author: Mr. Chief Justice Scholfield

text:
    Julius Lancey v. Robert T. Brock.

      Filed at Mt. Vernon September 27, 1884.

    1. Possession—of part, under color of title of whole tract. The visible and exclusive appropriation and use of a part of a tract of land, claiming the whole under color of title, is in law an actual possession of the entire tract, except so far as there may be adverse possession.
    2. This rule only applies, however, where the deed purports to convey the whole. The possession does not extend beyond the color of title, and hence where a deed only purports to convey a particular interest in land, it is not evidence of possession beyond that interest.

      3. Where it is impossible to say what interest, if any, passes by a deed, the grantee or holder can not make it available to extend his possession of a part of the premises over the whole.
    4. Same—to show title to land. Where possession alone is relied on as evidence of title to a tract of land, it must be an actual, not a merely constructive, possession. Possession per se is evidence only of the mere fact of present occupancy by right, and the facts and collateral circumstances may be looked to as affording evidence whether or not the possessor claimed a fee. Abandoning possession, ceasing to pay any taxes, and allowing others to enter and occupy, will repel any presumption of a claim of title in fee, and raise a presumption that the claim pf the former occupant was less than' a fee, and had terminated.
    5. Conveyance—sufficiency of description. A deed described the land as “sixty-seven acres, part of claim 1096, survey 117.” Survey 117 contained one hundred and thirty-four and a fraction acres: Held, that the description was fatally defective, it failing to describe definitely any specific tract; held, also, that it could not convey an undivided half of survey 117, for the reason that an undivided half of the north-west half of the undivided half of a tract of land describes nothing tangible, either in quantity or interest.
    Appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Mr. Chas. W. Thomas, and Mr. Frank B. Bowman, for the appellant:
    Mere actual possession of land is not sufficient evidence of title. It must be accompanied by claim of title in fee to sustain a recovery.
    The deed from Piggott to plaintiff does not show claim of title. It does not purport to convey or even describe the land in controversy.
    Survey 117 is six miles long and one arpent wide, and runs north-west from the bluff. It contains one hundred and thirty-four acres. This is divided equally into the northwest half and the south-east half, each containing sixty-seven acres. The deed' purports to convey, not survey 117, nor the north-west half thereof, nor any part of the north-west half of the survey, but an interest in the north-west half of a certain part of that survey, to-wit, of that part thereof of which one St. John died seized, etc.

      Plaintiff’s alleged actual possession by Porter in 1855, for one year, stands unconnected with any claim of title in fee. The record also shows that ever since 1860 Piggott was in actual possession of a part of the north-west half of the survey, claiming the whole half. under a tax deed. Bowman & Griswold succeeded with continuous, actual and exclusive occupation.
    Messrs. G. & G. A. Koerner, for the appellee:
    We do not claim to show a paper title in this case, and do not care about the recitals in Piggott’s deed. He did convey the half of the north-west half of survey 117, to the plaintiff. This deed of itself is prima facie evidence of title, or is at least color of title, under which to take and hold possession.
    Plaintiff’s prior possession of a portion of the premises under color and claim of title, in the absence of any evidence to the contrary, is sufficient proof of title in fee.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

This was ejectment by appellee, against appellant. The land sued for is described in the declaration as being “the undivided one-fourth of that part of survey 117, in the common fields of Cahokia, which is bounded north-west by Tenth street, in the city of Bast St. Louis, north-east by the tract known as the ‘Ames tract,’ south-east by that part of said survey now occupied by Charles Gain, and south-west by survey 116 of said common fields. ” Appellee claimed title in fee simple. Upon the trial appellee read in evidence, to maintain the issue on his part, a deed dated December 13, 1854, whereby Isaac N. Piggott remised, released and forever quitclaimed to him, “one equal and undivided half of the right, title and interest which was of John L. St. John, at the time of his decease, to the north-west half of a certain piece of land in claim No. 1096, and survey No. 117, in the common field lots of Cahokia, in the county of St. Clair, and which, by deed of William S. Thomas, administrator of the said John L. St. John, deceased, made the 29th day of January, 1848, and duly recorded in said county of St. Clair, was conveyed to said Isaac N. Piggott, containing sixty-seven acres, more or less. ” Appellee then also introduced evidence tending to show that Piggott was in possession of a part of the north-west half of survey 117 at the time he made this deed, claiming the whole, and that he himself took possession of it under this deed, and exercised acts of ownership over a part of the north-west half of survey 117; but, as we understand the evidence, it does not show an actual possessio pedes of the land sued for by Piggott, at the time he executed the deed to appellee, nor by appellee since.

It is familiar doctrine that the visible and exclusive appropriation and use of a part of a tract of land, claiming the whole under color of title, is, in law, an actual possession of the entire tract, except so far as there may be adverse possession. (Keith et al. v. Keith, 104 Ill. 402, and authorities there cited.) But this only applies where the deed purports to convey the whole. The possession does not extend beyond the color of title, and therefore where a deed only purports to convey an interest in land, it can be evidence of no possession beyond that interest, because it is to that extent only that such deed is color of title. (Busch v. Huston, 75 Ill. 343; Bride v. Watt, 23 id. 507.) The rule is thus stated in Sedgwick & Wait on Trial of Titles to Land, sec. 768: “So, also, the extent of the adverse constructive possession will be limited to the amount described or defined, by whatever constitutes the claimant’s color of title. There can be no adverse possession, whether actual or. constructive, where there has been no definite claim to it. The deed, or whatever writing constitutes the color of title, must at least purport to include the land claimed, upon the general principle that a deed can not operate as color of title so as to have effect beyond the estate which it professes to pass.” And this is sustained by McRae v. Williams, 7 Jones’ Law, (N. C.) 430; McEvoy v. Lloyd, 31 Wis. 142; Crary v. Goodman, 22 N. Y. 170.

It is impossible, here, to say the deed from Piggott to appellee conveyed any interest in the land sued for, without knowing what was the “interest which was of John L. St. John, at the time of his decease, to the north-west half of a certain piece of land in claim No. 1096, and survey No. 117, in the common field lots of Cahokia, in the county of St. Clair, ” etc. If that interest was a definite tract in that body, described by metes and bounds, then the undivided half of the northwest half of such tract was conveyed by Piggott to appellee; and if, instead of being a definite tract, it was an undivided interest,—some aliquot part of the whole amount,—as, an undivided one-half, one-eighth, or one-sixteenth, then it was the undivided half of the north-west half ,of that undivided interest only that was assumed to be conveyed by Piggott to appellee. But the court can not take judicial notice of what is the fact in this respect, and appellee seems not to have deemed it necessary to introduce any evidence throwing light upon the subject. Appellant, however, did introduce evidence showing what was St. John’s interest in said survey 117. By that evidence it is shown that the deed of William S. Thomas, administrator, to Isaac N. Piggott, executed on the 9th of January, 1848, referred to in the deed from Piggott to appellee, purported to convey “part claim 1096, survey 117, containing sixty-seven acres.” It is also shown by that evidence that St. John, in his lifetime, had two deeds to land in survey 117,—one by William C. Kinney, assignee in bankruptcy of Narcisse Pensoneau, dated April 20, 1843, purporting to convey “sixty-seven acres, part of claim 1096, survey 117;” the other a tax deed, dated January 9, 1845, purporting to convey to John L. St. John “sixty acres east side of claim 1096, survey 117.” Evidence of á¡ negative character was also given, to the effect that John Tj. St. John had no other claim to land in survey 117, and that Nareisse Pensoneau, at the time he was adjudicated a bankrupt, had no interest in any land in survey 117.

It was agreed by the parties, upon the trial, to be considered as in evidence, that United States survey 117 contains one hundred and thirty-four and a fraction acres; that it is a strip one arpent wide and six miles long, extending from the bluff, north, forty-three degrees west, to Cahokia creek, and is claim 1096 of the Cahokia common fields.

It is manifest that it is impossible to sustain the judgment below by referring St. John’s interest to his tax deed; and, in our opinion, the deed from Kinney, assignee, to him, must be equally unavailing. Sixty-seven acres, in a larger tract of one hundred and thirty-four and a fraction acres, describes definitely no specific tract. It may as well be in the southeast half, or equi-distant from the middle, or in any other part of the survey, as in the north-west half. But if it may be said the deed should'be held as conveying an undivided interest in the proportion as sixty-seven acres bear to the number of acres in the whole tract,—thus, or one-half,—it is equally ineffective, for the undivided half of the north-west half of the undivided half of a tract of land describes nothing tangible, either in quantity or interest. If there were anything in the evidence to confine St. John’s interest to the north-west half of the survey, it would be different; but there is not. We must either regard it as sixty-seven acres unlocated in any part of the tract, or an aliquot part of the whole tract, and that conveyed to appellee is the undivided half of the north-west half of that tract, or aliquot part.

If, however, the deed be disregarded, and possession alone be relied upon, we think the evidence insufficient. When possession alone is relied upon as evidence of title to a tract of land, it must be an actual, not a constructive, possession. Webb v. Sturtevant, 1 Scam. 181; Illinois Mutual Fire Ins. Co. v. Manufacturing Co. 1 Gilm. 266; McClellan v. Kellogg, 17 Ill. 498; Turney v. Chamberlain, 15 id. 271.

The evidence on behalf of appellee is not sufficiently clear and satisfactory that there was an actual prior, exclusive possession of this identical property in appellee, and there is evidence directly to the contrary. Appellee testifies, generally, that he leased to a man by the name of Porter, in 1855, and he made some improvements on the land; but he adds : “I do not know whether Porter cultivated any of the land, but he cut timber, and perhaps put some in cultivation. ” This is very uncertain, and may have amounted to no more than acts of trespass. It is not pretended that the improvements extended over the land in controversy, and he fails to show on what part timber was cut, or how frequently, or in what quantity. He says he made a pasture on the land himself, and he adds: “I think the pasture was, possibly, a part of it, on the land in suit here. ” Clearly, this is not sufficient proof of actual possession.

But apart from this view, rejecting the deed as evidence of title to this land, it does not appear how appellee rightfully got possession, or that he at the time actually claimed to be the owner in fee. In Ricard v. Williams, 7 Wheat. 105, the court, per Mr. Justice Story, delivering its opinion, said: “Undoubtedly, if a person be found in possession of land claiming it as his own in fee, it is prima facie evidence of his ownership and seizin of the inheritance. But it is not the possession alone, but the possession accompanied with the claim of the fee, that gives this effect, by construction of law, to the acts of the party. Possession, per se, evidences no more than the mere fact of present occupation by right,— for the law will not presume a wrong,—and that possession is just as consistent with a present interest, or a lease for years or for life, as in fee. • From the very nature of the case, therefore, it must depend upon the collateral circumstances what is the quality and extent of the interest claimed by the party, and to that extent, and that only, will the presumption of law go in his favor; and the declarations of the party while in possession, equally with his acts, must be good evidence for this purpose. ” To like effect, see, also, Bedell v. Shaw, 59 N. Y. 50; Doe v. West, 1 Blackf. (2d ed.) 134; 1 Smith’s Leading Cases, (7th Am. ed.) 661; Sedgwick & Wait on Trial of Titles to Land, sec. 718. Of course, if there be no evidence of the declarations of the party in the prior peaceable possession of lands, nor of collateral circumstances, nor otherwise, tending to show that such possession is not that of a claimant in fee, the presumption, as against a subsequent wrong-doer, is, that he claims in fee. 3 Phillips on Evidence, (Hill, Cowen & Edwards’ notes,) 595; Burt v. Penjand, 99 U. S. 180.

But the collateral circumstances here in evidence do not seem to prove that appellee must have claimed a fee. The instances of dominion claimed to have been exercised by him over the property are, in substance, only those to which we have alluded, and, so far as we have been able to learn the dates from the record, his renting to Porter was in 1855, and his pasturing a part of the land (if his pasture, in fact, included any of it,) was in 1861. He does not claim to have been in the actual possession of the land, as we understand the evidence, after 1861, nor does he show that his possession was terminated wrongfully. There is, on the other hand, evidence in the record, uncontradicted, that on and prior to the 16th day of January, 1865, Piggott was in the peaceable possession of the premises, claiming as owner under a tax deed, and on the last named day contracted to sell them to Bowman & Griswold, and thereupon put them in peaceable possession. There is no proof of any payment of taxes by appellee at any time, and there is proof of continued possession and payment of taxes since January 16, 1865, by and under Bowman & Griswold. This seems to repel, effectually, any presumption of a claim of title in fee in appellee, and to raise the presumption that whatever title he may have had was less than a fee, and terminated prior to the contract of purchase of Bowman & Griswold.

The rulings below were not in harmony with the views here presented, and the judgment must, therefore, be reversed, and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Dickey

license: Public Domain

text:
    Ellis Kaufman v. Edgar Loomis.

      Filed at Ottawa May 19, 1884.

    1. Pledge—sale under pledge—of the title—surplus funds. The owner of securities conveyed them, by a deed of assignment, in the nature of a deed of trust, to be held by the trustee as security for the payment of certain notes upon which the grantor was liable, and it was therein provided that if the grantor should fail to meet the payments on his notes the trustee might sell the securities so pledged, at either public or private sale, and such sale was made to two of the persons for whose protection the pledge was made: Meld, the purchasers at the trustee’s sale either acquired thereby the absolute ownership of the securities, freed from all trusts, to do with as they chose, or the sale vested the ownership in the purchasers as joint trustees, to be converted into money at their best price, to first pay off their own liability,—and any surplus funds, after paying.off all debts with which the trust was charged, would in equity belong to the grantor.
    2. Gtjabanty—release—failure to avail of proceeds of collaterals which are lost. A & B were indebted to a bank upon a note of $3000, and they were at the same time liable to the bank upon a note of $3500, given by them to 0 for his accommodation, and also upon another note for $1000, upon all of which D was liable as guarantor, and A & B owed the bank $2420 upon their own note, on which D was not liable. A & B and C desired an extension of the time of payment. To procure such time, C transferred to F, by a deed, certain securities, to secure, first, D, for carrying the $3500 note and guaranteeing the $3000 and $1000 notes; and second, to secure to the bank the payment of the $2420, and the surplus to 0, or his assigns. The trustee sold the securities to D and the bank for $1500, after which an offer was made to the bank and D of $11,000 for the securities, but the bank refused to sell at that price, and demanded $15,000, shortly after which the securities were rendered worthless by a decision of the Supreme Court: Held, that the bank, by refusing to sell the securities, having acted honestly in trying to get a better price, did not release the liability of D as guarantor of the $3000 note.
    3. In a suit upon the guaranty of the payment of a note owned by a bank, the fact that the bank held, before the suit, an assignment through a trustee of a patent right, and some claims for damages for an alleged infringement of the patent, and was offered more for such patent and claims than enough to have paid the note, such assignment having been made by the principal debtor, and the patent and claims afterwards prove valueless from an adverse ruling of the courts, will not operate to discharge the guarantor, although he may have urged the bank to accept the offer for the patent. It was the duty of the bank, as a trustee, to obtain the largest sum that could be realized, and the making of a mistake, while acting in good faith, will not subject the bank to a loss.
    Appeal from the Appellate Court for the First District;—■ heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    The evidence for the defence tends to show that on March 14, 1878, Loomis was liable as guarantor for the accommodation of Babcock & Ten Broeke, for $3000, and upon an accommodation note made by him for the accommodation of S. D. Cozzens, for $3500, and as accommodation guarantor for another debt of Babcock, guaranteed by Ten Broeke, of $1000,—in all amounting to about $7500. The $3000 note belonged to the International Bank, and Babcock & Ten Broeke owed the bank about $2420 upon their own note, with which Loomis had no connection. Neither Babcock & Ten Broeke nor Cozzens were prepared to pay their respective debts, and wanted the payment extended for six months. Loomis required, before he would consent to the extension, that the accrued interest should be all paid, and this was done. Lœwenthal was the president and general manager of and for the bank, and he refused to consent to the extension of payment unless some additional security were given on the $2420 note. Cozzens claimed to own a patent, or an interest in a patent, called “Tanner’s car-brake patent,” and to have a demand against certain railroad companies for violation of his rights in the use of the Tanner car-brake. Ten Broeke also claimed some equity in the patent, and perhaps in the claim against these railroad companies, and Cozzens held releases of these respective railroad companies, signed by James D. Mowry, trustee, and approved by Cozzens, from all liability for making and using the Tanner brake, ready to be delivered upon the payment of damages by such companies, respectively, such as might be agreed upon. It was accordingly arranged, by consent of all parties concerned, that the payment of the several debts should be extended six months, and Cozzens should deliver to Mr. Bisbee (who was the attorney of Loomis) the releases mentioned, and also make to Bisbee an assignment of all interest and claim against these railroad companies, for the use of the Tanner car-brake, in trust,—first, to secure Loomis for carrying the $3500 debt, and for guaranteeing, upon renewal, the $3000 note, and for guaranteeing the $1000 note; and second, to secure the International Bank the payment of the $2420 note. This was done, and the fact was recited in a deed of Cozzens, under seal, in which he authorized Bisbee, in default of payment of any or all of the above debts, to sell the assignment made by Cozzens to Bisbee, and also the releases, at public or private sale, without notice, and to apply the proceeds of the sale to the payment of the costs of making said sale and all reasonable attorney’s fees to which said Bisbee may be entitled for doing the business in this behalf, and also to the payment of the $3500 debt, and to the payment of the $3000 note guaranteed by said Loomis, and to the payment of the'$1000 debt; and after the payment in full of such indebtedness, then the' balance of the proceeds to be applied to the payment of the $2420 note, and the surplus, if any, to be returned to Cozzens, or his assignees.

      The evidence also tends to show that all this indebtedness remaining unpaid after the lapse of six months, at the request of Loomis and Lœwenthal, Mr. Bisbee advertised these releases and the assignment for sale, Loomis and Lcewenthal paying for the advertisement, and at a public vendue the same were struck off to the bank and Loomis at the price of $1500. No money was paid to Bisbee in consummation of this. Neither the assignment of the jjatent right and claim, nor the releases, were ever delivered to either the bank or to Loomis, under this sale, but the same remained in the hands of Bisbee. The evidence also tends to prove that before the bidding at the sale it was agreed between Lcewenthal, for the bank, and Loomis, that if the same were bought by them, out of the avails the notes for which Loomis was bound should be first paid, and then the $2420 note owned by the bank should be paid. Evidence was also given that Loomis had promised Ten Broeke that the surplus should go to Ten Broeke or Cozzens, or to both, but no evidence that the bank was a party to this promise, or that Lcewenthal or any officer of the bank had any information about this promise by Loomis to Ten Broeke. The evidence also tended to prove that the questions whether this patent was valid or not, and whether the railroad companies had infringed the same, (on which the validity of the claim of Cozzens against the railroad companies depended,) had been, -and still were, in litigation. The Circuit Court of the United States, in a test suit, had held the patent valid, and ruled that the brake used by the railroad companies was an infringement, and that judgment was before the Supreme Court of the United States for review, and the case had been argued before the Supreme Court, but was not yet decided, and it was generally thought the judgment of the Circuit Court would be affirmed. The evidence also tended to prove that in this state of affairs the representatives of the railroad companies approached Bisbee, for the purpose of buying the releases in his hands, and offered to pay for the same the sum of $11,000. This offer was communicated by Bisbee to Loomis, and he consented that the offer be accepted. Bisbee urged it should be accepted, and that both Bisbee and Loomis notified Lcewenthal of the offer, and asked him to consent that the offer be accepted, but that Loewenthal refused to consent to accept $11,000, but told Bisbee to offer to sell at $15,000, and that for the reason that Lcewenthal refused to consent to a sale for $11,000 the negotiation failed. The evidence also tends to show that soon afterwards the decision of the Supreme Court of the United States was rendered, holding, in one case, that the patent was void, and in another that the brake used by the railroad companies was not an infringement, and that by reason of these decisions the securities put into the hands of Bisbee by Cozzens became valueless.
    This is an action brought by Kaufman, against Loomis, upon his guaranty upon the $3000 note given by Babcock & Ten Broeke to the International Bank, which had been assigned to Kaufman by the bank merely for collection. The bank and Loomis are the real parties in interest.
    After the above evidence was given for the defence, the court was asked by the plaintiff to give the jury the following among other instructions, which the court refused to give,— that is:
    “No. 1. The jury are instructed, as a matter of law, that the pretended patent right here brought in question, and the amount at one time offered by the Illinois Central Railroad Company and the Chicago, Burlington and Quincy Railroad Company, constitute no defence in this case, and you will entirely disregard all the evidence pertaining to same. ”
    And plaintiff excepted to the ruling in refusing this instruction.
    The court, at the request of the defendant, gave to the jury the following instruction:

      “No. 2. If the jury believe, from the evidence, that the securities in question were bid in by Lcewenthal and Loomis, at the sale by Bisbee, on the understanding and agreement between them that the proceeds of said securities should be applied to the same uses as was provided in the trust deed to Bisbee, and that afterwards said securities could have been sold for $ll,000,-^-that is to say, if the Burlington and Quincy and Illinois Central railroad companies offered that sum in the aggregate for the releases in evidence,—and that Bisbee approved of and desired such sale, and that a sum could thereby have been realized which would, in pursuance of the terms of said agreement, have paid the note sued on in this case and the other notes mentioned in the trust deed to Bisbee, and that Loomis wished said sale to be made and said note paid, and that Lcewenthal knew the facts aforesaid, and that $11,000 could be realized as above, and still refused to let said securities be sold, and prevented a sale of the same, and that such sale would have been made and said note paid but for such refusal of said Lcewenthal, and that said securities, shortly after such refusal of Loswenthal, became valueless, then the jury are instructed that the facts aforesaid, if proven, operated to release said Loomis from all obligations as guarantor of said note. ”
    —To the giving of which instruction the plaintiff, by his counsel, excepted.'
    Verdict and judgment were given for defendant, and this judgment, on appeal, was affirmed in the Appellate Court, and plaintiff appeals to this court.
    Messrs. Rosenthal & Pence, for the appellant :
    The trustee’s sale in October, 1878, to Loomis and Lcewenthal passed no title. No money was paid, and the trustee executed no assignment, but retained all the papers as before. Loomis testifies that the collaterals were still held for the same purposes. Bisbee still remained trustee, and could not be permitted to violate his trust. The pledge remaining in Bisbee’s hands as security for alb the notes, in the same way, after as before the pretended sale, he had the power to sell and dispose of the same, and could not be controlled by one of his beneficiaries. He represented both the pledger and pledgees. The bank can not be held responsible for his neglect or lack of judgment.
    The pledger having the general property in the pledge, might have sold it, and compelled its restoration upon paying the money to redeem; but not offering to redeem, the bank can not be charged with any depreciation or loss. Rozet v. McClellan, 48 Ill. 345; Granite Bank v. Richardson, 7 Metc. 407; Robinson v. Hurley, 11 Iowa, 410; Smouse v. Bail, 1 Grant’s Cases, 398; Ward v. Morgan, 5 Sneed, 79; Story on Bailments, sec. 315.
    There is no evidence that Cozzens, or Bisbee, or Loomis, or Lcewenthal, had any title to this pretended patent right claim.
    Messrs. Dent & Black, for the appellee :
    Lcewenthal, by preventing the sale of the releases, and causing their loss, discharged Loomis from all liability on account of the guaranty in question.
    Sureties and guarantors are favored, and the courts will lay hold of any act that favors them. Ludlow v. Simons, 2 Caines’ Cases, 56; Law v. East India Co. 4 Ves. 824; Kingsbury v. Westfall, 61 N. Y. 356; Stull v. Hance, 62 Ill. 55.
    If a creditor has a surety for a debt, and also a lien on any kind of property belonging to the principal as a security for the same debt, and he relinquishes the property, the surety is released to the extent of the value of the property so lost. Willis v. Davis, 3 Minn. 17; Cummings v. Little, 45 Maine, 183; Loop v. Summers, 3 Rand. 511; New Hampshire Savings Bank v. Concord, 15 N. H. 119; Armor v. Ames, 4 La. Ann. 172; Wharton v. Donnan, 83 Pa. St. 40; Ives v. Bank of Lansing, 12 Mich. 361; Bonney v. Bonney, 29 Iowa, 448;
      Hurd v. Spencer, 40 Vt. 581; Foss v. Chicago, 34 Ill. 488; American Bank v. Baker, 4 Metc. 164; Holland v. Johnson, 51 Ind. 346; McMullen v. Winkle, 39 Miss. 142; Mayhew v. Crickett, 2 Swanst. 185; Dixon v. Ewing, 3 Ham. 281; Springer v. Toothaker, 43 Maine, 381; State Bank v. Edwards, 20 Ala. 512; Sneed v. White, 3 J. J. Marsh. 525.
    Among many other cases which hold the surety discharged by the creditor causing or suffering the release of a levy on the property of the principal to the injury of the surety, the following may be referred to: Houston v. Hurley, 2 Del. Ch. 247; Morley v. Dickinson, 12 Cal. 561; Spencer v. Thompson, 6 Irish C. L. 537; Comstock v. Creon, 1 Rob. 528; Alexander v. Bank of Commonwealth, 7 J. J. Marsh. 580; Winston v. Yeargin, 50 Ala. 340; Bank v. Fordyce, 9 Pa. St. 275; Shannon v. McMullin, 25 Gratt. 211; Finley v. King, 1 Head, 123; Melles v. Green, 5 Grant’s Ch. 655; Parker v. Nations, 33 Texas, 210; Davis v. Mikell, 1 Freem. Ch. 655; Lumsden v. Leonard, 55 Ga. 374; Quick v. Black, 2 C. E. Green, 189; Robeson v. Roberts, 20 Ind. 155.
    A surety is discharged when the creditor accepts as collateral security for a debt the obligation of a third person, and through his negligence in failing to enforce the obligation it is lost. Kemmerer v. Wilson, 31 Pa. St. 110; Pickens v. Yearborough’s Admr. 26 Ala. 417; Noland v. Clark, 10 B. Mon. 239; Jennison v. Parker, 7 Mich. 355; Sellers v. Jones, 22 Pa. St. 423; Hill v. Bourcier, 29 La. Ann. 841; Lamberton v. Windom, 18 Minn. 506; Douglas v. Reynolds, 7 Pet. 113; Lee v. Baldwin, 10 Ga. 218; Shippen’s Admr. v. Clapp, 36 Pa. St. 89; Wakeman v. Gowdy, 10 Bosw. 208.
   Mr. Justice Dickey

delivered the opinion of the Court:

We think the Superior Court of the county of Cook erred in refusing instruction No. 1, asked by appellant, and in giving instruction No. 2, asked by the appellee, and for that cause the Appellate Court erred in affirming the judgment.

There is some discussion as to the legal effect of the supposed sale of these securities by Bisbee to the bank, and to Loomis. Without determining what effect is to be attributed to the proceedings connected with that supposed sale, it is clear that either the sale was entirely inoperative, and produced no change in the status of these securities; or the sale passed the absolute ownership of these securities to «the bank and Loomis, as joint owners, freed from "all trusts, to^be used by the purchasers for their own profit, without reference to the debts and liabilities for which Bisbee had before that held them, the purchasers taking the same rights which strangers purchasing would have taken had they bid and paid the $1500, and received a written transfer of the same to them from Bisbee; or the sale vested such ownership in the bank and Loomis jointly, as trustees, to realize the most that might be had for such securities by these trustees, by the exercise of reasonable judgment, care and diligence to that end, for the benefit, first, of Loomis, in relieving him from his liabilities as guarantor, or otherwise, in relation to the three debts for which he was personally bound; second, for the benefit of the bank, in procuring the payment of the $2420 note, for which Loomis was not personally liable; and third, for the benefit of whomsoever might be entitled to the surplus, if any; and the proofs tend to show that in such case this surplus, if any had been realized, would have belonged, in equity, one-half to the bank, and one-half to Cozzens and Ten Broeke, or one of them.

On the first hypothesis these securities remained, after the sale, vested in Bisbee, as trustee, with full power of sale, and no consent of the bank or of Lcewenthal was at all necessary to the sale if Bisbee thought best to sell to the railroad companies, and neither Lcewenthal nor the bank was under any obligations or duty to assume any responsibility in the matter, and neither was bound to give consent, even if good judgment required the sale to be made to the railroad companies on the terms offered.

On the second hypothesis, the bank, being an absolute joint owner with Loomis, had the absolute right to refuse to sell its interest, or to sell the same, as it might choose, and the other joint owner had no rights which could lawfully limit the exercise of that choice.

On the third and last hypothesis, the bank and Loomis being joint trustees, and Loomis being one of the beneficiaries, he had a right to demand of the bank fidelity in the exercise of the trust, and so had Cozzens and TenBroeke, who were interested with the bank in the surplus which might remain after relieving Loomis from his personal liability on the first three debts, and after paying the $2420 note held by the bank. The proof tends to show that when the offer of $11,000 was made for these securities it was generally thought that the decision of the Supreme Court of the United States would declare the validity of the same, and there is not one word of proof tending to show that Lcewenthal, at the time when he refused to give the consent of the bank to the proposed sale for $11,000, had not good reason to believe, or did not believe, that a larger amount could and ought to be realized from the sale. If, in good faith, as a trustee, he exercised his honest judgment in so refusing, and acted, as he supposed, for the best interests of all concerned,—unless that judgment was grossly erroneous, with the lights he had,—he surely can not be charged with wronging any one by acting upon his judgment. The mere fact that it turned out after-wards that he was mistaken, does not charge him with a wrong done to any one.

We think the proofs do not tend to support the exact hypothesis assumed in the second instruction given at request of appellee. That hypothesis varies from the third hypothesis, supra, in this only, that it would give the entire surplus to Cozzens, after fulfilling the supposed trusts. But even if the proofs tended to support that hypothesis, the reasoning, supra, as to the third hypothesis applies thereto with more cogency. Upon the hypothesis stated in the instruction, had the decision of the Supreme Court affirmed the validity of the patent, and of Cozzens’ claim against the railroad companies, and had Lcewenthal consented to the sale for $11,000, Cozzens, who also was a mere surety, might, for aught shown in these proofs, have justly complained that his securities had been wantonly and foolishly sacrificed, and in such ease the bank might (if a trustee be a guarantor of his own wisdom,) have well been called to an account by Cozzens for consenting to a sale of these securities for $11,000.

The judgment of the Appellate Court is therefore reversed, and the cause remanded, that the judgment of the Superior Court may be reversed, and a new trial had.

Judgment reversed.


author: Mr. Justice Scott

text:
    Frederick M. Ker v. The People of the State of Illinois.

      Filed at Ottawa May 19, 1884.

    1. Criminal law—plea to jurisdiction—■illegal arrest in foreign country. To an indictment for embezzlement and larceny the defendant pleaded to the jurisdiction of the court, in sftbstance, that the President of the United States, upon the written request of the Governor of this State, issued an extradition warrant to the government of Peru for the surrender of the defendant, under the treaty with that government, to be brought back to this country on a charge of larceny; that on the same day this warrant was issued, the Secretary of State made a written request upon the United States consul acting at Lima, to procure the executive of Peru to surrender the defendant to one Julian, under said treaty; that no request was ever made by said consul, or by Julian, or by any other person, upon any of the authorities of the government of Peru for the surrender of defendant, nor was any consent of authority given by any of the authorities or agents of Peru, to Julian or to any other person, to arrest and remove defendant from Peru; and that on April 3, 1883, while the defendant was domiciled at Lima, in Peru, Julian, with the aid of persons whose names were unknown, without any authority or warrant from the authorities or diplomatic agents of Peru, arrested the defendant, and forced him to go to Callao, and there placed him on board a vessel and carried him to Honolulu, and at that port transferred him to another vessel which carried him to San Francisco, California, where he was arrested on a requisition from the Governor of this State, and brought to this State for trial. The court below sustained a demurrer to this plea: Held, that the demurrer was properly sustained.
    2. Same—on requisition, regularity of arrest not open to question. Where a person charged with crime in this State was arrested in a sister State and brought here for trial, on a requisition of the Governor of this State, it was held, that our courts, on the trial of such fugitive, would not inquire into the regularity of his arrest and surrender in such sister State, and that it did not matter if he had been illegally arrested in a foreign country and brought forcibly to such sister State.
    3. Same—fugitive from justice—legality of arrest not a question for the courts. Where legal steps have been taken for the apprehension and return to this country of a fugitive from justice, and he is brought back to the United States, where he is arrested on a requisition of the Executive of this State and brought here for trial, the fact that he may have been illegally arrested in such foreign country and brought to the United States, does not deprive the courts of this State of jurisdiction to try him for any offence charged against him, the State not being a party to such illegal arrest and abduction.
    4. Same—legality of arrest of a fugitive from justice in a foreign country not necessary to give court jurisdiction. The rule at common law is, that the court trying a party for crime committed within its jurisdiction, will not investigate the manner of his capture in a foreign State or country, though his capture and return may have been plainly without authority of law.
    5. Same—right of asylum to fugitive from justice. A fugitive from justice has no asylum in a foreign country when he is guilty of an offence for which he is liable or subject to extradition, by treaty between this and the foreign government. If he is illegally and forcibly removed from such foreign country, that country alone has cause of complaint, and he can not complain for it.
    6. Same—extradition of fugitives depends on treaty. Where no treatv exists between two governments for the extradition of criminals fleeing from justice, there is no obligation existing that can be insisted upon to surrender them for trial to the government from which they have fled; but as a matter of comity between friendly nations, great offenders are usually surrendered on request of the government claiming the right to punish them.

      7. Same—fugitive, when extradited, must be tried only for the crimes named in treaty. Where a fugitive from justice has been brought back to the country from which he has fled, on a warrant of extradition in conformity with the terms of a treaty existing between two governments, he can not be proceeded against or tried for any other offences than those mentioned in the treaty, and for which he was extradited, without first being afforded an opportunity of returning. But this doctrine has no application where the fugitive has been brought back forcibly, and not under the terms of the treaty, of under an extradition warrant.
    8. Same—variance as to ownership of securities embezzled. An indictment for embezzlement and larceny charged the money, funds and securities embezzled and stolen, as the goods and personal property of A, B and C, partners under the name of A, B & Co. The proof showed that before the alleged offence the firm was composed of A, B, C and D, doing business under the same name, the latter being a special partner, and that the articles of partnership were a matter of record; but that before the alleged offence, D retired from the firm, although the dissolution of the firm of the four was not made a matter of record, and notice given, as required by law: Held, that there was no variance, as, after D retired, the property in fact belonged only to A, B and C.
    9. Same—embezzlement—compelling an election as to a single act. On an indictment for embezzlement and larceny of moneys, funds and securities, there is no error in the court refusing to compel the prosecution to elect upon what alleged act of embezzlement or larceny a conviction will be asked, as embezzlement may, and most often does, consist of many acts done in a series of years by virtue of the confidential relations existing between the employer and employe.
    10. Same—indictment for embezzlement—evidence of various acts. The statute (section 82 of the Criminal Code) makes it sufficient for an indictment for embezzlement to allege, generally, an embezzlement, fraudulent conversion, or taking with intent to convert to the defendant’s own use, the money, funds or securities of the employer to a certain amount or value, without specifying any particulars of such embezzlement, and on the trial, evidence may be given of any such embezzlement, fraudulent conversion, or taking with such intent; and it is made sufficient to maintain the indictment, that any bullion, money, note, bank note, check, draft, bill of exchange or other security for money of the employer, of whatever value or amount, was fraudulently converted or taken with such intent by the clerk or employe. In such ease it is proper to allow proof of any and all acts of embezzlement to go to the jury.
    11. Same—nevi trial—question of fact and of law. Ordinarily, whether there is evidence to warrant a conviction in a criminal case is a question for the jury, the court taking care always to see that no manifest injustice has been done; but whether the verdict is contrary to the law, is a question for the court.

      12. Same—when verdict is against the law. A verdict in a criminal case is against the law when, admitting all the evidence tends to prove, it does not show the crime charged.
    13. Same—indictment good, in language of the statute. An indictment for embezzlement substantially in the language of the statute is sufficient.
    14. Same—statute defining embezzlement, construed. The word “care,” as used in section 75 of the Criminal Code, relating to embezzlement, is the equivalent of “custody,” and may mean “charge,” “safe keeping,” “preservation, ” or “security.” The word “possession,” as used in the same section, has, perhaps, a different and broader meaning than the word “care;” but it may also mean, “to keep,” “to take or seize hold,” “to hold or occupy,” as the owner of property would or might do. And it matters little whether one or both words are used in an indictment.
    15. Same—what is possession of goods by an employe, belonging to employer. A bank clerk having access to the funds and securities of the bank in its vaults, and trusted with their keeping for various purposes, may be said to have their possession by virtue of his employment, within the meaning of section 75 of the Criminal Code.
    16. Same—embezzlement—larceny at common law. The fact that the felonious taking of moneys and securities out of a bank vault by a bank clerk, and converting them to his own use, may be larceny at common law, makes it no less embezzlement under the statute. It is entirely competent for the legislature to declare what acts shall constitute the crime of embezzlement, and fix the punishment.
    Writ of Error to the Criminal Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. Robert Hervey, and Mr. C. Stuart Beattie, for the appellant :
    Leaving the - question of the treaty out of consideration, the prisoner could not set up the manner in which he was brought within the jurisdiction of the court, as a reason why he should not be held in custody to answer to the indictment. Ex parte Scott, 9 Barn. & Cress. 446; The State v. Brewster, 7 Vt. 118; The State v. Smith, 1 Bailey, (S. C.) 283; Dow’s case, 18 Pa. St. 37; The State v. Ross & Mann, 21 Iowa, 467; The People v. Rowe, 4 Park. Cr. 253; Lagrave’s case, 14 Abb. (N. S.) 343; 9 Wharton on Crim. Pl. & Prac. 27.

      Treaties of the United States are the law of the land, and bind the judges in every State. U. S. Const. art. 6, sec. 2.
    A person extradited can be tried only for the extradited offence. Adriance v. Lagrave, 59 N. Y. 110; United States v. Caldwell, 8 Blatchf. C. C. 131; Blandford v. The State, 10 Texas Ct. of App. 635.
    We contend that the prisoner could not be taken from Peru in any other mode than under the treaty, and consequently the court acquired no jurisdiction, and that the act of Congress of 1867 protected the prisoner from being captured in violation of a treaty. Cooley’s Const. Lim. p. 16, notes, and p. 21, note 1; The People v. Curtis, 50 N. Y. 321; The People v. Brady, 56 id. 182; In re White, 49 Cal. 434; In re Cannon, 47 Mich. 981; Commonwealth v. Hawes, 13 Bush, 697; Jones v. Leonard, 50 Iowa, 106.
    Also, that there was a variance between the allegation and proof as to the ownership of the property. Hogg v. The State, 3 Blackf. 326; 2 Greenleaf on Evidence, sec. 22; Rev. Stat. chap. 84, sec. 12.
    The court should have required the prosecution to elect for what act out of the many they would seek a conviction. Kribs v. The People, 82 Ill. 425.
    Only one crime can be charged in an indictment, except for a few statutory misdemeanors, although the pleader may allege the offence in as many ways as he desires, provided he pleads them all as felonies or all as misdemeanors. Lyons v. The People, 68 Ill. 275; Beasley v. The People, 89 id. 578.
    Although section 82 of the Criminal Code has declared that a certain class of embezzlements may be pleaded generally, that has not changed the rule of evidence. Goodhue v. The People, 94 Ill. 37.
    It is necessary to support the verdict that the evidence should show that the stolen property had been delivered to Ker as a bailment, under section 74, or that he had gotten it before the conversion, by virtue of his employment, under the 75th section. The proof shows clearly that Ker only had access to the money and bonds of the bank,—not even charge, say nothing of possession.
    The verdict can not be sustained for two reasons : First, the offences are not in the words of the statute; and second, because being larceny under section 167, and at common law, they are not within the intent of the statute. There can be no crime, under sections 74 and 75, when the original taking is felonious, because the statute applies only to cases where the original taking was lawful, but a subsequent conversion is made. 2 Wharton on Crim. Law, (7th ed.) 1905.
    Taking property from the actual or constructive possession of the master by a servant, is larceny. 2 Wharton on Crim. Law, (7th ed.) 1924; 2 Archbold’s Crim. Plead. 560, et seq.; The People v. Sherman, 10 Wend. 298; The People v. Dalton, 15 id. 581; Lœwenthal v. The State, 32 Ala. 589.
    The statutes in relation to embezzlement were passed solely and exclusively to provide for cases which larceny at common law did not include,—hence, nothing that was larceny at common law is larceny under the embezzlement statutes. Kribs v. The People, 81 Ill. 599; 2 Wharton on Crim. Law, 1905.
    Mr. Luther Laflin Mills, and Messrs. Swett, Haskell & Grosscup, for the People:
    It will not avail one charged with crime, that the means and force by which he was brought within the jurisdiction of the court were illegal. Rex v. Marks, 3 East, 157; Ex parte Kraus, 1 Barn. & Cress. 258; Ex parte Scott, 9 id. 446; The State v. Smith, 12 S. C. 430; The State v. Brewster, 7 Vt. 118; Dow’s case, 18 Pa. St. 37; The People v. Rowe, 4 Park. Cr. 253; Ex parte Coupland, 26 Texas, 328; The State v. Ross, 21 Iowa, 467; United States v. Caldwell, 8 Blatchf. 131; Adriance v. Lagrave, 59 N. Y. 110; United States v. Lawrence, 13 Blatchf. 306.

      The court will not look into the question how the accused was captured. Ex parte Scott, 9 Barn. & Cress. 446; The State v. Smith, 12 S. C. L. 283; The State v. Brewster, 7 Vt. 118; The People v. Rowe, 4 Park. Cr. 253. See, also, cases above cited.
    The statutes of this State defining embezzlement do not follow the common law definitions. Under our statutes the same acts may be both embezzlement and larceny, and the fact that the acts proved constitute larceny at common law, does not prevent the act from being embezzlement. The statutes of this State create the crime of embezzlement independently of the common law, and any act that comes within the meaning of the statute is embezzlement, irrespective of the common law definition. Cases based upon statutes differently framed can have no bearing.
    While the legal possession of the moneys, etc., was in the firm of Preston, Kean & Co., the actual possession was in all who had access to the vaults, and who at all times could put their hands upon the money and securities.
    There was no error in refusing to require the prosecution to elect upon which act of embezzlement they should proceed, for the reason that the evidence submitted did not show that there were separate acts of embezzlement. It was a question of fact if the whole amount had been embezzled at one time or at different times, and the court properly submitted that question to the jury. The People v. McKinney, 10 Mich. 95; Bishop on Crim. Proc. 460, note; Rex v. Dunn, Car. Cr. L. (3d ed.) 82.
   Mr. Justice Scott

delivered the opinion of the Court:

It appears from the record before this court, that at the February term, 1883, of the Criminal Court of Cook county, the grand jury presented, in open court, an indictment against Frederick M. Ker, which contained four counts, in the first of which he is charged with embezzlement as bailee; in the second, with embezzlement as a clerk; in the third, with larceny as at common law; and in the fourth, with receiving stolen property. In the several counts, the money, funds and securities alleged to have been embezzled and stolen are alleged to be the personal goods and property of David Preston, Samuel A. Kean and Elisha Gray, a co-partnership firm under the name of Preston, Kean & Co. On the 13th day of October, 1883, defendant, on being arraigned, filed a plea to the jurisdiction of the court over his person, the effect of which was to ask immunity from prosecution on the indictment then pending against him, for the reasons set forth in his plea. To that plea a general demurrer was sustained, and defendant was, by the court, required to plead over. Against the protest of defendant that he was entitled to immunity from prosecution for the offences alleged against him in the indictment, on account of the matters set forth in his plea, and because he refused to plead over, the court entered a plea of not guilty for him. On the trial the jury found defendant guilty of embezzlement, as charged in the indictment, and fixed the term of punishment at ten years in the penitentiary. A motion for a new trial entered by defendant was overruled, and the court pronounced judgment on the verdict, and defendant brings the ease to this court on error.

One ground of error relied on with much confidence is the decision of the court sustaining the demurrer to defendant’s plea calling in question the right or jurisdiction of the court to proceed with the trial against him,—or, what is the same thing, it is insisted it was error in the court not to grant him immunity from prosecution. Of course, the demurrer admits the facts alleged in the plea, and there can be no controversy as to what they are. Shortly stated, the principal facts are, that upon the written request of the Governor of Illinois, the President of the United States issued an extradition warrant, directed to the government of the republic of Peru, for the surrender of defendant, under the treaty of our government with that government, and named therein Henry Gr. Julian as messenger to receive defendant from the authorities of Peru. The crime of larceny, with which defendant stood charged, is one of the offences specified in the treaty for which a party should be surrendered, and it was specified in the President’s warrant as the crime for which his surrender was demanded. On the same day the executive warrant was issued, the Secretary of State at Washington made a written request upon the United States Consul acting at Lima, to procure the executive of Peru to surrender defendant to Julian, under the treaty between the United States and Peru of September 12, 1870, which, it is averred, was and is the only treaty in force between the two governments. It is then averred no request was ever made by the United States Consul at Lima, or by Julian, or any other person, upon any of the authorities or diplomatic agents of the government of Peru, for the surrender of defendant, in compliance with the President’s warrant, nor was any consent or authority given by the authorities or diplomatic agents of Peru, to Julian or to any other person, to arrest and remove defendant from Peru, for any cause, and that on the 3d day of April, 1883, while defendant was domiciled at Lima, in Peru, Julian, with the aid of persons whose names are unknown, without any authority or warrant from the authorities or diplomatic agents of Peru, arrested defendant, and forced him to go to Callao, and there placed him on board the steamship “Essex, ” and kept him a close prisoner on such vessel. Afterwards the “Essex” sailed to the port of Honolulu, with defendant on board, and there, at that port, but perhaps outside the harbor, defendant was transferred to the “City of Sidney,” an American ship about to sail for San Francisco, in California. The steamship “Essex” was a vessel belonging to the navy of the United States, and was at the time commanded by officers of the navy. The “City of Sidney” was perhaps an American merchant vessel,—hut how that is, matters little. While these events were transpiring, the parties prosecuting procured from the Governor of the State of Illinois a requisition upon the Governor of California, for the arrest of defendant, in which Frank Warner was named a suitable person to receive defendant from the authorities of California and bring him to this State for trial. Afterwards the Governor of California issued his warrant, in pursuance with the requisition of the Governor of the State of Illinois, for the arrest of defendant. On his arrival at San Francisco in the “City of Sidney, ” defendant was arrested, on the warrant of the Governor of California, and delivered to Frank Warner, the messenger named to receive him, and was by him brought into this State, and delivered into the custody of the sheriff of Cook county, where the indictment on which he was after-wards tried was found, and was then pending in the Criminal Court against him. Other matters are contained in the plea, but as they are not necessary to an understanding of the discussion that is to follow, they need not be stated.

A proposition asserted by counsel for the defence is, the Criminal Court of Cook county never obtained jurisdiction of defendant by “due process of law, ” for the purpose of trying him for larceny, or any other crime. The position taken on this branch of the ease is much weakened by the consideration, it appears from the averments of the plea itself the bringing of defendant into the State trying him for an offence committed within its limits, toas by “due process of law, ” whatever wrong may have been done to him elsewhere. The Governor of the State of Illinois made a requisition upon the Governor of the State of California for the surrender of defendant as a fugitive from the justice of the State, and designated Frank Warner to receive defendant and bring him back to this State. In compliance with that requisition, the Governor of California did issue his warrant, upon which defendant was arrested within the jurisdiction of that State,'and delivered into the custody of Frank Warner, who brought him into this State, and delivered him to the sheriff of Cook county. That was in accordance with usage and law. It is not allowable, on the trial of one who has been surrendered by a sister State, under the laws of Congress, as a fugitive from justice, to inquire as to the regularity or irregularity of such surrender. It affects neither the guilt nor innocence of the accused, nor the jurisdiction of the court to try him. Conceding, as may be done, defendant was arrested in Peru, and brought into the State of California, without warrant of law, the State now prosecuting defendant was not a party to any violation of any treaty or other public law. The application the State made to the executive department of the general government was for the legal arrest of defendant, and if there was any abuse of the warrant of the Federal government, or any treaty obligations with a friendly power violated, it was not done by the State now conducting the prosecution against defendant. Julian, whom it is alleged made the illegal arrest of defendant, and brought him within the jurisdiction of the State of California, was acting either under the warrant of the President or on his own responsibility. He did not bring defendant into this State at all. It was done by another person, on a requisition from the Governor of Illinois, and on a warrant issued by the Governor of California for his arrest in that State. Of the action of the State prosecuting him, defendant can have no just ground of complaint that he was brought within its jurisdiction without “due process of law.” The People v. Rowe, 4 Parker’s Cr. Rep. 253; Adriance v. Lagrave, 59 N. Y. 110; The State v. Ross, 21 Iowa, 467.

But waiving every objection to the plea that may seem to be technical, and considering it on the broadest grounds taken in its support, it is thought the demurrer was properly sustained. Three propositions are stated, which, if they can be maintained, it is insisted lead to the conclusion the Criminal Court of Cook county never obtained jurisdiction of defendant to try him for larceny or any other crime: First, that the United States, by its treaty with the republic of Peru, provided “due process of law” for getting jurisdiction of persons domiciled in that country charged with having committed certain crimes, among which is larceny, of which defendant was charged in one count of the indictment against him; second, that , such “due process of law” must be obeyed in all its terms, expressed or implied; and third, that such “due process of law, ” for the purpose of getting jurisdiction in such cases, by necessary implication excludes any other mode of getting jurisdiction. As has been seen, defendant was not, in fact, brought within the jurisdiction of the United States under its treaty with Peru; but the argument assumes that if defendant was brought back to the United States' otherwise than under the treaty between the United States and Peru, his capture and detention would be unlawful, as being in violation of a right of asylum he is supposed to have had, under the treaty, at the place he was domiciled when captured. Bo principle is suggested on which this proposition can be maintained as broadly as stated, nor is any case, English or American, cited where the decision was rendered, on analogous facts with the case being considered, that holds the doctrine contended for. Undoubtedly at common law the rule is, the court trying a party for a crime committed within its jurisdiction will not investigate the manner of his capture, in case he had fled to a foreign country and had been brought back to its jurisdiction, although his capture had been plainly without authority of law. It is sufficient the accused is in court, to require him to answer the indictment against him. It is thought, and with good reason, any other rule 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 Tenderden, 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. The State v. Smith, Bailey’s (S. C.) Law Rep. 281, and note; The State v. Brewster, 7 Vt. 118; Adriance v. Lagrave, 59 N. Y. 110; The 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 had of a party accused of crime, in the 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 defence, 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 offences 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 offences 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 right 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.

Eejecting, 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 defence is 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 extradition 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. Haines, 13 Bush, 700, The State v. Vanderpool, 16 Vol. C. L. N. 34, 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, can not be proceeded against or tried by the State for any other offences 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 international 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 government 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 offences, without bad faith to the government that consented to his extradition, and for which it would have just grounds to demand reparation. Such an act would be in violation of both the letter and spirit of the treaty. But this doctrine, if it shall be conceded it has for its support natural justice, and even the weight of authority, 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 offence. 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 offence 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. It was 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.'

But aside from all authority, on principle defendant has shown no right to immunity from prosecution for the offences for which he was indicted. The Federal government has 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 offence. What was done was done by individual wrong, precisely as was done in Ex parte Scott, supra, and The 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.

Errors have been assigned that affect the merits of the case on the trial, that must be considered. That defendant converted to his own use large sums of money and securities belonging to the firm of Preston, Kean & Co., or to other persons in their care or custody, admits of no doubt. There is no pretence he is not guilty of criminal conduct. The objections taken to the legality of his conviction are of the most technical character.

The point is made there is a variance in the pleading and the proof. It is alleged in the indictment the funds and securities embezzled were the personal goods of David Preston, Samuel A. Kean and Elisha Gray,—a co-partnership under the name of Preston, Kean & Co.,—and the insistence is, the firm, in law, was composed of David Preston, Samuel A. Kean and James Payne, with Elisha Gray as special partner. Certified copies from the record and files of the county clerk’s office show the formation of a limited partnership, pursuant to the provisions of the statute, and that the firm was at one time composed of David Preston, Samuel A. Kean and James Payne, as general partners, with Elisha Gray as special partner.v, That was in May, 1881. The oral testimony given, shows that in November, 1881, the special partnership ceased, and since then the firm, as a matter of fact, has been composed of David Preston, Samuel A. Kean and Elisha Gray. The partnership articles of May, 1881, were made a matter of record, but it does not appear there were any partnership articles after that date, and it is insisted it is not legal to show by oral evidence, as was done, that Payne ceased to be a partner in November, 1881. The objection taken rests on section 12, chapter 84, of the Revised Statutes of 1874, which provides no dissolution of a limited partnership shall take place, except by operation of law, before the time specified in the certificate made a matter of record, unless a notice of such dissolution is also recorded in the same registry, and other provisions of the statute complied with. The time for the duration of the partnership under-the articles of May, 1881, had not expired in November, 1881, when an agreement was made between the partners that Payne should cease to be a partner, and Gray should become a general partner. The firm name continued as it was, but no notice of the change of the persons composing the firm was made a matter of record, nor was any other public notice given, as the statute requires shall be given. On account of the non-compliance with the statute in this regard, it is said the firm should be regarded as still being composed of the same persons as composed it under the articles of May, 1881. That may be true as to creditors and persons dealing with the firm without actual notice, but as between the partners themselves, Payne had no interest whatever in the firm assets after the agreement he should cease to be a partner. It is sufficient, under the law of this State, that the property is alleged in the indictment to belong to the persons who in fact own it, or have a special interest in it. That was done in this ease, and there is no variance between the proof and the allegations of the indictment in this respect.

It is insisted the evidence shows a cumulation of offences, and for that reason it was error in the court to deny defendant’s motion to compel the prosecution to elect upon what alleged act of larceny or embezzlement a conviction would be asked. The court, by its ruling, submitted all the evidence touching the embezzlement of funds and securities by defendant, to the jury, and it is not perceived how it could properly have done otherwise. Embezzlement is a crime defined by statute, and it was entirely competent for the legislature to declare what acts would constitute the crime, and fix the measure of punishment. One element that enters into the statutory definition of embezzlement, is the fiduciary or confidential relation. Such relations afford the amplest opportunity to misappropriate money, funds and securities, and often present great difficulty in proving exactly when and how it was done. This is especially true with regard to clerks and confidential agents in banks, or other corporations or firms doing a large business, and who are intrusted, in whole or in part, with the care or custody of funds, securities and property belonging to banks or other corporations, or to a co-partnership. It is difficult, in such cases, if at all possible, to prove with certainty when or how the embezzlement was effected. It is, of course, done with a view to avoid detection, and the confidential relations existing ward off suspicion. Embezzlement may, and most often does, consist of many acts done in a series of years, and the fact at last disclosed that the employer’s money and funds are embezzled is the crime against which the statute is leveled. In such cases, should the prosecution be compelled to elect it would claim a conviction for only one of the many acts of the series that constitute the corpus delicti, it would be doubtful if a conviction could be had, under sections 75 and 76 of the Criminal Code, against a clerk in a bank or other corporation, or a co-partnership, altíiough the accused might be conceded to be guilty of embezzling large sums of money in the aggregate. It might be otherwise or different, under section 74 of the Criminal Code, where distinct ■ sums of money or articles of personal property are or may be delivered to the accused on different occasions wide apart. Such distinct acts might very readily be susceptible of direct proof, for the act of delivery implies actual knowledge in some one who could be a witness. But no such opportunity is afforded to make direct proof as to acts done, under sections 75 and 76, defining embezzlement. The body of the crime consists of many acts done by virtue of the confidential relations existing between the employer and the employe, with funds, moneys or securities over which the servant is given care or custody, in whole or in part, by virtue of his employment. The separate acts may not be susceptible of direct proof, but the aggregate result is, and that is embezzlement. To avoid the difficulty, no doubt, that might be encountered in making proof in such cases, it is provided by statute,' (section 82 of the Criminal Code,) in the prosecution for the offence of embezzling, fraudulently converting to one’s own use, or fraudulently taking or secreting with intent so to embezzle and convert, the bullion, money, notes, bank-notes, checks, drafts, bills of exchange, or other security for money, by a cashier or other officer, clerk or agent of such person, bank, incorporated company, or corporation or co-partnership, it shall be sufficient to allege, generally, in the indictment, an embezzlement, fraudulent conversion or taking, with such intent, funds of such person, bank, incorporated company or co-partnership, to a certain value or amount, without specifying any particulars of such embezzlement. Indeed, in the very nature of the crime, it would be impracticable in most cases to do more. The case being considered shows, in a marked degree, the necessity for the rule provided by statute, otherwise it would be difficult to make the proof and the allegations of the indictment correspond. On the trial the same liberal rule for the detection and punishment of persons guilty of misconduct, by reason of their confidential relations with their employer, prevails, for it is provided in the same section of the Criminal Code, evidence may be given of any such embezzlement, fraudulent conversion or taking, with such intent; and it shall be sufficient to maintain the charge in the indictment if it is proved that any bullion, money, note, banknote, check, draft, bill of exchange, or other security for money, of such person, bank, incorporated company or co-partnership, of whatever value or amount, was fraudulently embezzled, converted or taken, with such intent, by such cashier, or other officer, clerk, agent or servant. Under this rule, which is certainly a wise one, it was proper the court should permit all the évidenee of what defendant did by reason of his confidential relations with the banking firm whose clerk he was, to go to the jury, as was done, and if the jury found, from the whole evidence, any funds or securities for money had been embezzled or fraudulently converted to his own use by defendant, it was sufficient to maintain the charge of embezzlement, as that crime is defined in the 75th and 76th sections of the Criminal Code. Any other rule would render it exceedingly difficult to secure a conviction under either of these sections of the statute. The view taken by the defence, of this statute, is too narrow and technical to be adopted. It has a broader meaning, and when correctly read, it will embrace all wrongful conduct by confidential clerks, agents or servants, and leave no opportunity for escape from just punishment on mere technical objections not affecting the guilt or innocence of the party accused. The cases of Kribs v. The People, 82 Ill. 425, and Goodhue v. The People, 94 id. 37, cited by the defence, were prosecutions for embezzlement under other sections of the Criminal Code, and illustrate no phase of the case being considered. There was no error in the court refusing to require the prosecution to elect for what particular act of embezzlement a conviction would be asked.

The last ground of objection is, the verdict is without evidence, and against the law. Ordinarily, whether there is evidence to warrant a conviction, is a question for the jury, the court taking care always to see that no manifest injustice is done. "With that view the evidence has been considered. It is seen the testimony of other witnesses, taken in connection with defendant’s letter to the banking firm, written on the eve of his departure, with the schedule attached of securities and money embezzled, constitutes ample proof of the corpus delicti. It would answer no good purpose to enter upon an analysis of the evidence,—it is sufficient to state the conclusion reached.

But whether the verdict is contrary to law is a question for the court, and that has been fully considered. The objection in this regard goes to the extent, that, admitting all the evidence tends to prove, it does not constitute embezzlement, under the 75th section, or any other section of the Criminal Code. The argument on this branch of the case is based on a misconstruction of that section of the Criminal Code defining the crime of embezzlement. There are two counts in the indictment that charge defendant with embezzlement. On examination it will be seen they are both substantially in the language of the statute, and that is all the law requires. In the first count it is charged defendant embezzled securities for money, gold coin and other funds and property of Preston, Kean & Co., “then and there intrusted” to defendant; and in the second count it is charged, defendant, being then and there a clerk in the employ of Preston, Kean & Co., fraudulently and feloniously did, without then and there having the consent of such firm, embezzle and fraudulently convert to his own use a large amount of the personal goods, funds and money,—all of which is described with sufficient particularity,—which personal goods, money and funds “then and there came to the possession” of defendant “by virtue of such employment.” It will be observed the 75th section of the statute, under which the second count in the indictment was evidently framed, makes it an offence for a person occupying such confidential relations to embezzle property of his employer, or that of another that comes to his possession or under his care, or to secrete the same with intent to do so, by “virtue of his employment” with the owner or owners. The words “under his care, ” found in the 75th section of the statute, are not used in this second count of the indictment, and it is contended the proof fails to show the funds and property alleged to have been embezzled were ever in the possession of defendant by virtue of his employment, and for that reason it is said he is not guilty under this count. The word “care, ” as used in the statute, is the equivalent of “custody,” and may mean “charge,” “safekeeping,” “preservation,” “security,” and it would seem it w'as in that sense it was used in the statute. “Possession,” as used in the same section, has perhaps a slightly different and broader meaning than the word “care,” but it may also mean “to keep, ” “to take or seize hold, ” “to hold or occupy, ” as the owner of property would or might do. It matters little whether one or both words were used in the indictment. A close reading of the testimony will show the funds embezzled were quite as much in the possession of defendant as under his care. It is idle to say, in view of the relations defendant sustained to the banking firm, as disclosed by the testimony, that the funds and securities in the vaults were not in possession of defendant and other persons employed about the bank, and who had access to such funds and securities, for one purpose or another. ' If the indictment can not be maintained on the ground the funds and securities embezzled were in the possession of defendant, as that term is used in the statute, by virtue of his employment, it could not had it been alleged they were under his care, or had it been charged they came both to his possession and under his care by virtue of his employment ,• and the case would be presented where a clerk converted to his own use* $44,000 of his employer’s money and securities, and yet guilty of no crime, within the meaning of this section of the statute. So narrow a construction as that insisted upon would render nugatory this section of the statute which defines embezzlement by clerks and confidential agents.

It seems to be claimed as to the money, bonds and property alleged to have been embezzled of his employers, the taking of them out of their vaults by defendant was larceny at common law, and therefore could not be embezzlement, under the 75th section of the Criminal Code. No such subtle reasoning as that will satisfy the common understanding. It is not denied that defendant converted to his own use large sums of money and securities belonging to the bank while he was in its employ as a clerk, and that such funds did in some way come to his possession. How did he come to get possession of such funds and securities for money, if it were not by virtue of his employment ? Had he not been in the employ of this banking house he could have had no access to their vaults. No attempt will be made to ascertain defendant’s exact relation with the bank. It is enough to know his position, whatever it was, gave him access, for some purposes at-least, to the vaults where the funds and securities were kept, and that brought the funds and securities embezzled, into his possession, or, what is really the same thing, under his care, in a measure, by virtue of employment. It was simply by virtue of his employment, and not otherwise, that he got possession of his employers’ money and securities, and converted the same to his own use, and that is embezzlement, under the 75th section of the Criminal Code. It is that for which he was indicted and convicted, and it is the offence defined by the statute.

It is to be observed the statute of this State defining the crime of embezzlement is much more comprehensive than any English statutes on the same subject that we have examined, and especially that section which defines embezzlement by a clerk or confidential agent who converts to his own use funds belonging to his employer which may come to his possession or under his care by virtue of his employment, and the decisions of the English courts, construing their own statutes, do not in any way assist to a correct understanding of the statutes of this State on the same subject. Much of what is said by text-writers to which the attention of the court has been called was said with reference to English statutes, which are materially different from that section of the statute of this State under which defendant was indicted. On account of the dissimilarity of the statutes, it has not been thought necessary to remark upon English embezzlement statutes, nor upon the decisions of English courts construing them. Decisions have been rendered by courts of some of our sister States construing statutes substantially like section 75 of the Criminal Code of this State, that make the embezzlement of money or personal goods larceny, among which are The Peo ple v. Sherman, 10 Wend. 299, The People v. Dalton, 15 id. 581, and Lowenthal v. The People, 32 Ala. 589. So much of the reasoning in the opinions in the cases cited as is applicable to the present decision may be read as being in harmony with the views expressed in this opinion.

No error affecting the merits of the case appearing in the record, the judgment is affirmed.

Judgment affirmed.