would work great embarrassment in the administration of the criminal law.

In Ex parte Scott, 9 Barn. & Cress. 446, the accused was arrested at Brussels by a police officer, without any warrant of law, and brought back to England. The prisoner was brought up on habeas corpus, that she might be discharged. It appeared a true bill had been found against her for a misdemeanor, and Lord Tenterden, before whom the writ was heard, refused to inquire into the circumstances of her arrest, whether it was legal or illegal, and held the accused amenable to justice. It was said in that case, if the act complained of were done against the law of a foreign country, that country might have vindicated its own law. It does not seem to be doubted that this case accurately states the common law on this subject, nor is it doubted that many well-considered American cases declare the same doctrine. State v. Smith, Bailey (S. C.) L. R. 281, and note; State v. Brewster, 7 Vt. 118; Adriance v. Lagrave, 59 N. Y. 110; State v. Ross, 21 Iowa, 467; United States v. Caldwell, 8 Blatchf. 131; United States v. Lawrence, 13 id. 295. The rule is different in civil cases, for the reason a party guilty of fraud in bringing a party within the jurisdiction of the court will not be permitted to have a personal advantage from his own wrongful conduct.

It may be well to recur again to the distinction taken by counsel which it is insisted takes the case being considered out of the rule established by the English and American cases cited, that some further discussion may be had upon it. The position taken is that where a treaty exists between two governments, as no capture can lawfully be bad of a party accused of crime in a country to which he has fled for asylum except under the terms of such treaty, if a capture and removal of a party is made in violation of the treaty, it is without "due process of law," and the court within whose jurisdiction the accused is wrongfully brought obtains no rightful jurisdiction to try him for any crime-either for the crime for which it was attempted to extradite him or for any other crime. The exact question arising in this case was not involved in either of the cases ut supra, nor indeed has the attention of the court been called to any case where the facts were precisely analogous.

It is confidently insisted all through the argument for the defense, that defendant's right of asylum, under the treaty between the two governments, was complete when he was domiciled in Peru, and that he has been deprived of that right by sheer force, without due process of law." But is that position tenable? Upon what principle can it be maintained? As a question of law, on the facts as stated in the plea, defendant never had any right of asylum in Peru that would secure him immunity from arrest on account of offenses mentioned in the treaty, and for which a party was subject to extradition. Conceding, as may be done for the purposes of this decision, the proposition insisted upon, the enumeration of certain crimes in the treaty for which a party may be extradited, implies that as to all other offenses he is guaranteed asylum in the country where he is domiciled, how does that, if true, affect the question being considered? As to the crime of larceny, with which defendant was charged, he could have no rignt of asylum in Peru, as that is one of the crimes enumerated in the treaty, and what right secured by treaty was violated when he was arrested, either with or without due process of law? The accused was subject to extradition at any time under the treaty, and what difference can it make in law as to the right of a State court to try defendant for an extraditable crime, whether the existing treaty was in fact observed in all its forms? That which was done, if wrong, was in violation of international law, and if

the government of Peru does not complain of the arrest of defendant within its jurisdiction as an infraction of international law, it does not lie in the mouth of defendant to make complaint on its behalf. Questions arising under international law concern principally the nations involved, and their settlement is a National affair.

Rejecting, as must be done, the erroneous assumption defendant had the right of asylum in Peru under the treaty between the two governments, and the argument for the defendant was wholly without force. It is plain he had no right of asylum the law of either government would protect. The treaty as to the crime of larceny, with which defendant stood indicted, had provided no asylum that would secure him immunity from arrest for that crime in the country where he was domiciled. The utmost that can be claimed is that the person having the president's warrant for the extradi tion of defendant proceeded irregularly, and may have rendered himself liable as for a personal trespass, but he deprived defendant of no right of asylum in the country of his temporary domicile, for the simple reason he had none secured by any public law of which he could be dispossessed.

The attention of the court has been called to Commonwealth v. Hawes, 13 Bush, 700; State v. Vanderpool, 39 Ohio St. 273, and other analogous cases, upon which great stress is laid, as holding principles it is insisted ought to control the present decision. These cases have been examined, and it is found they hold the doctrine a fugitive from the justice of the State who has been brought back from the country to which he had fled, on a warrant of extradition, in conformity with the terms of a treaty existing between the two governments, cannot be proceeded against or tried by the State for any other offenses than those mentioned in the treaty, and for which he was extradited, without first being afforded an opportunity to return to the country whence he had been brought. Some of these cases also declare the familiar principle of interna tional law that the right of one government to demand and receive from another the custody of an offender against its laws, and who has sought an asylum in such foreign country, depends upon treaty stipulations between such governments. Where no treaty exists, no obligation that can be insisted upon exists to surrender criminals for trial to the goverament from which they have fled; but as a matter of comity between nations, great offenders are usually surrendered on request from the government claiming the right to try them. A principle running through this latter class of cases has much that commends itself to a sense of justice. It is that where a person whose extradition has been granted for trial for a particular crime named in the extradition warrant, the demanding government obtains no lawful right to try him for any other offenses, without bad faith to the government that cousented to his extradition, and for which it would have just ground to demand reparation Such an act would be in violation of both the letter aud spirit of the treaty.

But this doctrine, if it shall be conceded it has for its support natural justice, and even the weight of au thority, can have no application to the case being considered. Here the complaint is the treaty was not observed in the capture and detention of defendant. It was done by force outside of its provisions. The extradition warrant issued by the executive of the United States demanded defendant should be surrendered on a charge of larceny, that he might be tried for that offense. That is an extraditable crime under the treaty with the government of Peru. It was on that charge he was put on trial. It is true he was not convicted of larceny as at common law, but the same indictment

contained counts for embezzlement, an offense of which, if convicted, the statute declares "he shall be deemed guilty of larceny," upon which he was tried at the same time of the trial of the charge of larceny, and was convicted.

There is another reason that leads to the same conclusion the case in hand is not within the rule declared in the latter line of decisions. It is that defendant, as has been seen, was not surrendered by the government of Peru under its treaty with the United States. According to the averments in the plea, no effort was made to obtain defendant on the extradition warrant, and the official authorities of Peru were not asked to, and never did, consent to his capture within the jurisdiction of that government. done by sheer force, and not under the treaty at all. That brings the case more nearly under the decisions first cited, and they must be regarded as of controlling authority.

It was

But aside from all authority, on principle defendant has shown no right to immunity from prosecution for the offenses for which he was indicted. The Federal government has of itself violated no treaty with the republic of Peru. The arrest and detention of defendant was not by any authority of the general government, and no obligation is implied on the part of the Federal or any State government to the republic of Peru to secure defendant immunity from prosecution for any offense. What was done was done by individual wrong, precisely as was done in Ex parte Scott, supra, and State v. Brewster, supra. The invasion of the sovereignty of Peru, if any wrong was done, was by individuals, perhaps some of them owing no allegiance to the United States, and not by the Federal government. Should the government of Peru complain its sovereignty had been invaded by citizens of the United States that would be a question arising under international law, and not under any act of Congress or treaty of the United States. Nor will defendant be permitted to complain that his right of asylum in Peru has been violated, for as before stated, he had no right of asylum as against the crime of larceny under the treaty with Peru, nor any absolute right to asylum under comity existing between Nations. Whether a Nation will surrender a fugitive from justice that seeks with it an asylum is a question of National comity resting in discretion.

In no view that can be taken is defendant entitled to immunity from prosecution on the indictment under which he was convicted. [Omitting minor matter.]

Judgment affirmed.

SPECIFIC PERFORMANCE- ORAL AGREEMENT TO CONVEY LAND SUBSTANTIAL IMPROVEMENTS.

MAINE SUPREME JUDICIAL COURT. JANUARY 26, 1885.

WOODBURY V. GARDNER

A father-in-law made an oral agreement with his son-in-law that if he would sell his farm and come and live with him on the homestead,carry on the farm and'ımaintain him and his wife while they lived, and furnish them with a horse and carriage for their own convenience, he would convey the farm to plaintiff

The plaintiff entered into possession upon faith of the agreement, made improvements, paid taxes, etc., thereby enhancing the value of the land. Subsequently some unpleasantness arose between the parties, and the father-inlaw refused to convey, although he continued to reside with and be supported by the plaintiff until his death. Held, that plaintiff was entitled to a specific performance of the agreement.

VIRGIN, J. Bill in equity to enforce specific performance of an alleged oral agreement for the conveyance of a farm, brought against the sole devisee of the vendor, and also against one claiming as assignee of a mortgage thereon. Among other defenses the statute of frauds is interposed.

When a party to an agreement, fair and just in its terms, understandingly entered into and concluded, is injured, without default on his own part, by its nonfulfillment of the other party, the most direct and satisfactory remedy which he instinctively seeks is specific performance. This practical result he cannot obtain by the common law, for that measures all losses by money; but equity comes in to supply the more complete justice, and has laid down certain rules of relief, which when its circumstances bring it within them, every contract susceptible of substantial enjoyment may be enforced.

In this State the early equity jurisdiction of the court was limited to a very few subjects. It was gradually from time to time extended to others, until 1874, when the Legislature conferred "full equity jurisdiction according to the usage and practice of courts of equity, in all other cases where there is not a plain, adequate and complete remedy at law." Stat. 1874, ch. 175. And notwithstanding the clause "in all other cases," the re-enactment of this statute in Rev. Stat. 1883, ch. 77, § 6, was not intended to be limited in effect by reason of its being accompanied by a re-enactment of the various restricted provisions of the former statutes. Glass v Hulbert, 102 Mass. 33; Somerby v. Buntin, 118 id. 287.

Until the Stat 1874, ch. 175, took effect, this court, on account of limited equity jurisdiction, could not decree specific performance of unwritten agreements for the conveyance of land under any circumstances. Stearns v. Hubbard, 8 Me. 320; Wilton v. Harwood, 23 id. 131; Bubier v. Bubier, 24 id. 42; Farnham v. Clements, 51 id.426. But now that the broad general power is conferred, jurisdiction extends to the enforcement of all oral agreements when the parties have not a "plain, adequate and complete remedy at law" and the circumstances are such as to bring them within the established rules of equity governing such matters.

As this is the first case of the kind which has come before this court since the enactment of the above statute, it may be excusable to remark that it has long been held in England that part performance of an unwritten contract to convey land may authorize a court of equity to compel specific performance by the other party in contradiction to the positive terms of the statute of frauds. Lester v. Foxcroft, Colle's P. C. 108. Bond v. Hopkins, 1 Sch.& Lef 433; Coles v. Pilkington, L. R., 19 Eq. 174; S. C., 11 Eng. Rep. 768. And the same doctrine has been adopted by all save three or four of the States of the Union. Pom. Eq. Jur., § 1409, some of them making it an express exception to the statute of frauds. Wat. Sp. Per., § 257

The ground of the remedy is an equitable estoppel based on an equitable fraud. After having induced or knowingly permitted another to perform in part an agreement on the faith of its full performance by both parties, and for which he could not well be compensated except by specific performance, the other shall not insist that the agrement is void. Morphett v. Jones, 1 Swanst. 181; Buckmaster v. Harrop, 7 Ves. 346; Potter v. Jacobs, 111 Mass. 32, 37. In other words the statute of frauds having been enacted for the purpose of preventing frauds should not be used fraudu

declarations of the principle, but as being an official act performed under the direction of the statute, but also as performed by the officer in pursuance of the stipulations contained in the bond whereby the sureties have assumed the liability of any neglect in the discharge of the duty. Goss v. Watlington, 7 E. C. L. Rep. 380; Whitnash v. George, 15 id. 295; Middleton v. Melton, 10 B. & C. 317. Although the fact of the death of the person making the entries appears in the cited cases, it was not conceived that this was a controlling circumstance, inasmuch as the principle upon which they were mainly determined was the obligations assumed by the sureties in their bond for a proper performance by the officer of the duty of making such entries. The competency of such evidence in an action against sureties, even during the life-time of the officer, as to the amount of funds in his hands, has been decided in this court. It was however also held that such proof was not conclusive of that fact, but was open to explanation and contradiction by the sureties. Bissell v. Saxton, 66 N. Y. 55. See also U. S. v. Boyd, 5 How. (U. S.) 29. A false report by the treasurer constitutes a violation of official duty and a breach of his bond, rendering the sureties liable to the parties injured for such damages as are the legitimate consequences of the wrongful act. It is therefore properly receivable in evidence in an action against the sureties for a breach, not only for the purpose of showing such breach, but also as reflecting upon and illustrating the object and motives of other official acts of the treasurer which are properly the subject of investigation. Supervisors of Tompkins v. Bristol. Opinion by Ruger, C. J.

[Decided June 9, 1885.]

TOWN BONDS-VALIDITY OF LIABILITY OF COMMISSIONERS.-Bonds issued by a town for the construction of a railroad under an act authorizing the same, upon consent being obtained of a majority of the tax payers, are void unless such consent has actually been given. The town is not however remediless in case the assessors, contrary to the fact, certify that the requisite consent has been obtained, or in case the commissioners, acting upon the certificate, issue the bonds. The proceedings may be reviewed on certiorari, People, ex rel. Yawger, v. Allen, 52 N. Y. 538; People, ex rel. Haines, v. Smith, 45 id. 772; the town may bring an equitable action to cancel the bonds and restrain their transfer, Town of Springport v. Teutonia Sav. Bank, 75 id. 397; S. C., 84 id. 403; or it may await the bringing of an action to enforce the bonds and defend on the ground of their invalidity. Starin v. Town of Genoa, 23 N. Y. 440, and Cagwin v. Town of Hancock, 84 id. 532. The general course of adjudication in this State up to 1873 was adverse to the right of a consenting tax payer afterward to revoke or withdraw his consent. In re Town of Greene, 38 How. 515; People, ex rel. Hoag, v. Peck, 4 Lans. 528; People, ex rel. Sayre, v. Franklin, 5 id. 129. The contrary rule was first declared in People, ex rel. Irwin, v. Sawyer, 52 N. Y. 296, decided in 1873. The claim that the defendants induced the assessors to make the affidavit, by the false representation that a majority had consented, was controverted on the trial. The affidavit was made before the defendants had been appointed commissioners, and if what took place at that time tended to show that their subsequent action as commissioners was not in good faith, it was a matter for the jury. The same is true in respect to the claim that the defendants knew that the affidavit was made without an actual comparison by the assessors of the consent with the assessment-roll, and if this was known to them, it would not establish that they knew the affidavit was false. We are of opinion that the plaintiff failed to maintain his action on the merits, and that the ver

dict was improperly directed. No action will lie on behalf of the town against the commissioners for damages sustained by the wrongful issuing of the bonds. The verified certificate of the assessors, made in conformity with the act, is a justification of and protection to the commissioners, acting in good faith in issuing the bonds. Town of Ontario v. Hill. Opinion by Andrews, J.

[Decided June 9, 1885.]

FORECLOSUREC-JUDGMENT LIEN- EQUITY OF REDEMPTION ASSIGNMENT.-A conveyance under the foreclosure of a mortgage is a complete bar to the lien of a judgment creditor acquired subsequent to the mortgage; and such judgment creditor, who is made a party to the foreclosure proceedings afterward, has no right in the equity of redemption. Spring v. Short, 90 N. Y. 538. If the sale had produced a surplus, a different question would have been presented, and the case cited by the learned counsel for the appellants, Fliess V. Buckley, 90 N. Y. 291, would be authority for upholding a lien upon it, provided one had previously existed upon the land. On the other hand, if the relators, as they claim, were not proper parties to the foreclosure, it was because the assignment had transferred the title from the debtor to his assignee before the recovery of their judgment. Spring v. Short, supra. The assignment created a trust for the benefit of creditors of the assignor and not only in terms, but by force of the statute, vested the whole estate in the assignee in law and in equity, subject only to the execution of the trust. 1 Rev. Stat., part 2, chap. 1, art. 2, §§ 55-60. The assignor however mighht have declared to whom the lands to which the trust related should belong in the event of its termination, and subject to its execution, he might have granted or devised it. Id., § 61. But no title or interest remained in him, and consequently there was nothing to which the lien of a judgment could attach. Briggs v. Palmer, 20 Barb. 392; Brigga v. Davis, 20 N. Y. 15; Leonardsville Bank v. Willard, 25 id. 574; Marvin v. Smith, 46 id. 571. It does not follow however that the assignor could not discharge the trusts by payment of the debts before sale of the assignee, or become entitled to the residue remaining unsold after the debts were discharged. Wintringham v. Lafoy, 7 Cow. 735; Briggs v. Davis, supra, and the contention seems to be, that there was therefore a reversionary interest in the assignor upon which the relator's judgment might attach. This however is going too far. The right which an assignor might exercise for these purposes is merely an equitable one, and in no sense impairs or diminishes the estate of the assignee, which remains perfect and exclusive until the purposes of the trust have in fact been accomplished. People, ex rel. Short, v. Bacon. Opinion by Danforth, J. [Decided June 9, 1885.]

NEGOTIABLE INSTRUMENT-PAST DUE NOTE-SURETIES-AGENCY-RATIFICATION.-The owner of a past due note payable to bearer, placed it in a bank for collection. The makers of the note were in fact sureties. The plaintiff, at the request of the principal debtor, paid the note to the bank and the bank remitted the proceeds thereof to the owner and delivered the note to the plaintiff. Held, that the plaintiff obtained a good title to the note and could maintain an action thereon against the sureties; that notwithstanding the bank had no authority to sell the note, yet the owner by receiving and retaining the money had ratified the act of his agent and he was bound by it. The cases cited by the respondent are not inconsistent with our view of the case. Some of them were founded upon statutes relating to corporations and making certain transfers void because illegal. Gillet