30,000 dollars being missing. By the law of the local legislature of New York, this false entry is forgery, and a warrant for his apprehension on the charge of forgery was issued. He had sailed, and was followed to England and arrested. He was committed on the 3rd of February, by the Bow Street magistrate, Sir Thomas Henry, to the House of Detention, Clerkenwell, to be detained in order that he might be delivered up to the United States authorities according to the provisions of the Extradition Treaty, and the 6 & 7 Vict. c. 76.

The attorney of Windsor then took out a summons before a Judge at Chambers, for a habeas corpus, in order to have the proceedings reviewed. This summons was heard before Mellor, J., who referred the whole matter to the Court.

The Treaty of Washington, concluded in 1842, provides, inter alia, "That her Majesty and the said United States should, upon mutual requisitions by them or their ministers, officers, or authorities respectively made, deliver up to justice all persons, who being charged with the crime of murder, or 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 of the high contracting parties, should seek an asylum, or should be found within the territories of the other. Provided that this should only be done upon such evidence of criminality as according to the laws of the place where the fugitive or person so charged should be found, would justify his apprehension and commitment for trial if the crime or offence had been there committed; and that the respective Judges and other magistrates of the two Governments should have power, jurisdiction, and authority upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, so that he might be brought before such Judges or other magistrates respectively, to the end that the evidence of criminality might be heard and considered; and if on such hearing the evidence shall be deemed sufficient to sustain the charge, it should be the duty of the examining Judge or magistrate to certify the same to the proper executive authority, that a warrant might issue for the surrender of such fugitive, and that the expense of such apprehension and delivery should be borne and defrayed by the party making the requisition and receiving the fugitive."

Majesty, it shall be lawful for one of Her Majesty's principal Secretaries of State, or in Ireland for the Chief Secretary of the Lord Lieutenant of Ireland, and in any of Her Majesty's colonies or possessions abroad for the officer administering the government of any such colony or possession, by warrant under his hand and seal to signify that such requisition has been made, and to require all Justices of the Peace and other magistrates and officers of justice within their several jurisdictions to govern themselves accordingly, and to aid in apprehending the person so accused, and committing such person to gaol for the purpose of being delivered up to justice, according to the provisions of such treaty; and thereupon it shall be lawful for any Justice of the Peace, or other person having power to commit for trial persons accused of crimes against the laws of that part of Her Majesty's dominions in which such supposed offenders shall be found, to examine upon oath any person or persons touching the truth of such charge, and upon such evidence as, according to the laws of that part of Her Majesty's dominions, would justify the apprehension and committal for trial of the person so accused, if the crime of which he or she shall be so accused had been there committed, it shall be lawful for such Justice of the Peace, or other person having power to commit as aforesaid, to issue his warrant for the apprehension of such person, and also to commit the person so accused to gaol, there to remain until delivered pursuant to such requisition as aforesaid."

Section 2. "That in every such case copies of the depositions upon which the original warrant was granted, certified under the hand of the person or persons issuing such warrant, and attested upon the oath of the party producing them to be true copies of the original depositions, may be received in evidence of the criminality of the person so apprehended."

Section 3. "That upon the certificate of such Justice of the Peace, or other person having power to commit as aforesaid, that such supposed offender has been so committed to gaol, it shall be lawful for one of Her Majesty's principal Secretaries of State, or in Ireland for the Chief Secretary of the Lord Lieutenant of Ireland, or in any of Her Majesty's colonies or possessions abroad for the officer administering the government of any such colony or possession, by warrant under his hand and seal, to order the person so committed to be delivered to such person or persons

Section 1. "That in case requisition shall at any time be made by the authority of the said United States, in pursuance of and according to the said treaty, for the delivery of any person charged with the crime of murder, or assault with intent to commit murder, or with the crime of piracy, or arson, or robbery, or forgery, or the utterance of forged papers, committed within the jurisdiction of the United States of America, who shall be found within the territories of Her

States, to receive the person so committed, and to convey such person to the territories of the United States, to be tried for the crime of which such person shall be so accused, and such person shall be delivered up accordingly. And it shall be lawful for the person or persons authorised as aforesaid to hold such person in custody, and take him or her to the territories of the said United States, pursuant to the said treaty. And if the person so accused shall escape out of any custody to which he or she shall be committed, or to

which he or she shall be delivered as aforesaid, it shall be lawful to retain such person in the same manner as any person accused of any crime against the laws of that part of Her Majesty's dominions to which he or she shall so escape, may be retaken upon an escape."

By an Act of Parliament (8 & 9 Vict. c. 20) the form of the proceedings to be taken in pursuance of the previous Act was regulated.

The offence now charged against the prisoners is that of forgery contrary to the Statutes of the State of New York. The section will be found in the edition of the New York Revised Statutes, published in 1862, vol. 2, p. 561.

The 35th section is as follows-"Every person who with intent to defraud shall make any false entry, or shall falsely alter any entry made in any book of accounts kept by any moneyed corporation within this State, or in any book of accounts kept by any such corporation, or its officers, and delivered, or intended to be delivered, to any person dealing with such corporation by which any pecuniary claim, obligation, or credit shall be, or shall purport to be, discharged, diminished, increased, created, or in any manner affected, shall upon conviction be adjudged guilty of forgery in the third degree."

laws of the United States: it is only forgery by the Local Act of the State of New York, and the question for us to decide is, whether this fact alone is sufficient to bring the case within the statute? I think it is not. The true construction seems to me to be, that the terms are meant to apply to offences which in the laws of both countries, have a common element. By what may be called a piece of artificial legislation, an offence which is not forgery either by our laws or the laws of the United States, is made by the State of New York to appear so. Now this statute was not intended to embrace all the legislation of each separate State in America, and we must not interpret as if it were. The words must have their ordinary signification, and inasmuch as the New York Local Acts depart from the laws of the United States and of this country in the matter of what is usually called “forgery," this is not a case for a surrender of the prisoner.

BLACKBURN, J.-I concur. The power to surrender criminals is derived from the 6 & 7 Vict. c. 76. For

gery is there specified. The offence with which the prisoner here is charged was not forgery: forgery is the false making of an instrument purporting to be what it is not: it is not the making of an instrument purporting to be what it is, but containing a falsehood. Reducing a lie to writing, is not forgery. Then the

The offence was not forgery within the meaning of the Extradition Treaty, and to enable the Court to act it should amount to forgery by the law of England, Regina v. Tugham, 29 L. J. M. C. 18; Wheaton's International Law, 236, 251, n. 77; 2 Inst. 75;

2 Revised New York Statutes, 760;
Ortolan, Diplomatie de la Mer, 340, 327;
Phillimore's International Law, 233;

20 Up. Can. Q. B. Rep. 190;

36th Cong, 2nd Sess. Senate Ex. Doc. 11.

Giffard, Q.C. (Poland with him).

In re Tiernan, 12 W. R. 858; 33 L. J. M. C.
200;

Regina v. Hart, 1 Moo. C. C. 486;
Anderson's Case, 20 Up. Can. Q. B. Rep.

COCKBURN, C.J.-We are called upon to put a construction on the statute 6 & 7 Vict. c. 76, embodying the treaty for the extradition of persons charged with certain offences between this country and the United States, the surrender of the defendant being now demanded of us by that country. Amongst other offences mentioned in the Act, "forgery" is specified. Now the applicant in this case was guilty of making a false entry in a book of a moneyed corporation, in which it was his duty to keep an account. No doubt the entry was false, and also was made for fraudulent purposes, but by the laws of this country, common or statute, the offence is not forgery, nor, moreover, is it by the general

comes in, by which the offence committed is forgery. Does the fact that it is made forgery by the local statute make it forgery within the 6 & 7 Vict. c. 76 ? I do not think it does. The words in that Act must have their ordinary meaning, and therefore "forgery" cannot mean any crime which one party may choose to call forgery. I agree, therefore, with my Lord that the prisoner must be discharged.

SHEE, J., concurred.

}

Prisoner to be discharged.

Q. B. 2 MAY, 1865. Mercantile Law Amendment Act, 1856 (19 & 20 Vict. c. 97) s. 4-Change in FirmGuarantee not Continuing.

BACKHOUSE AND OTHERS v.
HALL.

Defendant and M. gave to the plaintiffs (who were bankers at S.) the following guarantee: "In consideration that you have at our instance and request consented to open an account with the firm of G. W. & W. J. H., shipbuilders, we and each of us do hereby guarantee the payment to you of the moneys that at any time may become due not exceeding 50001., such payment by us not to be made at a shorter date than twelve months from this date." To this an indorsement "We request you to become guarantee for us in manner within set out" was signed by E. H. & S. H., who with M. were then the only members of the firm as the plaintiffs knew. E. H. &. S. H. were respectively the widows

of G. W. H. & W. J. H., the only original members of the firm, which had been carried on for many years at S., and, through many changes in the number and persons of its members, always under the same style of "G. W. & W. J. H." On the death of E. H. within six months after the making of the guarantee, the firm was carried on under the same style by the survivors, and the death being known to the defendant, and unknown to the plaintiffs, the plaintiffs continued as before to lend money to the firm :—

Held, under section 4 of the Mercantile Law Amendment Act, 1856, that the guarantee was not binding on the defendant for any moneys lent by the plaintiffs to the firm after the death of E. H., since the Court, looking at all the facts, thought that the intention of the parties that the guarantee should continue to be binding not | withstanding a change in the firm did not "appear either by express stipulation or by necessary implication from the nature of the firm or otherwise," within the meaning of that section.

Special case without pleadings. Action to recover 50007. on the defendant's guarantee, given under the following circumstances: For some years before 1840 George Wilkin Hall and William Joseph Hall (brothers of the defendant) carried on business in co-partnership as shipbuilders, under the style and firm of "G. W. & W. J. Hall." After the death of William Joseph Hall in 1840 the business was carried on by Sarah Hall (his executrix and widow), and by his executors (of whom the defendant was one), and by George Wilkin Hall, under the same style of "G. W. & W. J. Hall." George Wilkin Hall died in 1856. For some years after the death of William Joseph Hall, George Wilkin Hall acted as salaried manager of the firm of "G. W. & W. J. Hall," and for a few years prior to the death of George Wilkin Hall he and the defendant had the joint management thereof. After the death of George Wilkin Hall, the defendant, with Sarah, widow of William Joseph, and Elizabeth, widow of George Wilkin Hall, continued to carry on the business under the same style, and the defendant continued to act as salaried manager. In 1857 the then subsisting partnership was dissolved, and the business was thenceforward carried on by Elizabeth and Sarah Hall and their nephew M. under the same style of "G. W. & W. J. Hall," the defendant at the same time ceasing to act as manager. In 1858 M. applied to the plaintiffs, who were bankers, to give the firm accommodation by allowing them to open an account to be overdrawn to the extent of 50007., to which the plaintiffs consented upon receiving the following joint and several guarantee made and signed by M. and the

defendant.

"Sunderland, 25 February, 1858. "Gentlemen,—In consideration that you have, at our instance and request, consented to open an account

firm was carried on under the same style by Sarah Hall and M., and the plaintiffs, as before, kept the accounts of the firm at the bank carried on by them as continued accounts. On the 2nd of July, 1861, the defendant's attorney, by the defendant's direction, gave the plaintiffs notice that the defendant would not hold himself liable to them after the receipt of that notice, for any moneys to be thereafter advanced by them to the firm, and expressed a hope that there would be no difficulty in relieving the defendant's mind "by a speedy release of his guarantee." To this the plaintiffs replied, declining to release the defendant from his liability. On the 2nd of July, 1861, the balance of account due to the plaintiff's from the firm exceeded 50007. All the advances upon which this balance accrued were made subsequent to the death of Elizabeth Hall. The defendant in no other way, if at all, made himself responsible for that or any other balance, unless by the guarantee. The firm stopped payment in 1862. The Court to draw all inferences of fact which a jury might draw.

The question for the Court is, whether, under these circumstances, the defendant is liable under his guarantee to pay to the plaintiffs any and what portion of the balance due to the plaintiffs from the firm of "G. W. & W. J. Hall," on the 2nd of July, 1861.

Bovill, Q.C. (Karslake, Q.C., and Hannen), for the plaintiffs.

The defendant continued liable after Elizabeth

Hall's death, for this was evidently intended to be a continuing guarantee, and not to cease upon the death of any member of the firm. In the guarantee the firm is described as "G. W. & W. J. Hall," its old style, though G. W. & W. J. were both long dead. If it was intended to confine the guarantee to the then

existing members, their names would at least have been mentioned. Everything in the case tends to show that it was so intended, not one circumstance tends the other way. Moreover the defendant's application of the 2nd of July is conclusive to show that he considered it as a continuing guarantee.

The decisions under the old law were, that if there was any change in the firm the guarantee ceased. To alter these, 19 & 20 Vict. c. 97, s. 4, was passed, enacting that, under such circumstances, the promise should not be binding "unless the intention of the parties that such promise shall continue to be binding notwithstanding such change shall appear, either by express stipulation or by necessary implication from the nature of the firm or otherwise." Here, such an intention does appear, both by necessary implication from the nature of the firm and otherwise.

Metcalf v. Bruin, 12 East, 400, the security was held to be continuing; but there the obligees were a fluctuating company, with constant changes by transfer. It is simply a question of intention, and each case must be judged by its own peculiar circumstances.

Secondly, as to the defendant's admission in 1861 that he himself believed the guarantee to be continuing, the case must be decided, not by his misappre

We say that the security ceased on Elizabeth Hall's death. The preamble of 19 & 20 Vict. c. 97, shows that this Act was passed to re-affirm the Common Law. The 19 & 20 Vict. c. 60, was passed to effect the same object in Scotland, and the words are just the same. (See section 7.) The old law in England was, that if there was a change either in the firm for whom, or in the firm to whom, the guarantee was given, the guarantee did not continue unless it contained a special provision to that effect. In,

Weston v. Barton, 4 Taunt. 673, Mansfield, C.J., says, that from all the cases, except Barclay v. Lucas, "the propriety of which decision has been very much questioned, it results that where one of the obligees dies, the security is at an end,"

Simson v. Cooke, 8 Moore (C. P.), 606. There is an obvious reason why an obligor should become answerable for one or two persons known to him, but not for the firm when they have left, or when a stranger enters.

[BLACKBURN, J.-See

Chitty on Contracts, p. 473 (7th ed.).

In a note to

Barclay v. Lucas, 3 Doug. 326,

meant immediately after it was signed. The defendant cannot waive his defence by such an admission, and it is no evidence of what was intended at the time of making the guarantee. Therefore, on the whole, there is nothing in this case to bring it within the saving clauses of 19 & 20 Vict. c. 97, s. 4.

Bovill, Q. C., in reply. It is clear, and not denied, that the defendant believed himself to be still liable, and the plaintiffs believed so too. Therefore, that raises a very strong presumption that it was mutually intended that the guarantee should continue. Metcalf v. Bruin is strongly in my favour. In our case the firm was an old family business, handed down successively from father to son, and husband to widow, and likely to have further changes, all which was well

known to the defendant. He knew also of Elizabeth Hall's death as soon as it happened, and he ought to have informed us of it. It is very hard upon the plaintiffs, who are heavy losers. There was the same difficulty felt in the Scotch Law (Bell's Commenta ries, 1, 286), and the 19 & 20 Vict. c. 60, was passed to clear it up,

Smith's Mercantile Law, 55 (5th ed.). BLACKBURN, J.-I think our judgment should be

Chapman v. Beckinton, 3 Q. B. 703,

and the note in Patteson, J.'s, edition to 2 Wms. Saund. 414 a, n. (5). Barclay v. Lucas is not at all like our case, and it is doubted in Dance v. Girdler (1 N. R. (Bos. & Pul.) 34). This is not at all like the case of a banking co-partnership formed, for instance, under 7 Geo. 4, c. 46, where the very nature and constitution of the firm is that the members are constantly changing. There is nothing whatever in the nature of this firm from which a "necessary implication" (for a reasonable inference is not enough) must be drawn that the guarantee was meant to continue. This is not a firm one member of which could readily sell his

the 25th of February, 1858. [The learned Judge, after reading the guarantee, proceeded.] Now, at the time this was made, the firm of "G. W. & W. J. Hall had been for some years carrying on the business of shipbuilders. During that time several changes in the members constituting the firm had occurred, both by old partners dying, and also by new partners being taken in. When this guarantee was made the firm consisted solely of the two widows of George Wilkin Hall and William Joseph Hall, and a third partner M., and all the parties to this guarantee knew that. With the firm thus constituted the business goes on for some time, till on the 5th of July, 1858, one of the widows dies. At that date the balance of account due

from the firm to the plaintiffs, and for which the defendant and M. were sureties, was 2,2861. Os. 9d. After this the business was continued by the surviving partners, and the account between the firm and the plaintiffs was carried on by the plaintiffs as continued accounts, the death of Elizabeth Hall not being known to the plaintiffs, but being known to the defendant. There is nothing, however, in the case to show either that the defendant was bound to disclose the fact to the plaintiffs, or, on the other hand, that he took any active steps to conceal it from them; it only appears that the plaintiffs had no opportunity of learning it. In this way the business is carried on so long that the 2,2867. Os. 9d. is discharged; but on the 2nd of July, 1861, more than 5000l. was due from the firm to the plaintiffs, and this debt was wholly incurred after the death of Elizabeth Hall. Therefore, the case raises the question, whether the guarantee binds the defendant to make good sums advanced to a firm not composed of the three members who constituted it when the guarantee was given. Before the Mercantile Law Amendment Act there was no doubt that a guarantee was not continuing, unless it appeared by the terms of it that the parties intended it to be so. Whenever there was an express stipulation to that effect, of course no doubt could be entertained. It had been decided in Barclay v. Lucas that, under the facts of that case, the bond was a continuing one; but that case was doubted in subsequent cases. In each case the real question to be considered is, whether the intention of the parties that the promise shall continue is sufficiently expressed. It had been decided in Metcalf v. Bruin that, under the facts of that case, a bond for indemnifying a company where mention was made "of all other members thereof," was meant to be continuing. It was there held by the King's Bench, that it sufficiently appeared that the defendant intended to become answerable to the members for the time being of a fluctuating company, and such being the construction put by the Court on the bond, the plaintiffs recovered. Then came the Mercantile Law Amendment Act, 1856, the object of which was to assimilate the English to the Scotch law, while at the same time another Act (19 & 20 Vict. c. 60) was passed to assimilate the Scotch law to the English. Now, by section 4 of the Mercantile Law Amendment Act, 1856, "no promise to answer for the debt, default, or miscarriage of another made to a firm consisting of two or more persons, or to a single person trading under the name of a firm, and no promise to answer for the debt, default, or miscarriage of a firm consisting of two or more persons, or of a single person trading under the name of a firm, shall be binding on the person making such promise in respect of any thing done, or omitted to be done, after a change shall have taken place in any one or more of the persons constituting the firm, or in the person trading under the name of a firm, unless the intention of the parties that such promise shall continue to be binding not

withstanding such change shall appear, either by express stipulation or by necessary implication from the nature of the firm or otherwise." I think that section does not alter the old law, but fixes the law in accordance with previous decisions. The first part enacts that such a promise shall not be binding, and that had been so decided in several cases. Then comes the saving clause-“unless the intention of the parties" (obviously a just and proper exception) "that such promise shall continue to be binding notwithstanding such change shall appear," &c. That, I think, means no more than that where such a case as Metcalf v. Bruin occurs, there the law shall remain the same; that is, if the intention of the parties appears, as it did in Metcalf v. Bruin, then the intention shall govern the decision. Now, can we say here that the intention of the parties appears by necessary implication from the nature of the firm or otherwise? Looking at all the facts of the case, I think it does not so appear. There is nothing to show that the idea of fresh partners entering the firm, or of the existing partners dying, was contemplated when the guarantee was made, and there is nothing in the nature of a shipbuilding firm which would necessarily imply such an intention. We all know that in every case of a partnership it would be very easy to provide for the event of a change in the members, if the parties wished to do so. It appears, however, that in 1861 the defendant thought he was still under the obligation, but we cannot alter the meaning of the guarantee from what it was the day after it was signed. The question is not what the defendant thought afterwards, but what the guarantee itself meant at the time, and I can see nothing here that amounts either to an express stipulation" or "necessary implication." It is rather hard upon the plaintiffs, but we are compelled to decide for the defendant.

SHEE, J., concurred.

Q. B.

THE SECRETARY OF STATE FOR INDIA v. ST. MARY, LAM

BETH.

3 MAY, 1865. Poor-rate-Non-rateability of Premises Occupied by Secretary of State-Occupation by Crown for Public Purposes.

Premises occupied as a warehouse for military stores for India, by the Secretary of State for India, are exempt from rates, the Queen being the occupier.

Case stated pursuant to 12 & 13 Vict. c. 45, s. 11. 1st. In an appeal wherein the Secretary of State in Council for India is appellant, and the churchwardens and overseers of the poor of the parish of St. Mary, Lambeth, in the county of Surrey, are respondents, it was, agreed by consent of the said parties, and by order of Shee, J., to state the following facts as a special case for