the parties which it purports to bind, it is not what the purchaser had a right to expect he was buying, and under the doctrine of implied warranty he could recover against his vendor.8 If the parties whose names appear upon the paper are in law incapable of contracting on account of some disability as infancy, coverture, lunacy, etc., the transaction between the transferrer and his vendee has not the requisites which it was agreed existed, and he may recover back the amount paid.9 If the transferrer of a bill or note at the time he made the assignment knew that a valid defense against it existed, or that the parties to it were insolvent, the concealment of such knowledge is a fraud upon the transferree, and he can recover.10 If with this knowledge he represents the paper to be good, the fraud is greater and the transferree can recover. 11 Money ignorantly paid by an accommodation maker on a note which had been so altered since its execution as to relieve him from liability can be recovered. A note having been so altered by the owner and holder when presented to the accommodation maker, was paid by him in ignorance of this fact, and without his making a critical examination of it, held to be a case for recovery.12

The rule that a bona fide holder of negotiable paper is not affected by prior equities between the maker and payee does not apply when the holder receives it from the original payee by assignment or sale without endorsement, and he gets no better title than the payee, and the maker is not estopped from maintaining any defenses that would have been good against the original payee. A mere assignment of negotiable paper without endorsement confers upon the holder the same rights only as he would derive upon an assignment of a bill or note not negotiable. If in such case the beneficial interest be assigned, but there is no endorsement upon the paper, suit would have to be brought in the name of the It would seem payee.13 8 Hurd v. Hall, 12 Wis. 112; Fuke v. Smith, 7 Abb. N. Y. N. S. 106.

9 Baldwin v. Van Deusen, 87 N. Y. 487; Lobdell v. Baker, 3 Metc. 472; Husy v. Sebley, 68 Main 192. 10 Story on Bills 225.

11 Kennedy v. O'Connor, 85 Ga. 199; Bridge v. Batchelder, 9 Allen 394.

12 Traker v. Little, Supreme Court of Kansas 12 Cent. L. J. 21.

13 Spinning v. Sullivan, Supreme Court of Michigan 14 Cent. L. J. 837; Andrews v. MeCoy, 8 Ala. 920; Gookin v. Richardson, 11 Ala. 880.

in

that such cases, unless otherwise stipulated, the vendor by legal implication represents to the purchaser of the note that it constitutes a valid claim against the maker and endorsers, and if it should turn out otherwise, the purchaser could recover from his vendor in accordance with the rule. heretofore cited.14

The measure of damages in the class of cases we have been considering, is thus laid down by the Court of Appeals of Kentucky in Hurst v. Chambers, supra: "The appellant, when he assigned the note, undertook and agreed with the assignee that the latter could enforce it against the parties whose names. were signed to it, or at least, that a legal obligation existed upon the part or the obligors to pay it; and upon a failure to make the money out of the obligors, by reason of some legal defense existing at the time of the assignment, the assignee is not only entitled to recover the amount paid for the note with its interest, but all the costs and expenses incurred in the prosecution of the action to enforce its collection."

charged in Butler County with an offense within the provisions of the treaty of 1842, between the United States and Great Britain; that they had been tried in Butler County for that offense, convicted and sentenced to the penitentiary, and that the term of their imprisonment has not yet expired.

They claim that until a reasonable time after the expiration of that sentence, they cannot be tried for another offense.

On demurrer to this plea the court of common pleas so held, and remanded the prisoners to the authorities of the penitentiary, and stayed the proceedings until a reasonable time after the termination of their imprisonment to enable them to return to Canada.

The State excepts to this decision, and now asks leave, under the provisions of section 7306 of the Revised Statutes, to file a bill of exceptions to the

same.

D. A. Hollingsworth and A. H. Mitchell, for plaintiff in error; C. H. Blackburn, for defendants in error.

JOHNSON, C. J. delivered the opinion of the Court:

I. The demurrer to plea presents the question, whether the facts stated, exempted the accused from prosecution in Belmont County, until a reasonable time has elapsed after the expiration of their sentence for the crime committed in Butler County.

The State had obtained possession of the accused from the authorities of Canada, under the provisions of the Ashburton Treaty, for trial in Butler County.

They were there tried, convicted, and sentenced for the crime upon which they were extradited. Before the expiration of this sentence, the State sought to place them on trial for another crime charged to have been committed before extradition in Belmont County, the latter crime being one for which the accused might have been extradited.

The court of common pleas held that proceedings on the indictment in Belmont County must be suspended until a reasonable time after the expiration of the sentence in the Butler County case, or in other words, that the State, having obtained possession of the criminals, under the extradition treaty could not detain them in custody and put them on trial for another crime.

It was held, that the obligations of this treaty created a personal right in favor of the person extradited, which he could plead in suspension of a prosecution for such other crime.

By the tenth article of the Ashburton Treaty, it was "agreed that the United States and her Britanic Majesty shall, upon mutual requisitions by them, or either ministers or authorities, respectfully made, deliver up to justice all persons who, being charged with the crime of murder or with assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the

jurisdiction of either, shall such an asylum be found within the territories of either: Provided, that this shall only be done upon such evidence of criminality as according to the laws of the place where the fugitives or persons so charged shall be found, would justify his apprehension and commitment for trial if the crime or offense had been there committed; and the respective judges and other magistrates of the two governments shall have power, jurisdiction and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such judge or other magistrates respectively-to the end that the evidence of criminality may be heard and considered; and if on such hearing, the evidence be deemed sufficient to sustain the 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 fugitives. The expense of such apprehension and delivery shall be borne and defrayed by the party who makes the requisition and receives the fugitive."

Independent of treaty stipulations, the obligation to surrender fugitives from justice was of an imperfect nature. It rested on comity between States. Each determined for itself the extent of this obligation, and the nature of the crime and mode of surrender.

Prior to, as well as since the treaty of 1842, it has been the settled policy of both the United States and Great Britain to furnish an asylum for persons charged, in other States, with religious or political offenses. Each zealously vied with the other in maintaining this right of asylum. Hence it was that the treaty of 1842, was expressly limited to seven well defined crimes. Hence it was, also, that the right to demand a surrender in the specified case named, was so carefully guarded. The accused was protected in his asylum, unless the authorities there should find him guilty of one of the crimes specified in the treaty. By the terms of the treaty, the judge or the magistrate of the government upon whom the demand was made, is to hear and determine according to the laws of his own country, whether there is a case made, and if so, to report to the proper executive authority, who shall issue a warrant for his extradition.

The right of the United States to demand the surrender of a fugitive from justice found in the British dominions, is purely conventional, hence the correctness of the ruling of the court below depends on the true construction of the treaty, and also how far the judicial tribunals of the demanding government are required to give effect to the treaty stipulations, especially how far the judicial tribunals, Federal and State, can take cognizance of and enforce the provisions of the treaty upon the plea of the person surrendered.

In U. S. v. Caldwell, 8 Blatchf. 131, and U. S. v. Lawrence; 13 Blatchf. 295, Judge Benedict held, that while the abuse of the provisions of the treaty

or want of good faith by the demanding government might furnish cause of complaint by the surrendering government, yet such complaints do not form a proper subject for judicial cognizance; see, also, Adriana v. Lagrave, 59 N. Y. 110. Other cases to the same effect might be cited, but as the decisions and the views of writers upon the subject differ so widely, we are free to determine the question from the terms of the treaty itself, guided by the well-established rules for the construction of such instruments.

By Sec. 2, Art. 6, of the Constitution of the United States: "This constitution, and the laws of the United States made in pursuance thereof, and all treaties made, or which shall be made under the . authority of the United States, shall be the supreme law of the land, and the judges of every State shall be bound thereby, anything in the constitution and of any State to the contrary, notwithstanding."

This treaty is, therefore, the law of the land, and the judges of every State are as much bound thereby, as they are by the constitution and laws of the Federal or State government.

It is, therefore, the imperative duty of the judicial tribunals of Ohio to take cognizance of the rights of persons arising under a treaty to the same extent as if they arose under a statute of the State itself.

While authority is not wanting to support the decisions in Caldwell v. Case, and in Lawrence's case, supra, yet we submit that these decisions ignore the provisions of the Federal Constitution just cited. Again if it be true that the abuse of extradition proceedings under this treaty is an offense for which the surrendering government alone can complain, the remedy is totally inadequate, and the treaty itself may be rendered nugatory. Where, as in the present case, the surrender is to one of the States, the prisoner passes beyond the control of the Federal Government, and into that of this State. Upon complaint made by the British Government to the Federal Government, of an abuse by the State of Ohio of the process under the treaty, the Federal Government could only answer, as it has done in many instances heretofore, that under our system of State and Federal government, the latter is powerless to control the State authorities. If the rights under the treaty to be protected from other prosecutions, can only be enforced by the surrendering nation, by protest or otherwise, against the one making the demand, that is, if it is a question not cognizable in the courts, it is of little value under our system of federal and State government. After the United States has secured the surrender for an offense against State law, the accused is delivered to the authorities of the State for prosecution, when all federal control is lost. If the accused is of little or no political influence, the difficulty of giving him that protection which was intended by the treaty is so great, if the courts cannot intervene, that it is of little or no value as a protection to the person extradited.

We conclude, therefore, and both reason and the weight of authority support this view, that the judges of this State are bound by the provisions of this treaty, and that if it secures to the person extradited exemption from trial, for crimes and offenses other than those specified in the warrant of extradition, it is the duty of the court to take cognizance of his plea; Foster v. Nutson, 2 Peters 253; Commonwealth v. Hawes, 13 Bush. 700; Winslow's Case, 10 Am. Law Rev. 617; U. S. v. Watts, 14 Federal Rep. 130; North Am. Rev., May, 1883, page 497.

II. As to the right of demanding government to hold the accused and prosecute him for a different crime or offense.

This treaty is to be subject to the same rules for ascertaining the intention of the contracting parties, as in case of other contracts.

It enumerates seven well defined crimes for which extradition may be had. It thereby excludes all non-enumerated crimes and offenses, whether of political or other character, and leaves the surrender in such other cases to the discretion of the government, where he is found.

It limits the duty of the surrender to those cases specified in the treaty, in which the evidence of guilt is sufficient, according to the laws of the nation where the fugitive or person charged is found, to justify his committal for trial, if the act charged had been committed there.

The right of the nation where the fugitive is found, to first hear and determine the case, and to decide upon the evidence, whether, according to its own laws, the crime charged has been committed, i. e., whether a case for committal has been made out, secures to the government upon which the demand has been made, the right to determine for itself whether the demand shall be complied with. This necessarily excludes the idea that the demanding government can decide for itself, to try the prisoner, after obtaining custody, for other crimes; otherwise the purpose of the treaty is defeated. If the demanding government can so decide, the whole intention of the treaty could be defeated, and the right of asylum, which has been the boast of both governments, would depend entirely on the action of the demanding government.

To extradite under the treaty for an offense named therein, and then to retain the prisoner for a non-extraditable offense, or for a different one though extraditable, upon which no hearing had been had as provided in the treaty, would be, not only a breach of good faith by the demanding government, but a violation of the right of asylum in favor of the accused, guaranteed to him by the treaty. The sole object of the treaty was to enable each government to protect its citizens, and inhabitants in the right of asylum, except they come within the provisions named. The legislation of both governments clearly supports this construction.

By the act of congress of 1848, U. S. Rev. Stats. sec. 5272: “It shall be lawful for the Secretary of

State, under his hand and seal of office, to order the person so committed to be delivered to such person as shall be authorized in the name and behalf of such foreign government, to be tried for the crime of which such person shall be so accused."

Again, by sec. 5275: "Whenever any person is delivered by a foreign government, and brought into the United States to be 'tried for any crime of which he is duly accused,' it is the duty of the president to take proper measures for his transportation and safe keeping until the conclusion of his trial, 'for the crimes or offenses specified in the warrant of extradition, and until his final discharge from' custody or imprisonment for or on account of such crimes or offenses, and for a reasonable time thereafter, and may employ such portion of the land or naval forces of the United States, or of the militia thereof, as may be necessary for the safe keeping and protection of the accused."

In like manner the British parliament in 1843, for the purpose of carrying into effect the treaty, enacted that the person to be extradited should be delivered to the person authorized by the United States to receive him, "to be tried for the crime of which such person shall be accused."

While legislative interpretation of statutes is not conclusive upon the courts, yet in the case of a treaty which is in its nature a contract between nations, enactments like these by the high contracting parties are of pursuasive power in the construction of the treaty.

The right of the State of Ohio over the accused, who had sought an asylum in Canada, is derived from the provisions, express or implied, of the treaty of 1842.

In view of the provisions of this treaty, the safeguards therein provided against the infringement of the right of asylum, save in the specified cases, and the legislation by both governments to carry out those provisions, we think it clear that the court below did not err in refusing to put the accused on trial for a crime for which they were not extradited.

In the correspondence between the United States and Great Britain, which took place in 1876 growing out of the refusal of the latter to surrender Winslow, except upon a stipulation by the former that he should not be tried for another offense, the conflicting views of the two governments are stated.

Winslow had been demanded as a refugee, charged with forgery. Great Britain refused to deliver him unless the United States would stipulate that he should not be tried except for the crime charged. This was refused and an extended correspondence was the result. Finally the British Government, as a temporary measure and until a new treaty was made, suspended its claim to require such a stipulation.

Time will not permit an analysis of the claims of the two governments. It is sufficient to say that it discloses a contrariety of views by eminent

statesmen and publicists upon the questions ar issue, and that the refusal by the United States to make the stipulations demanded, was based chiefly on the ground that the demand was unusual, and was a reflection upon our government after a successful execution of the treaty for near forty years without such a stipulation.

If it be conceded that the United States asserted the right to retain an extradited prisoner and try him for another crime, then that claim in not conclusive upon the courts. Nothing was then settled as to the true construction of the treaty. If,. as we hold, the question is one of personal right under the treaty, as well as of an international kind, it follows that the courts can hear and determine such right where it is invaded. Much more might be said in support of our conclusions, but we content ourselves with a reference to the following discussions and decisions on the subject; Commonwealth v. Hawes, 13 Bush. 627; United States v. Watts, 14 Fed. Rep. 130; Letter of William Beach Lawrence, 19 Albany Law Journal 329; on "Extradition," North American Review, May, 1883, p. 497; Title "Extradition," Wash. Crim. Plead. & Prac. secs. 38 to 57 and casesnoted; Blanford v. State, 10 Tex. 627; In the matter of Mark Cannon, 47 Mich. 487; Spear on Extradiction, chap. 4, p. 65 to 74; 10 Am. Law Review, 617; Compton, Ault & Co. v. Wilder, 3 Ohio Law Journal 642 (Sup. Ct. Com). Leave refused.

CORPORATION-RECEIVER-LIABILITY FOR TORTS.

ROGERS V. MOBILE, ETC. R. CO.

Supreme Court of Tennessee, June 8, 1883.

1. A railroad company is not liable for injuries inflicted upon persons or property while its railway is being managed and operated by a receiver.

2. There is no privity of interest between a railroad company and a receiver who is managing and operating its line of railway, and it is not error to refuse to allow a receiver to be made a party-defendant with the railway company.

3. A receiver of a railway is liable in his official capacity for injuries inflicted by himself or his employees engaged in operating the road.

4. A receiver duly appointed can only be sued by permission of the court which appointed him.

I. F. Huddleston, for appellant; E. L. Russell and B. B. Boone, for appellee. SNODGRASS, Com., delivered the opinion of the

court:

The plaintiff brings this action to the Supreme Court by writ of error, and seeks the reversal of the judgment of the circuit court for refusing to strike out the plea of the defendant, and for refusing to permit an amendment making William

Butler Duncan, receiver, a party-defendant with the railroad company.

The facts necessary to be recited are, that plaintiff sued defendant in the circuit court of McNairy county for $5,000 damages for injuries, which he had sustained while in the employment of the company.

Defendant plead to the declaration that, at the time of the injury complained of, it was not in the possession of the road, cars or property thereof, nor controlling the same, nor the agents, servants or employees engaged thereon, but that the same were in charge of William Butler Duncan, receiver, appointed by the Circuit Court of the United States for the Fifth Judicial Circuit and Southern District of Alabama, at Mobile, and also by the Circuit Court of the United States for the Sixth Judicial Circuit and Western District of Tennessee, etc. This plea was signed by counsel, but was not sworn to, and plaintiff moved to strike it out on that ground. This motion was overruled by the circuit judge, and we think there was no error in his action based upon the motion. Plaintiff then moved "for leave of the court to make William Butler Duncan, surviving receiver, a party-defendant with the railroad company," which motion was also overruled, upon which plaintiff replied denying the averments of the plea. Issue was made up, and the case submitted to a jury, which found in favor of the defendant. No bill of exception is filed, and no complaint made of the judgment. As before stated, the two errors alleged are the overruling of the motion to strike out the plea and the motion to amend by making William Butler Duncan, receiver, a co-defendant with the railroad company. These are the only questions presented.

The fact that no other exception was taken to the plea than the one mentioned may be regarded as a concession that it was a sufficient defense if true, and that is settled by the verdict. It has, however, been held in several cases in other States, that a railroad company is not liable for injuries occurring while the road and its property are in the hands of a receiver and controlled and operated by him. Ohio, etc. R. Co. v. Davis, 23 Ind. 553, 560; Bell v. Indianapolis, etc. R. Co., 53 Ind. 57; Metz v. Buffalo, etc. R. Co., 58 N. Y. 61. It is held that a receiver operating a railroad is answerable in his official capacity for an injury to a servant employed on the railroad by reason of the negligence of the receiver or of his agents in a position superior to that of the servant injured. O'Meara v. Holbrook, 5 Am. Rep. 633; 20 Ohio St. 137.

But it is said that he can only be sued in or by authority of the court appointing him. Ibid. Hall v. Duncan, 7 Cent. L. J. 146; Bank v. Simpson, 9 Cent. L. J. 251; Wiswall v. Sampson, 14 How. (U. S.) 52; Peale v. Phipps, 14 How. (U. S.) 368; Barton v. Barbour, 104 U.S. 126

We have been furnished with no opinion by our own Supreme Court upon either question, and have not been able to find any. In lieu of an

opinion, however, a judgment of the Supreme Court of Tennessee, rendered at Jackson, April 26. 1878, in the case of Hurgle v. Mobile, etc. R. Co., and a certified transcript of the record in that case have been submitted to us by counsel of the defendant, in which the questions were involved in the court below, and were decided, as was insisted by defendant, as was done, by the learned circuit judge in this case. In the case referred to, the action of the circuit judge was aflirmed by the Supreme Court, and the case remanded on the day and date before given, but we think that the judgment of the Supreme Court was not necessarily upon the questions involved. The facts in that case were as follows: It was a suit by the plaintiff in the law court of Humboldt against defendant, for damages for the killing of her husbank. Defendant filed a special plea, as in this case, that William Butler Duncan and A. Foster Elliott were, at the time of the killing, in charge of the road, cars, employees, etc., as trustees and receivers by appointment of the Circuit Court of the United States for the Fifth Judicial Circuit and Southern District of Alabama, etc. Plaintiff demurred to the special plea as insufficient, and as presenting no defense to the action. The demurrer was overruled, and the plaintiff allowed to appeal.

We know of no authority for an appeal in such case from a judgment overruling a demurrer, it not being an equity case. Code, sec. 3157 and notes. Plaintiff also moved to amend the summons so as to make Duncan and Elliott, receivers, defendants with the company, and to make them defendants, subject to the leave of the Federal court, which motion was overruled, to which ruling plaintiff excepted. Plaintiff then took the pauper's oath for an appeal, the oath reciting that the appeal was from the judgment of the circuit court "on motion to amend the pleadings." The entry of the judgment in the Supreme Court shows that the "parties appeared by attorneys, and thereupon the record proceedings of the court below being seen and understood by the court, and it appearing that there was no error in the same, it is therefore considered by the court that the judgment be in all things affirmed, and the suit dismissed." This judgment was manifestly entered by agreement or inadvertence. Plaintiff's sult had not been dismissed below and there had been no final judgment in it.

The appeal should have been dismissed, and the order dismissing the suit, we think, would not have been entered if the attention of the court had been cited to it, nor do we think that this case was ever considered by the court and the questions disposed of on its merits. No written opinion was delivered, and it is hardly probable that the court would have passed upon a new question, so far as our courts are concerned, of this importance in so summary a manner without giving any reason or authority therefor; and inasmuch as the merits of the controversy were not before them upon such an appeal, we think that they did