I'EDERAL REPORTER.
vol. 41.
In re BARUCH. D.NtIW York. January" 1890.) I1ft'JmN<\TIONALExTBADITION-DISClUBGB OJ' !'nISONBR-ARRBS'l' IN OTIIBR I'ROCBBDINGB. ' ',',' ,
Up0n a warrant issued by of this court, the prisoner was brou/1ht New JeI'lley, for examination in a proceedmg ihe.-e by the marshal from the to extradite him to Austria, l'1pO'n a Oh&rge of embezzlement of public funds. The charge not being sustained; "the: commissioner discharged the prlllonc8r, and the latter, upon leaving the commissiouer'll'OPm, w.as arrested, bythll ,llherlft upon an order of arrest in a civil suit in, the I,tatecourt to recover the same funds. Both proceedings :werE! promoted and prolleouted bytbe same agents and attorneys. Held, decided in the cas9 of U. S. v. tbattl1!l case fell within thegener,"aJ, BeCher, 11j1 U. S. 407,7 Bup. Ct. ReP. 2M, aIla that of In T6 Reinitz. 89 Fed. Rep. 204, aU,d, tha,t, th(l prisoner WBS:ett., "e,d," ,to mmunity from, arres,t, until, tbe lapse of a , , reas,Qnable ti1Xle to return to N.,ew Je1'l!81, wbence he bad beenbrougbt, and one day was alloWed for that purpOSll. Held, .('wrther, that in to prevent conflicts of jurisdiction,it,iW&s eoinpetlmt {or the oommissionerto direct the marwhence he had been and that he be shal,to,take tl;1e prisoner to thereupon discbarged. ' . i,
Habeas CoryUBand B. LoMy, for petitioner.' Solomon, Dulan Jc Suflro,' fOfopposing creditor. BROWN',J·. On September 21, 1889, the prisoner was arrested in the state of New Jersey by a depUty of the United States'marshal of this city, upon,'R warrant issued 'by a cbmmissioner of this C0Urt, upon the petitiOIt of the Austro-Hungarian consul, for the purpose of procuring the extI'adition of the prisoner:from this country to Austria, under the treaty the two governments, upon & charge of embezzlement of the public funds of the Austro-Hungarian empire. The prisoner was brought to'tbis state, and, durin$lthe pendency of the 'extradition proceedings.before'the commissioner, he was imprisoned in"Ludlow-Street jaiL' ,OJ;l of SepteOlber' following, it appearing that the charge of could not besijstalned; tbe extradition proceedings were discontinuep, ,and the prisoll!'lr discharged by the Upon 'going QutoUhe door of the,QorD:rnissio,ner's room, he was sheriif..of copl1tyof New York, an or4er of imestissued a9Iv¥ SUIt,In the supreme court of thIS state, brought on behalf of Baruch, the brother, on account of the alleged conversion of the same fund's' Which the extradition proceedings alleged to have been embezzled. The civil suit was also prosecuted through the Austrian consul, as the agent of Daniel Baruch. The same attorneys acted in both proceedings, and the papers for the arrest of the prisoner in the civil suit were prepared during the few days prior to the discontinuance of the extradition proceedings. The prisoner is now brought before this court upon habeas corpus and certior.ari, and his discharge is asked on the ground that his arrest in a civil suit was made before the lapse of any opportunity to return to New Jersey, whence he had been brought on the warrant in the extradition proceedings. The case is in some respects different from that of In re Reinitz, 39 Fed. Rep. 204, r&
D BE BABUCH.
cently decided by this court. There, the prisoner, having been .extr3dited to this country, and on trial acquitted, was immediately arrested in an action of debt, but 'was discharged on habeas cOrpus, and given a reasonable time to,.return to Ireland, from whence he came. The principles declared by the supreme court in the case of U. S. v. Rauscher, 119 U. S. 407, 7 Sup. Ct. Rep. 234, which adjudged a subsequent immediate arrest for crime illegal, were there held equally applicable toa subsequent arrest ina civil suit for debt. In the present case the prissoner was not delivered to this country by a foreign government, but was apprehended and held in custody by this government, for the purpose of being delivered to Austria, in accordance with the treaty stipulations, provided, upon the preliminary hearing, a prima facie case should 'be established. Though some of the arguments and considerations that support the decisions in the cases above cited do not apply to the present case, the fundamental principle whioh was laid down as the basis of the decision ira the Rauscher Ca8e seems to me to be equally applicable here. That principle is that the proceeding under the treaty is for a limited and defined purpose only, and lhat the exercise of jurisdiction over the prisoner for any other purpose than that mentioned in the treaty,until he has an opportunity to return, is a fraud upon the rights of the party dited, and bad faith to the country which permitted the extradition. 119 U. S.422,7 Sup. Ct. Rep. 242. Upon this general principle, in the very recent 0z8e ofHqpe, who had been brought from California upon the requisition of the govemor of this state, upon interstate extradition proceedings, and who, after conviction, and after serving out his tence, was again immediately arrested upon a requisition of the governor of Delaware to the governor of this state for trial for an-offense committed in Delaware, the prisoner was discharged upon habeas corpus before WHEELER,J." in·this court; and Gov. Hill, after argument, upon the same ground refused the warrant for removal, until after the lapse of a reasonable time for the accused to return to California, whence he had been brought to this state. 40 Alb. Law J.441. The present case, as it seems to me, eannot be distinguished or excepted from this general principle. If the extradition proceeding and the presence and custody of the prisoner here are for the single-named purpose only; .and if the exerciseof any other.jurisdiction over him, before he has' a reasonable time to return, is a perversion oithe treaty and the law, and a fraud upon the rights of the accused,-it is manifestly immaterial at what stage of or in what place in the course of those prothe extradition ()CCdil1gs, such a perversion or interference with the rights of the prisoner takes place. The same principles must apply to the whole proceedings, -the same in the earlier stages as in the final. Here the prisoner was brought from another state before a commissioner of this court upon an extradition proceeding, and for the purposes of a preliminary trial only. On this preliminary trial he was discharged. Any interference with the 1 No
opillion filed.
rtght'ofreturn"witbin,9i reasonable .time, ,to, prisonet' bad been ;tlikenlll\rider the Jederal authority I , is as much .amal. tlppropriationof.theoexfradiiion proceeding,,; and a perversion of its pU,l" pose, as if the arrest were after a discharge under final trial. The case is not,il1deed', withintbeletter of section. 5275, Rev. St. U. $., since that se<ltionappliesonly to by ,foreign to this oountry;but that seotion ,does give sttttutorysanction in that class of cases to the 'general principle niade.applicable by the .supreme court to extradition proceedings in general;, and,:8.s above stated, the same general' principle is applied' to of interstate. extradition, although tbere; is no .sta.tutory provision c01Tering this point. As the prisoner was there'fore;brought· here involuntarily: from ·New Jersey by force ofthe .federal law, under treaty provisions, and for no other purpose than an tuninatiol1 treaty and tHe fedElrallaw, COInmon justice demands that he be treated as und,er' protectionofthat same federal law until the lapse ·of a reasonable time for his. return, after his discharge. During this his ·enforcellpresence under a federal law for treaty purposes. and:for this special purpose .on1y, is a presence which no other persons have a right to take ad'vailtaige of; nor, under the law.and the treaty thM wrongfully:foroed him. here, should he be.allowed to. suffer disadvantage, until, byv(lluntarily remairlil1g, pe waives the privilege and protection to w:hieh he has .opportunity to return. The court wbieh: granted the oNhe arrest might,. perhaps, p.roperly enough refUSe to vacate such au',orderjfor,after the lapse of a reasonable, timel if the defendant were found .here, he might be rightfully arrested. under iti"but :until time to return: is allowed, the execution of such anorder of anest,is premature;,,".; ':;','j,:'" . i" Anr 'uncertai,niyJin theapplicatioD of this rule, as well as questions juriSdictionfwduldbe ,avoided if theco,mmission.crin such ca._, instead'ofdirecting'i1D immediate from custodypahould him, to: return the prisoner;to the jurisdiotionwhence:'hewas :brought, andihat the prisoner! be thereupon i,' '.· ' · , " ; i . . . . J " . i . ' "
l.:The prisoner'!will,ooordinglybe!;diilcharged from the 011810dy of :the sherift'; but, in'Glrder:tMt he 'also may take no advantage. of his presence bere, the brder.entere<i'ltl8.1 direct, if the opposing creditor desires,. :that the prisonerj upon his, disowrge by the'sheriff, be taken. by the marshal uPQl1 the same day, to the: 8tate of Ne"Jarsey; otherwise, the. ;prisoner; whendisohMgedbythe.sheriff,wilLbe allowed the remainder oHhe day 8S''A reasonable time for ilrla' return ,to' New Jersey_ '. -J : '. · ", .: : I ' : J: .
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'71
(Oircuit Oourt, E. D. Pennsylroania. January 19, 1890.)
. ,i',
-w,
,', .oO{1tract.
Where alicense contains I1l? power of the assent, of the lieens,ee, but
FOR INVBNTIONS-INl"RINGEMENT-LlCENSB-RBVOOATION.
De.nsmore.
82
;Fea.Rep. IS44,
alice,nSofCal:lnot annul the Ul:(lllM e,datJaw for, any f the PWriJtir 00. v. Wolf, " " 0,
Bill in equity by R. F. M. Chase against Lewis S. Cox, trading as . Said bill alleged a Lewis S. Cox & Co., for infringement of' license between the parties, terminated by default ,of licensee. Defendant filed a plea denying assent to the termination of the license,and"denying the termination thereof, or that defendant had ceased to pay royalty" sndtoconform to the ,provisions of the license whereb.y the license was qetlll'lliined.There was in the license no direct reservation oftha right to revoke the same. The plaintiff,hadgiven defendant notice "of his intent to revoke. W.: P. P1'et>k, Jr., for complainants,' cited Starlingv. Plow- Works, 32 Fed. Rep'. 290. JOB. Jilraiey, for respondents, cited Derurmure v. Tanite 00., 32, Fed. Rep. 544; :Purifier 00; v. Wolf, 28 Fed. Rep. BUTLER, J., (after stating the facts a8 above.) In answer to the infringement charged the defendant pleads a license. The plaintiff admits the execution ofa license,butaaserts its annulment by mutual agreement, prior to the acts complained <If. This assertion presents the only material question raised. We do not find it supported by the proofs. ' On the averments of the bill show quite plainly that the plaintiff su:pposed he had a right to terminate the license by notice, (for &1legedcnoiHJompliance with its termsiby the defendant,) and that he relied upon ·this alone for reli&(fromits provisions. This case is governed by Pwrifler 00. v. Wolf,28 Fed·.Rep. 814, and DeMfMr6 v. Tanite 00.,32 Fed: Rep. 544. A suit at law upon the license will afford the plaintiff ad-eql1ate irem.edy for any just claim which he may have. A decree must therefore beentered sustaining the plea and dismissing. the bill with costs. . 1 Reported
by O. B. TayIor,Esq., of the Philadelphia bar.
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