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Philadelphia, Pa., Memorandum of agreement made March 7, 1885. THE COURT. In this suit this 4th day of March, 1884, by and between the Clay for wages it is alleged as a defence that the plainCommercial Telephone Company and Charles M. Root, tiff was discharged for bringing a suit against

in which the said Charles Root contracts his services

unto said company for the term of one year from March his employer, the defendant corporation, and it 17, 1884. The said Charles M. Root hereby agrees is contended that when a servant brings suit to devote his entire time and abilities to the interests of against his master he is guilty of a breach of the said company, as their exchange-manager and elec-duty which justifies his discharge. If this were trician, for which services he is to receive the compen-true it would be in the power of an employer to sation of one hundred dollars per month, the same to be guaranteed to him by this company for the period of withhold unjustly a servant's wages, and thus The company further agrees to pay the said force him to forego them or lose his place if he Charles M. Root a fair and equitable price for any inven- sue for them. While therefore it is undoubted tions controlled by him which they in the course of their that faithful service is a condition precedent to a business may deem it advisable to use." servant's right to compensation, we do not think that bringing suit against his master is a breach of duty or a sufficient cause for discharging him or withholding his wages.

one year.

With the foregoing copy plaintiff filed an averment that he entered the service of the defendant under this contract, and received the stipulated sum of $100 per month until November, 1884, when defendant refused to pay him.

Rule absolute.

Oral opinion by BIDDLE, J.
ALLISON, P. J., absent.

The affidavit of defence admitted the contract and the employment of the plaintiff thereunder until towards the end of October, 1884, and alleged that the plaintiff had then been discharged, because, though knowing the effect C. P. No. 1. would be to injure the defendant's credit he had brought suit against it for the price of certain switches bought of him for use in the company's exchange, and that therefore the plaintiff was not in its employ or entitled to compensation during the month of November, 1884. The affidavit averred also that this suit was premature.

John Walker Shortlidge, for the rule. The fact that the plaintiff had brought a suit against the defendant was not a sufficient reason for discharging him.

Geo. W. Smith (with him W. W. Ker), contra. Any violation of the fidelity which a servant owes his master justifies the servant's discharge.

Libhart v. Wood, 1 W. & S. 265.
Singer v. McCormick, 4 Id, 265.
Peacock v. Cummings, 10 Wr. 434.
Cassidy v. Janauschek, 41 Leg. Int. 488.
Amor v. Fearon, 9 A. & E. 548.
Read v. Dunsmore, 9 C. & P. 588.

[BIDDLE, J. Suppose a servant is hired by the year and his wages are payable monthly, if his wages are not paid when due and he brings suit,

F. M. L.

March 7, 1885.

Kitchen v. National Life Ins. Co. Practice-Nonsuit for want of a bill of

particulars.

should not be entered, for failure to furnish a bill Rule to show cause why judgment of nonsuit should not be entered, for failure to furnish a bill of particulars within three months after demand duly made.

This was an appeal by the defendant from the judgment of a magistrate in a suit for commissions, claimed by the plaintiff to be due him as defendant's agent. On May 20, 1884, the plaintiff appeared and filed the common counts, and at the same time entered a rule to plead. May 27, 1884, the defendant demanded a bill of particulars, to which the plaintiff's counsel replied in a note acknowledging the demand and stating that the rule to plead was meanwhile to be regarded as stayed. No bill of particulars was filed.

Francis E. Brewster, for the rule.

The defendant is entitled to a nonsuit under

within the year, for arrears, is that good ground Rule of Court XXXI. § 128. for discharging him?

PEIRCE, J., Or suppose he lends money to his master and afterwards, noticing that his master is getting into difficulties, brings suit to protect himself, is that a breach of his duty as a servant?]

THE COURT. Rule absolute.
ALLISON, P. J., absent.

[See Linderman v. Land Co., ante, 192.]

Yes, in either case, for such a course is incom- c. P. No. 1. patible with the relation of master and servant.

At all events, the plaintiff cannot maintain this action. If the hiring was by the month the discharge was no breach of contract.

If it was

by the year, the suit is premature for the plaintiff
cannot sue until the year has expired.

Stewart v. Walker, 2 Harris, 293.
Kirk v. Hartmann, 13 Sm. 97.

F. M. L.

March 6, 1885.

Replevin-Execution-Action ex delicto- Where defendant's claim-property bond proves worthless, plaintiff may issue a ca. sa.

Rule to quash capias ad satisfaciendum. This was an action of replevin brought to obtain possession of certain goods purchased by

the plaintiff, in which the latter obtained judg-| C. P. No. 2. ment for $83.41.

At the time of the purchase the goods were in the possession of the defendant, who refused to Practice-Attachment under the Act of 1869deliver them, alleging that he had a lien upon Affidavit in support of-Sufficient if it is made them. in the words of the Act.

As a bond has been given, the plaintiff is con- cheat and defraud his creditors, that said defendant fraudfined to his remedy on that.

March 9, 1885. | will of Joseph Dugan, the decedent, alleged that Penn National Bank v. Gunnis, Barrett the petitioner is informed, and believes that all the conditions are fulfilled upon which the said Promissory note-Partnership-Fraud-Affida- testator directed a distribution of his estate, and vit of defence-In order to compel an indorsee that there is now vested in said petitioner an in an action on a promissory note of a firm, undivided one-fifth interest thereof. The prayer made by one member thereof for his own pur- of the petition was in the usual form for a citaposes, to show consideration, the affidavit of tion, etc. defence must allege that the note was not made with the knowledge or assent of the firm, and was not ratified by it after being made. Rule for judgment for want of a sufficient

U. S. Circuit Court-
Law.

Western Dist. of Pa.

tioner, his commitment to the penitentiary by the Court of Oyer and Terminer of Clarion County, under his conviction and sentence for burglary.

The treaty between the United States government and that of Great Britain, of 1842, commonly called the Webster-Ashburton treaty, February, 1885. under which the petitioner was extradited, pro

In re James W. Miller.

Habeas corpus—Extradition—Treaty of 1842 between the United States and Great Britain.

vides as follows:

"It is agreed that the United States and her Britannic Majesty shall, upon mutual requisitions made by them or their ministers, officers, or authorities, respectively made, In August, 1881, M. was convicted of burglary, and the crime of murder, or assault with intent to commit deliver up to justice all persons who being charged with sentenced to undergo an imprisonment of seven years in murder, or piracy, or arson, or robbery, or forgery, or the the Western Penitentiary of Pennsylvania. In December, utterance of forged paper, committed within the jurisdic1881, he escaped and fled to Canada. Burglary not being a crime for which extradition could be demanded, within the territories of the other, provided that it shall tion of either, shall seek an asylum or shall be found under the treaty between the United States and Great be done only on such evidence of criminality as, accordBritain, informations charging him with robbery and ing to the laws of the place where such fugitive shall be assault with intent to commit murder, were made against found, would justify his apprehension and commitment him in Pennsylvania, and under extradition proceedings for trial, and the respective Judges or other magistrates of had on these charges, he was surrendered March 11, the two governments, shall have power, jurisdiction, and 1882. He was then at once taken to the Western Peni-authority, upon complaint under oath, to issue a warrant tentiary of Pennsylvania, where he has since been held. Bills of indictment on the charges on which he was extradited were ignored by the grand jury, January 17, 1883. Upon habeas corpus:

Held, that he was not entitled to be discharged.

Habeas corpus, against E. S. Wright, warden of the Western Penitentiary of Pennsylvania. The facts in the case as disclosed by the petition and return to the writ, are fully set forth in the opinion of the Court, as follows:

The petitioner was convicted of burglary in the Court of Oyer and Terminer of Clarion County, Pennsylvania, and thereupon was sentenced August 23, 1881, to undergo an imprisonment for the period of seven years in the Western Penitentiary of Pennsylvania, to which prison he was duly committed. In December,

for the apprehension of the person so charged, that he may be brought before such judges or other magistrates, respectively, to the end that the evidence of criminality may be heard, and if, on such hearing, the evidence be deemed sufficient to sustain such charge, it shall be the duty of the examining Judge or magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitive."

James T. Maffett and William R. Blair, for the petitioner.

A person extradited for an offence within the treaty cannot be tried for a different offence not within its terms.

U. S. v. Watts, 14 Fed. Rep. 130 (1882). Com. v. Hawes, 13 Bush, Ky. 697 (1876). And it has further been held that a person extradited can only be tried on the particular charge on which he was surrendered.

1881, he escaped therefrom, and fled to Canada. State v. Vanderpool, 39 Ohio, 273 (1883). Burglary not being an extradition crime, infor- There is no distinction to be made between a mations were made in January, 1882, in said person convicted and a person charged with county of Clarion, charging him with robbery crime. The question is entirely one of asylum. and assault with intent to commit murder, and The petitioner admittedly could not have been under extradition proceedings had on these brought back and imprisoned upon the record of charges he was surrendered March 11, 1882. his conviction for burglary. There is no authorHe was then taken back to the Western Peni-ity of law for such proceeding. Is not his imtentiary of Pennsylvania, where he has since prisonment then, under the facts set out in the been held. Bills of indictment against him on petition (disregarding entirely all question of said charges of robbery and felonious assault public faith, morals, and policy), without the were ignored by the grand jury of Clarion authority of that public law which the ConstiCounty on January 17, 1883.

The petition alleges that said informations were gotten up by the penitentiary authorities as a mere pretext to secure petitioner's return, to the end that they might seize and imprison him on his conviction for burglary.

The return of the warden of the penitentiary sets up as his authority for holding the peti

!

tution of the United States declares "shall be the supreme law of the land?"

Caldwell's Case, Lawrence's Case, and Adriance v. Lagrave (cited by respondents), are all discussed and disregarded in the later cases. cited above. For a thorough and just criticism of these cases see—

Spear on Extradition, pages 95–116.

E. A. Montooth & Bro., for the respondents, [treaty, must therefore be regarded as still open, cited

Caldwell's Case, 8 Blatch. 131.

Lawrence's Case, 13 Id. 295.

Adriance v. Lagrave, 59 N. Y. 110.

February 18, 1885. THE COURT. The petitioner claims his discharge on the ground that he is unlawfully held in custody, in violation of the tenth article of the treaty of 1842, between the governments of the United States and Great Britain. Briefly, the facts of the case are these. [The Court here stated the facts, ut supra.]

The application for the petitioner's discharge proceeds upon the theory that the treaty between the United States and Great Britain secures to the extradited person immunity from detention for any crime other than that upon which the surrender is made, or at least exemption from detention for any offence not within the treaty.

while the precise question before me it would seem is altogether new.

If the treaty affords the petitioner the immunity he claims, it is by mere implication, for assuredly it does not in express terms confer on extradited persons any immunity whatever. It provides that the respective governments upon requisition made, and upon satisfactory evidence of the alleged criminality, shall "deliver up to justice" all persons who being charged with any of seven specified crimes (of which burglary is not one), committed within the jurisdiction of either, shall seek an asylum or be found within the territories of the other. There is, however, no provision in the treaty guaranteeing the extradited person the right to leave the demanding country after his trial for the offence for which he was surrendered, in case of acquittal, or in case of his conviction, after his endurance of the punNow it is indeed true that it has been held by ishment therefor. Nor is there any express Judge HOFFMAN, in United States v. Watts (14 limitation upon the causes of his detention. Fed. Rep. 130), and by the Supreme Court of Indeed, as to his disposition after his surrender Kentucky, in Commonwealth v. Hawes (13 the treaty is altogether silent. The high conBush, 697), that an extradited person under this tracting parties might have provided for a treaty cannot be tried for any offences other surrender upon conditions, but they have not than extradition crimes, and in State v. Vander- seen fit to do so. Whence then springs the petipool (39 Ohio St. 273), the Supreme Court of tioner's supposed immunity? Upon what sound Ohio carried the doctrine of exemption still principle can the demand of this convicted further, holding that the extradited person criminal, to be set at liberty before the expiracould be put on trial only for the particular tion of his sentence, be allowed? Clearly an offence for which he had been surrendered. offender can acquire no rights against the claims Upon these adjudications, which on account of of justice by flight to a foreign jurisdiction the eminence of the Judges and Courts pro- (State v. Brewster, 7 Vermont, 118; Dow's nouncing them, are certainly entitled to great Case, 18 Pa. St. 37) and extradition treaties respect, the petitioner's counsel confidently rely are not made in the interest of fugitive crimas establishing a principle applicable to and inals. In the absence then of express stipuladecisive of this case. But then, on the other tion imposing restraints upon the receiving govhand, in United States v. Caldwell (8 Blach. 131), and United States v. Lawrence (13 Id. 295), it was held by Judge BENEDICT (who gives most cogent reasons for the conclusion), that extradition proceedings do not by their nature secure to the person surrendered for one crime immunity from prosecution for other offences, whether within the treaty or not, and he distinctly ruled that no such immunity is conferred by the treaty now under consideration. A like determination was reached by the Court of Appeals of New York in Adriance v. Lagrave (59 N. Y. 110) where an extradited person, surrendered by the government of France under treaty stipulations, was arrested on civil process. The question whether the treaty of 1842 between the United States and Great Britain prohibits the trial of the extradited person for an offence not specified in the proceedings or named in the

ernment, it seems to me the intention is not to be imputed to the parties to the treaty, to exempt the surrendered fugitive from deserved punishment for an offence, regarded by the laws of both countries as a gross crime, of which he had previously been duly convicted.

It may have been open to the petitioner when before the Canadian Courts, to show that the extradition proceedings were not prosecuted in good faith. But having been surrendered it is not for him to raise that question before the tribunals of his own country. (Adriance v. Lagrave, supra; Dow's Case, supra.)

I am of opinion that the petitioner's complaint that he is in custody in violation of the treaty under which he was extradited, is groundless. Hence his discharge must be denied. And it is so ordered.

Opinion by ACHESON, D. J.