text:
    Sessions v. Trevitt.
    1. Where a husband purchased lands with money received by him from his wife, in pursuance of an agreement made between them before marriage that he would invest the same for her benefit, and took the title thereto in his own name, a trust in such lands resulted in favor of the wife, although the money was thus received before the taking effect of the act of April 3,1861, ‘‘concerning the rights and liabilities of married women.”
    3. Husband and wife are competent to testify concerning any communication made by one to the other, or an act done by one in the presence of the other, during coverture, if the communication was made, or the act done, in the known presence, or hearing, of a third person competent to be a witness, although such third person is not living at the time of the trial.

      In June, 1876, Francis C. Sessions, Orange Johnson and Joseph A. Jeffrey recovered a judgment against William Trevitt, on which judgment an execution was issued, and levied on certain lands situate in Williams county, Ohio, to which Trevitt then had the legal title. On the t§nth day of January, 1877, Trevitt made a general assignment of all his property, real and personal, for the benefit of his creditors, to Henry O. Taylor, who, on the twenty-third day of May, 1877, filed in the Court of Common Pleas of Franklin county, his petition for the sale of the real estate embraced in the assignment, including the Williams county lands.
    To this petition Mrs. Lucinda B. Trevitt, one of the defendants, filed her answer and cross petition, the object and prayer of which was to obtain a judgment declaring a trust in her favor in the Williams county lands, and directing that a conveyance thereof should be made to her. Her title to such relief is stated in the cross petition, as follows:
    “On'the 20th day of November, 1839, she was the owner of the sum of $1,700 in money and two notes dated June 1, 1839, each for $666.66 and interest from date, due respectively Jun'e 1st, 1840 and 1841, and afterwards and on the same day married the defendant, William Trevitt, and ever since has been, and now -is, his wife; that she placed said money and notes in the hands of her said husband upon the express agreement and trust that he would and should invest the same for her benefit; and afterwards, and on or or about the month of June, in the year 1840, in pursuance of said agreeañent and trust, he invested said money and the proceeds of said notes in the purchase, improvement and development of the lands and lots described in the petition, and other adjoining lands and lots, but took the title to himself; and afterwards, and on June 29, 1861, he acknowledged and declared said agreement and trust to this defendant in writing.”
    Francis C. Sessions, as executor of the last will of Orange Johnson, deceased, Francis O. Sessions, and Joseph A. Jeffrey, who were also defendants in the action, filed a general demurrer to Mrs. Trevitt’s answer and cross-petition, which was sustained as to the part which denied the jurisdiction of the court, and overruled as to the cause of action stated in the cross petition.
    They then filed answers denying the allegations of the cross petition, and insisting upon their right to have the ’Williams county lands sold, and the proceeds applied to the satisfaction of their judgment.
    The trial in the court of common pleas resulted in a judgment in favor of Mrs. Trevitt. On appeal to the district court the demurrer to the cross-petition was refiled, and was overruled.
    The cause was then submited to the court on the cross petition, answers, replies and .testimony; on consideration whereof the court found, “ Upon the issues so joined, in favor of the said Lucinda B. Trevitt, and against the other parties, and that the equity of the case is with her, and that the facts stated and allegations contained in her said cross-petition are true, and that the agreement therein alleged to have been made was made before the intermarriage between her and the said William Trevitt, and that said agreement was, after their intermarriage, reaffirmed and agreed to by them, and that the trust alleged in said cross petition was created, and that the said William Trevitt received the money and. promisory notes described in said cross-petition of Mrs. Trevitt, in pursuance of said agreement and trust, and not otherwise ; and that the said William Trevitt, pursuant to said agreement and trust, purchased and improved with said money, and the proceeds of said promisory notes,” the Williams county lands described in the petition — that he took the legal title in his own name, but in trust for Mrs. Trevitt — that she was entitled to a conveyance thereof, in fee simple, and to be quieted in her ownership against every claim and lien' alleged by the other parties to the action. The court rendered judgment, in accordance with this finding, in favor of Mrs. Trevitt, and the plaintiffs in error now ask leave to file a petition in error to reverse that judgment.

      Lorenzo English and <7. Wm. Baldwin, for the motion :
    ' I. The facts stated in the answer and cross-petition to have occurred at or soon after the marriage of William and Lucinda Trevitt did not create an implied, constructive or express trust in the husband for the wife.
    This marriage occurred a long time prior to the passage of any statute in Ohio changing the common-law rule, which is that where a lawful marriage has constituted the relation of husband and wife, the personal property of the wife becomes absolutely that of the husband, and her possession is his possession. Bishop on the Law of Married Women, 36, 37.
    When, therefore, the marriage took place between Mr. and Mi’S. Trevitt, the $1,700 in money became her husband’s, without any restrictions whatever; and the mere fact of her placing the same in his hands upon any agreement or trust that he should invest the same for her benefit could not and did not restrict that possession and ownership. Such agreement was without consideration, and was void.
    The case is far different from those where the money descends or is given to the wife after coverture.
    Aside from statutes changing the rule, a wife did not, and could not, have a “separate estate ” in moneys and chattels in. her possession at marriage. “ That expression ” (separate ■estate), says Loweee, J, in 12 Harris (Pa.) 431, always refers to an equitable estate held by somebody in trust for a married woman; and see Gliddin v. Taylor, 16 Ohio St. 517; 20 Ohio St. 62, 67; Ins. Co. v. Bay, 24 Comstock, 27; 1 Bishop, §801.
    As far, then, as relates to the $1,700 money invested in these lands, no trust arises by implication, constructive or express agreement (or ex malefició). Por an express trust this amount was no part of the consideration, and for implied or resulting trust this amount was not of the moneys or property mf the wife; and for a constructive or ex maleficio trust there was no fraud or tortious violation of rights connected with it. Miller v. Blackburn, 14 Ind. 62; Magee v. Toland, 8 Porter (Ala.) 36; McDaniel v. Whitman, 16 Ala. 343 ; Chambers v. Perry, 17 Ala. 726; Westervelt v. Gregg, 2 Kernan (N. Y.) 202; Buckanan v. Lee, 69 Ind. 117, 120; Waldron v. Sanders (Sup. Ct, of Ind.), Cincinnati Law Bulletin, Sept. 4, 1882 ; Roy v. McPherson, 11 Neb. 197; Ramsdall v. Craighill, 9 Ohio, 197; Hockett v. Bailey, 86 Ill. 74; Patton v. Gates, 67 Ill. 164; Wilson v. Loomis, 55 Ill. 352; Beson v. Eveland, 26 N. J. Eq. 468; 51 Mo. 443; Hatch v. Gray, 21 Iowa, 299.
    The promissory notes, by the marriage, became Mr. Trevitt’s, so that whether delivered to him or not, he had. the right to reduce them to his possession without his wife’s consent; and if he promised to invest the proceeds in any particular thing for her benefit, such promise was without consideration (which is always necessary to a trust), and if he did not keep his promise, but invested in his own name, he would have violated no legal or equitable right of his wife.
    These notes were not her separate estate either in law or equity, and when he collected the proceeds of the notes they were his absolutely. Nolen's Appeal, 11 Harris (Pa.) 37.
    The case of Newton v. Taylor, 32 Ohio St., does fiot apply, as claimed by Mrs. Trevitt’s counsel. That case turned upon the finding of the fact that the husband practiced fraud and deceit. See Brown on St. of Frauds, §§ 94, 95, 96 ;' Tiffany & Bullard on Trusts, 717.
    If, at the time of purchase of said lands, the moneys and notes were Mr. Trevitt’s, and there was no implied, resulting orconst ructive trust in Mrs. Trevitt’s favor then raised by the purchase, the alleged subsequent declaration of trust was nothing but a gift or voluntary settlement, and this court cannot now aid her. Hill on Trusts, 83, 84; Ellison v. Ellison, 6 Vesey, 149.
    II. As to the admissibility of evidence, we insist that the competency to be a witness of the third person referred to in section 5241, Rev. Stats., paragraph 3, must exist at the time of the trial, because of the intention of the legislature to provide a witness to disclosures made by husband and wife who could testify to the same upon a legal trial touching the matters therein involved, and to protect still the parties themselves, as will as others against whom they may have a common interest by reason of their marital acts, from misrepresentation as to the truth of the same.

      The “competency” or the “witness” would be of small .value if limited to the date of the occurrence or disclosure.
    Harrison, Olds & Marsh, George B. OTcey, and Taylor & Taylor, contra:
    T. It was competent for Dr. Trevitt to waive, or to surrender to Mrs. Trevitt, his marital rights to the money and promisory notes described in her cross-petition, and to agree with her to receive, and to actually receive the same, as her agent or trustee, for the purpose of investing such money and notes in real estate for her benefit.
    II. Dr. Trevitt having waived and surrendered his marital rights to the money and notes, he received the same from her, not under or by virtue of his marital rights, but as her agent or trustee, under his positive promise to invest the same in real estate for her benefit. He thus assumed a trust by which, in equity, the money and notes remained the property of Mrs. Trevitt, although they passed into his actual possession ; and when he invested the same in real estate according to his promise, the trust was fastened upon the land.
    These propositions -are abundantly sustained by authority. Huston v. Cone, 24 Ohio St. 11; Huber v. Huber, 10 Ohio, 371; Wood v. Warden, 20 Ohio, 518; Moyer’s Appeal, 77 Pa. St. 486 ; Albee v. Cole, 39 Vt. 319; Bent v. Bent, 44 Vt. 555; Child v. Pearl, 43 Vt. 224; 5 Wharton, 137; 4 Rawle, 478; 1 Watts, 255; 6 W. & S. 290; 1 Barr, 329; 2 Barr, 71; 37 N. H. 134; 46 N. H. 130; 47 N. H. 407; 50 N. H. 479; 8 Barb. 190; Newton v. Taylor, 32 Ohio St. 399.
    Dr. Trevitt having -expressly waived and surrendered his marital rights as to the money and promissory notes, they were the separate property -of Mrs. Tuevitt; and as to it, she was in the position of a feme sole.
    . By the term separate -estate, is meant that property which ■ belongs to a .married woman, and over ¡which her husband has ,no right in.equity. 2 Bouvier’s Inst- 272. It always refers .to an equitable -estate held by somebody in trust for a married woman. Per Lowry, J., in 2 Harris, 431.

      Not only under ante nuptial agreements will she be able to hold separate property, but also under a contract during the matrimonial connection, made between him and her alone, and sucli contract will be enforced as if made with a stranger; whether the separate estate be derived from the husband himself or from a stranger, he will in either case be treated as a trustee. 2 Bou. Inst. 271, and cases there cited.
    The Ohio cases before cited recognize the above proposition and the doctrine thus stated by Bouvier.
    Where a husband buys land with his wife’s separate property, or with the savings of her separate estate, a trust results to the wife. And the right of the wife to her separate property as against the husband, his heirs and creditors, is universally recognized and enforced. Hill on Trustees, 148; Methodist Church v. Jaques, 1 Johns. Ch. 450; Barron v. Barron, 21 Vt. 376; Brooks v. Dent, 1 John. (Md.) Ch. 523; Dickinson v. Codwise, 1 Sandf. Ch. 214; Darkin v. Darkin, 23 L. J. Ch. 890; Pritchard v. Wallace, 4 Sneed, 405; Resor v. Resor, 9 Ind. 317; Miller v. Blackburn, 14 Ind. 62; Lathrop v. Gilbert, 2 Stock. 311; Fillman v. Divers, 31 Pa. St. 429; Kline's Appeal, 39 Pa. St. 463; Robinson v. Robinson, 44 Ala. 227; Tifford v. Torry, 53 Ala. 120; Leach v. Leach, 10 Ves. 517; McGovern v. Knox, 21 Ohio St. 517; House v. Harden, 52 Miss. 860; Tracey v. Kelley, 52 Ind. 535; Savage v. O'Neil, 44 N. Y. 298; Tennison v. Tennison, 46 Mo. 77. See, also, Woodford v. Stephens, 51 Mo. 113; Thomas v. Chicago, 55 Ill. 403; Fillman v. Divers, 31 Penn. St. 429 ; Pritchard v. Wallace, 1 Sneed (Tenn.) 105; Hacker v. Gentry, 3 Met. (Ky.) 163.
    As to admissibility of evidence, see Greenleaf on Ev. § 254; Schouler on H. & W. 85; White v. Parry, 14 W. Va. 80; Duval v. Davey, 32 Ohio St. 601; Bean v. Green, 33 Ohio St. 447; Sieving v. Seidelmeyer, 4 Bull. 213.
    It is claimed that the competency of the third person whose presence is necessary to relieve the communication of its confidential character, relates to the time of trial. But it is clear, we submit, that such competency relates only to jthé time of the communication. Based upon reasons of public policy, the law prevents the betrayal, by either husband or wife, of a trust or confidence reposed by one in the other m privacy. And the confidential nature of the communication is conclusively presumed when it is made in the absence of a competent witness. The confidential nature of the communication is a matter of the intention of the parties, to be ascertained from the circumstances. They may remove the privilege by speaking in public.

      “ The construction sought to be placed upon the law by the plaintiffs in error would remove the shield of privilege if an infant were present who at the time of the trial was a competent witness. Such, evidently, is not its intent and spirit.”
   Upson, J.

The first ground upon which the plaintiffs rely, in support of their motion, is that the facts set forth in the cross-petition of Mrs. Trevitt are not sufficient in law to maintain her action thereon against them, and that the district court therefore erred in overruling their demurrer. They insist that by virtue of the marriage the money which had previously belonged to the wife, and the proceeds of the promissory notes owned by her, became the absolnte property of the husband, and that any agreement made by him with her to invest the same for her benefit, was without consideration and void; and that the facts stated in the cross-petition created no implied, constructive or express trust in favor of the wife.

It is true that in 1839, when Trevitt received the money, and promissory notes from his wife, the rules of the common law with respect to the rights of a husband to the personal property and choses in action of his wife had not been materially changed in this state, and we do not question the authority of most of the cases cited by plaintiffs’ counsel; but the right given by the law was one which the husband could waive or surrender, even by agreement made after marriage.

In this case it is found by the district court that by agreement between the parties- before marriage, reaffirmed and agreed to after marriage, the money was to be invested for the benefit of the wife, and that the money and promissory notes were received and the real estate purchased in pursuance of the agreement.

"We are of opinion that under these circumstances the money, and the proceeds of the promissory notes, did not become the property of the husband, but-did become the separate property of the wife, and that when the real estate was purchased and the title conveyed to him he held it in trust for his wife, and that this trust is valid not only against the husband but also against his creditors, no facts having been found by the court which estop her from asserting her title as against them.

The next question presented for oiir consideration relates to the construction of section 5211 of the Revised Statutes. It is claimed that the district conrt erred in admitting the testimony of the husband and wife concerning conversations with each other during coverture, in the known presence of a third person competent at the time of such conversations to be a witnesss, but who had died before the trial.

In behalf of the plaintiffs it is argued that the presence of a third person competent to be a witness is required because of the intention of the legislature to provide a witness to such disclosures who could testify to the same upon a legal trial touching the matters therein involved, and to protect still the parties themselves, as well as others against whom they may have a common interest by reason of their marital acts, from misrepresentation as to the truth of the same.” It is obvious, however, that this purpose could be quite as well effected by allowing such testimony, if the communications were made in the hearing of a third person, even if his presence were not known to the parties until afterwards.

Communications between husband and wife are not excluded on the ground of their common interest, or for the protection of those against whom they may testify, but because public policy requires that they shall not be allowed to betray the trust and confidence which are essential to the happiness of the married state. 1 Greenleaf Evid. § 254.

The reason for the exclusion ceases when the husband and wife conclusively show, by making the communication in the known presence of a third person competent to be a witness, that it is not of a confidential nature, and that its disclosure can not violate any trust or confidence. We think the testimony was properly admitted.

■ It is claimed that the district court erred in other rulings, in regard to which we deem it only necessary to say that we find no error in those rulings.

Motion overruled.

Okey, J., having been of counsel, did not sit in this case.


source: Caselaw Access Project

author: Okey, J.

license: Public Domain

text:
    The State v. Schlatterbeck.
    Infants committed to a house of refuge and correction, under Eev. Stats. § 2050, for “incorrigible conduct,” are not committed “for offenses against a law of the state,” within the meaning of Eev.’ Stats. § 2071 ; and hence they must be supported as provided in Eev. Stats. § 2072, and not by the county.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Cuyahoga county.
    In 1881 an alternative writ of mandamus was issued from the court of common pleas of Cuyahoga county, on the relation of Rice and others, constituting the board of directors of the house of refuge and corrections, Cleveland, against Schlatterbeck and others, constituting the board of county commissioners of Cuyahoga county, and Bauder, auditor of the county. By the writ the commissioners were commanded to direct the county auditor to issue a warrant or warrants upon the treasurer of the county, in favor of the relators, for the sum, named in the petition for the mandamus, that is, $1,571.80 and $1,548. 20, and the auditor was commanded to draw such warrant or warrants accordingly, or that the commissioners and auditors show cause why they refuse to do so. The sums mentioned were the amounts claimed to be due from the county to the re- ] a tors “for boarding prisoners committed to the house of refuge and correction, state cases from police and probate courts, for the quarters ending December 31, 1880, and March 31, 1881.” The house of refuge and correction was established and organized under the municipal code of 1869, §§ 219-270, Rev. Stats. §§ 2031-2082. Fully one-half of the persons so committed, and for whose maintenance compensation is thus sought, were infants committed for “incorrigible conduct” alone; and this is true of both accounts. On issue joined it appeared that the commissioners offered to allow and pay the accounts if the directors would strike therefrom the amounts claimed for maintenance of infants committed for “ incorrigible conduct ” alone ; but the directors refused to strike out such portion of the accounts.
    The Revised Statutes provide as follows:
    “Sec. 2050. The Board may, at its discretion, receive into such institution infants under the age of sixteen years committed to their custody in either of the following modes, to wit.
    “ 1. Infants committed by the mayor of the corporation, or any judge or justice of the peace of the county, on complaint and due proof by the parent, guardian or next friend of such infant, that by reason of incorrigible or vicious conduct such infant has rendered his control beyond the power of such parent, guardian or next friend, and made it manifestly requisite that from regard to the future welfare of such infant and for the protection of society he should be placed under the guardianship of the board of directors of such house of correction.
    “ 2. Infants committed by the authorities aforesaid, where complaint and due proof have been made that such infant is a proper subject for the guardianship of the directors of such institution, in consequence of vagrancy, or of incorrigible or vicious conduct, and that from the moral depravity of the parent, guardian or next friend, in whose custody such infant may be, or other cause, such parent, guardian or next friend is incapable or unwilling to exercise the proper care and discipline over such incorigible or vicious infant.”
    “ Sec. 2071. The expense of maintaining infants committed to a house of refuge and correction by a court or magistrate of the county in which such institution is situated, or by the police, or other court of the corporation, for offenses against a law of the state, or for trial, or as a witness, shall be paid by the county; and the expense of infants committed by township trustees shall be paid by the township, and of those committed by parents and guardians shall be paid by them, except in cases when the board otherwise determine; all which expense shall be ascertained and fixed by the board.”
    “ Sec. 2072. The expense of maintaining and administering the affairs of houses of refuge and correction, above the receipts thereof, shall bo audited and paid, from time to time, by the council of the corporation; and a tax for such expense shall be levied and collected as a part of the ordinary expenses of the corporation.”
    The court of common pleas refused to award a peremptory writ and dismissed the petition, the district court affirmed the judgment, and this motion is filed for leave to file a petition in error to reverse as well such order of dismissal as also the judgment of affirmance.

      Kam, Sherwood ds Bunts, for plaintiff in error.

      Stone & Hadden, for defendants in error.
   Okey, J.

The question presented is whether infants committed to the house of refuge and correction, Cleveland, under Rev. Stats. § 3050, subdivisions 1 and 2, for “ incorrigible conduct,” are committed “for offenses against a law of the state,” as those words are employed in Rev. Stats. § 2071. And we are clear in the ojfinion that they are not. An offense against a law of the state is an act punishable as a crime under a statute.

In Ex parte Christmas, 10 West L. Jour. 541, there is an elaborate opinion to show that a prosecution by peace warrant, which is a proceeding to prevent the commission of crime, was, by a liberal construction of the act relating to the jurisdiction of the probate- court, embraced by the words “ crimes, offenses or misdemeanors;” but this court, on well settled principles, held otherwise. The State v. Brazier, 37 Ohio St. 78. It is not allowable to interpret that which has no need of interpretation ; and that rule should always be applied where, as here, the language of the statute is plain, its provisions in harmony, and the enforcement of the act, according to its terms, will not lead to absurd results. Hathamay’s Will, 4 Ohio St. 383; Scott v. Hickox, Lawler v. Burt, 7 Ohio St. 88, 340; Harbeck v. Toledo, 11 Ohio St. 219; Calkins v. The State, 14 Ohio St. 222.

If, as claimed, the statute operates unjustly on the city of Cleveland and others in like condition, the legisture should amend it.

Motion overruled.


text:
    Cleveland v. Jewett.
    Fines and costs received by the directors of the work-house at Cleveland, from persons convicted of misdemeanors, under the statutes, in prosecutions in the name of the state in the courts of Cuyahoga County, and committed to such work-house for non-payment of fines and costs, must, under Rev. Stats. § 0802, be paid into the county treasury ; and where such fines and costs have been paid into the city treasury, the city, on refusing to pay the same into the county treasury, is liable to an action therefor by the county commissioners.
    Motion for leave to file a petition in error to réverse the judgment of the District Court of Cuyahoga county. ■
    The city of. Cleveland has a work-house, constructed, organized and maintained under the municipal code of 1869, §§ 271-282, Rev. Stats. §§ 2095-2107. During the years 1879, 1880, and 1881, divers persons were convicted, in the courts of Cuyahoga county, for misdemeanors punishable by statute, prosecuted in the name of the state, and committed to the work-house for non-payment of fines and costs. Many of the persons so committed paid their fines and costs to the directors of the work house, and were thereupon discharged. The sums tlms received in money during that period amounted to $6,333.34, and the directors paid the same into the city treasury. The city refusing to pay over this sum into the county treasury, the county commissioners of Cuyahoga county brought suit in the court of common pleas of that county, against the city, and in 1882 recovered judgment against it for $6,485.32, which judgment was affirmed in the district court, and the city now moves for leave to file in this court a petition in error to reverse as well the judgment of common pleas as the judgment of reversal.

      ■Kain, Sherwood de Bunts, for plaintiff in error.

      Stone c& Hadden, for defendants in error.
   Okey, J.

No error was committed in the courts below. A person thus committed to a work-house may, at any time, pay the amount or balance of his fine and costs in money, and obtain a release; and by a fair construction of the statute, the directors, or the clerk of the court assessing the fine and costs, may receive the money; but there is no authority to pay the money into the city treasury; it must be paid into the county treasury. Rev. Stats. §§ 617, 1751, 2104, 6802. The principle stated in the preceding case of State v. Schlatterbeck applies; and it is proper to say in this case, as was said in that, that if the statute operates unjustly on the city of Cleveland and others in like condition, as is claimed, the legislature should amend it.

Motion overruled.


author: Johnson, C. J.

text:
    The State v. Vanderpool.
    1. A person extradited under the provisions of the treaty of 1842, between the United States and Great Britain, can not be detained in custody and prosecuted for a different crime than the one specified in the warrant of extradition.
    2. The provisions of this treaty are part of the law of the land, enforceable by the judicial tribunals of this state, in behalf of a person so detained and prosecuted.
    Motion for leave to file a bill of exceptions to the judgment of the Court of Common Pleas of Belmont county.
    The defendants, Gilbert Yanderpool and Edward E. Jones, were indicted in the court of common pleas of Belmont county for forgery committed in 1880. Upon being arraigned they pleaded specially, that prior to the finding of the indictment they were residents and citizens of Canada, and had been extradited therefrom to the state of Ohio, on an extradition warrant specifying that they were charged in Butler county with the within offense, within the provisions of the treaty of 1812, 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' excepted to this decision, and now asks leave under the provisions of section 7306 of the Revised Statutes to file a bill of exceptions to review the same

      B. A. Hollingsworth, Attorney-General, and A. II. Mitchell., Prosecuting Attorney, for the state,
    i O. H. Blackburn, for the defendant, cited:

      Spear on Extradition, 65 ; 3 Bishop’s Or. L. (7th ed.) 34, § 2956; Field’s International Code, § 237; 10 Am. L. Rev. 617; ¥m. Beach Lawrence in 14 Albany L. J. 96; Frederick W. Gibbs on Extradition Treaties, published in London, 1868; Window case, Foreign Relations of the United States for 1876, p pages 286-296; Wharton’s Or. P!. & Pr. (8th od.) §49; Smith Haloes’ case, 13 Bush (Ky.) 700 ; Compton, Ault & Co. v. Wilder, 40 Ohio St. 130.
   Johnson, C. J.

The demurrer to the plea presents the question, whether the facts stated exempted the aepused 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 under 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 also 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 10th Article of the Ashburton Treaty it was “agreed that the United States and her Brittanic Majesty shall, upon mutual requisitions by them or their ministers or authorities respectively 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 seek an asylum, or be found within the territories of the other: Provided, that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person 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 judges 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 obligations to sui’render 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 Brittain 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 in the treaty of 1842 it was expressly limited to seven well defined crimes. Hence it was, also, that the right to demand a surrender in the specific cases named was so carefully guarded. The accused was protected in his asylum, unless the, authorities there should find him guiltly of one of the crimes specified in the treaty.

< By the terms of the treaty, the judge or other 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 fugitives from justice found within 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 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 United States v. Caldwell, 8 Blatchf. 131, and United States 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, Adriance v. Lugrave, 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 questions from the terms of the treaty itself, guided by the well established rules for the construction of such instruments.

By section 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 bowrld thereby, anything in. the constitution and laws 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 governments. 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 CaMweWs case, and Lawrences 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.

When, as in the present case, the surrender is to one of the states of the United 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 right 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 governments.

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 courts to take cognizance of his plea. Foster v. Neilson, 2 Pet. 253; Commonwealth v. Hawes, 13 Bush, 700; Winslow's case, 10 Am. Law Rev. 617; United States v. Watts, 8 Sawyer, 370, 14 Fed. Rep. 130; North Am. Rev., May, 1883, page 497.

II. As to the right of the 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 ease 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 a 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 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 n on-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 guarantied to liim 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 Gongress of 1841, United States Rev. Stats., section 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 sucli foreign government, to he tried for the crime of which such person shall he so accused.”

Again, by section 5275, “Whenever any person is delivered by a foreign government and brought into the United States and 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 force 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 this 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 persuasive 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 infringment 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 1867, 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 fugitive, 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 question at issue, and that the refusal by the United States to make the stipulation 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, that claim is 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 international law, it follows that the courts can hear .-and determine such right when it is invaded.

Much more .might be said in support of our conclusions, but we content ourselves with a reference to the following decisions and -discussions on the subject: Commonwealth v. Hawes, 13 Bush, 697; United States v. Watts, 14 Fed. Rep. 130; Letter of Wm. Leach Lawrence on “Extradition,” 19 Albany Law J. 339.; North Am. Rev., May, 1883, page 197, title “ Extradition; ” Wliart. Orim. Plead. & Prae. §§ 38-57, and cases noted; Blanford v. State, 10 Texas, 627; Matter of Cannon, 47 Mich. 481; Spear on Extradition, cli. 4, pp. 65-74; 10 Am. Law Rev. 617; Compton, Ault & Co. v. Wilder, 40 Ohio St. 130.

Leme refused.