ceedings under the Extradition Act had been taken was used indirectly and improperly in order to bring not for the purpose of getting Mr. Pooley here in him here for the purpose of taking him under the order that he might be tried for an offense against the attachment. If that had been made out, or if the criminal law, but had been taken for the purpose of motive had been made out, whether there were ground getting him here in order to enforce the attachment. for it or not the indirect motive - I should have It is not to the point to show that some one else, other thought there had been an abuse of the process of the than the person who sought to enforce and did enforce court. Whether the person who was using the process the attachment, had some indirect object in prosecutmight have had colorable evidence or not, if it could ing the plaintiff. Even if that were made out it would be made out that in his own mind he was using the avail nothing, unless it could be shown that the persons process indirectly and dishonestly - not with the in who enforced the attachment were parties to that intention of prosecuting, but with the intention of drop direct object, so that it might be established to the ping the prosecution and bringing him here only for satisfaction of the court, that on their part, there was the purpose of being enabled to enforce the attachment such fraudulent conduct, such abuse of the process of -I should think the court would not allow its process the court, as to justify the court in saying that those to be abused, and that therefore it would set aside who had so unduly used the process of the court by the attachment at once. Then comes the question fraudulent and collusive conduct should not retain the whether that is proved. Now it seems to me that it benefit of it. Fraud on the part of the defendants is not. Therefore there was no abuse of the process must be established. I give no opinion at all as to of the court, and if there was no abuse of the process whether there was reasonable or sufficient ground for of the court, this attachment may remain.

taking these criminal proceedings. I do not in the

least intimate an opinion that there was not. But COTTON, L. J. I am also of opinion that the appeal assuming for the purpose of the argument that it is fails. It was put by Mr. Horton Smith on three doubtful whether there was sufficient reason for takgrounds, on two of which we did not hear the respond. ing those criminal proceedings, assume, if you will, ents. The first ground was, that the arrest of the that it was ill-judged to take those proceedings. That plaintiff was illegal — that thereupon he could not be is nothing. Possibly, if there was no ground for detained under the attachment. Now that was based criminal proceedings, it may be a step; but what the simply upon this, that the charge was not sustained, court must be satisfied of, in order to discharge the and that when the matter came before the magistrates order upon this ground, is, that there was a fraud on they said, that as far as that charge went, the plaintiff the part of the defendants who were seeking to enforce must be discharged. But that does not show that the the attachment. The evidence does not in any way arrest was illegal in the sense of having been void, or show, or in my mind lead to a suspicion, that the bank that it should be treated in a court of law as void. I in what they did were authorizing Mr. Barnett to take do not go into the question as to whether or not there these criminal proceedings for the purpose of enabling were reasonable grounds for the arrest. Even if there them to enforce their attachment, or in any way raise were no reasonable gounds for the arrest, yet the a suspicion of any such fraudulent conduct on the part arrest was legal; that is to say, it was under a warrant of the bank, or those acting for the bank, as to justify issued by a magistrate who had authority to issue the the court in saying that there has been here an abuse warrant, and it cannot be considered as null and legally of the process of the court, and upon that ground disvoid in the sense in which processes have been treated charging the attachment.

JAMES, L. J. The appeal will be dismissed with | while yet on the ways," while “unfinished on the costs.

ways," when “not launched," only refer to the facts

existing in those cases, and not with any view ot deNOTE. - In the foregoing case the Euglish Court of claring a rule that after launching every contract relatAppeal adopt a doctrine similar to that in Adriance v.

ing to a vessel is purely maritime. No case holds that Lagrave, 59 N. Y. 110, where a person extradited from

the work of building or constructing a vessel cannot France to this country was detained by arrest under

proceed after the launch. Indeed, no case could hold civil process. It was there claimed by the defendant

that, for it is purely a question of fact. There is, in that the extradition proceedings were not in good the case at bar, no difficulty in the conclusion tbat the faith but were fraudulently instituted to bring him

sails were furnished as part of the process of construcwithin the jurisdiction of the courts of New York. tion. In Roach v. Chapman, supra, an engine and It appeared that the plaintiffs in the civil action were boilers were furnished, and the court held that “a not concerned in the alleged fraud. The court held contract for building a ship or supplying engines, timthat there was no ground for setting aside the order of

ber or other materials for her coustruction, is clearly arrest; that in the absence of treaty stipulation there

not a maritime contract." If an engine is an essenis no implied obligation, binding upon and enforceable

tial part of a vessel propelled by steam, why are not by the State courts, not to detain an extradited person the sails an essential part of the construction of a brought within their jurisdiction for any act criminal sailing vessel? In Edwards v. Elliot, supra, the court or civil committed prior to the extradition, except the

say: "No reason is perceived why a contract to build crime specified in the proceedings under which he was

a ship, any more than a contract for the materials of surrendered. The New York Court of Appeals, in

which a ship is composed, or for the instruments or this decision, refer to the Caldwell case, 8 Blatch. C. C.,

appurtenances to manage or propel the ship, should be . as sustaining the doctrine adopted. In United States regarded as maritime.” The contract in the case at v. Lawrence, 13 id. 295, United States Circuit Judge

bar was a land contract, and a lien under the State law Benedict sustained a demurrer to a plea to the juris

would attach. Judgment affirmed. Wilson et al. y. diction, by the defendant to an indictment claimed to

Laurence et al., appellants. Opinion by Finch, J. be for an offense other than that for which he had been

[Decided Nov. 9, 1880.] iudicted. In his opinion the judge refers to the cases

PUBLIC POLICY — MONEY PAID BY THIRD PERSON TO of Lagrave and Caldwell as settling the question. In

CREDITOR TO INDUCE HIM TO JOIN IN COMPROMISE NOT consequence of the decision in the Lawrence case, the

RECOVERABLE BACK. – Plaintiff, to induce defendants English government refused, in February, 1876, to sur

to unite with other creditors of the firm of N. & B., render one Winslow, who was demanded by the United

in the composition of its debts, gave to them his negoStates on the charge of forgery, without an assurance

tiable note for a portion of the debt due defendants, that Winslow would not be tried for any other than

beyond the amount to be paid by the composition the particular offeuse to which the proceedings related.

agreement. Defendants signed the agreement, transThe result of this action on the part of the English

ferred the note to a bona fide holder, and plaintiff government led to an extended correspondence be

having been compelled to pay it brought this action to tween the two countries, and we believe, to a modifi

recover the amount paid. The complaint alleged that cation of the then existing extradition treaty. The

plaintiff was a brother-in-law of N., a member of the position taken by the English government met our

firm named, had an affection for him and was solicitapproval at the time, as it did that of a number of dis

ous to aid him, and that defendants, knowing of these tinguished jurists and writers upon international law.

facts, took an unfair advantage aud extorted the givIn the case above reported the English Court of Ap

ing of the note. Held, that the action was not mainpeal seem to have disregarded the view maintained by

tainable. The composition agreement is an agreement Great Britain in tho Winslow case. See, upon this

between creditors; and a secret agreement by which a subject, 13 Alb. L. J. 345, the letters of Hon. W. B.

friend of the debtor undertakes to pay one creditor Lawrence, 14 id. 85, 162, and 15 id. 224, the able

more than his pro rata share to induce him to join in and exhaustive articles of Dr. Spear, in 16, 17 and 18

the composition, is as much a fraud upon the other id., where every phase of the subject is carefully ex

creditors as if the agreement was directly between the amined. Commonwealth v. Hawes (Ky. Ct. Appeals), debtor and such creditor. If the defendants were 17 id. 325.- ED. ALB. L. J.

plaintiffs seeking to enforce the note, it is clear that

they could not recover. Cockshott v. Bennett, 2 NEW YORK COURT OF APPEALS ABSTRACT. Term Rep. 763; Leicester v. Rose, 4 East, 372. But if

plaintiff has voluntarily paid the note he could not, MARITIME LAW – CONTRACT TO FURNISH SAILS TO according to the general principle applicable to exeVESSEL BUILDING, FURNISHED AFTER LAUNCHING, A | cuted contracts, void for illegality, have maintained LAND CONTRACT AND LIEN UNDER STATE LAW VALID.- an action to recover back the money paid. Nellis v. A contracted to furnish sails to a schooner, which was Clark, 4 Hill, 424. It was claimed that the general rule being built. After the schooner was launched, work did not apply to money paid by the debtor or in his continued upon it, it was drawu out of the water and behalf, in pursuance of a secret agreement exacted by put again upon the ways, and while there caulked, the creditor, in fraud of the composition, and the painted and fastened, and the sails in question sur cases of Smith v. Bromley, 2 Doug. 696; Smith v. Cuff, nished to it. The vessel was a sailing one, and the sails 6 M. & S. 160, and Atkinson v. Denby, 7 H. & N. 934, were furnished to complete its building, and were a were relied upon to sustain this claim. But these part of its construction. Held, that the contract of A cases go no further than to hold that the debtor himwas a land contract, and a lien against the vessel could self, or a near relative, who, out of compassion for him, be enforced under the State law. The authorities are pays the money upon the exaction of the creditor as a very clear that an agreement for the building and con condition of his signing the composition, may be restruction of a vessel is not maritime. Peoples' Ferry garded as having paid under duress and as not equally Co. v. Beers, 20 How. (U. S.) 402; Roach v. Chapman, criminal with the creditor. They cannot be upheld 22 id. 129; Morewood v. Eneyuish, 23 id. 491; Edwards | ou the ground simply that such payment was against v. Elliot, 21 Wall. 532; Cunningham v. Hall, 1 Clifford, | public policy. It was conceded by Lord Mansfield, in 46; Young v. The Orphans, 2 id. 29. The cases, Shep- Smith v. Bromley, that where both parties are equally pard v. Steele, 43 N. Y. 52; Brookman v. Hamill, id. criminal against the general laws of public policy the 554; Happy v. Mosher, 48 id. 313; Kiug v. Greenway, 71 rule is potior est conditio defendentis. Lord Kenyon id, 417, in the use of the words “before launching, ' said, in Howson v. Hancock, 8 Term Rep. 575: “There

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