executive of the asylum state unless the accused clearly and satisfactorily shows that he is not a fugitive from justice within the meaning of the federal Constitution and the act of Congress.

This is a habeas corpus proceeding instituted in the court of quarter sessions of Philadelphia county to secure the release of Richard C. Flower, who was held by the respondent by virtue of an extradition warrant issued by the Governor of this state. The petition for the writ avers that Flower "is deprived of his liberty, unjustly as he apprehends, by reason of a requisition issued by the Governor of the state of New York for some criminal or supposed criminal matter." No other facts or reasons why he should be discharged are set forth in the petition. The writ was granted by the court, to which the respondent answered that Flower was held by virtue of a warrant issued by the executive of this state requiring Flower to be arrested and delivered into the custody of the agent of the state of New York, to be taken back to the state from which Flower had fled, pursuant to a requisition of the Governor of the state of New York. The warrant issued by the Governor of this state recites that the Governor of New York has represented to him that Flower stands charged with the crime of grand larceny, first degree, committed in the county of New York, state of New York,❘ and has fled from justice in that state and taken refuge in the state of Pennsylvania; that he has demanded of the executive of this state that Flower be arrested and delivered to the agent of the state of New York, there to be dealt with according to law. The warrant further recites that the requisition "is accompanied by a copy of the indictment, which is certified as authentic by the said Governor (of New York), and is now on file in the office of the Secretary of the commonwealth." The relator offered to prove on the habeas corpus hearing that the prosecution was inspired by improper motives, and that the extradition proceedings were not in good faith to secure the punishment for crime. The offer was refused. The relator was remanded, and an exception was noted for him. An appeal was taken from the quarter sessions to the superior court, which affirmed the order of the quarter sessions in remanding the prisoner. From the judgment of the superior court, the relator has appealed to this court.

If an application had been made for the writ of habeas corpus to this court, it would have been our duty on the hearing to have made the same investigation that the quarter sessions did, and to have determined the legality of the extradition proceedings under which the relator was held, but we have no such duty on this appeal. The hearing before us is as an appellate court, and not a court of first instance. The proceedings are before us on a writ of certiorari, and it would

have been called such prior to the act of 1889, which requires all appellate proceedings to "be taken in a proceeding to be called an appeal." While that act requires all appellate proceedings to be designated an appeal, this court on the hearing must necessarily observe the prior distinction between the writs which bring legal proceedings into the court for review. The act simply requires the appellate proceedings to be called an appeal, but it does not compel or require the appellate court to disregard on the hearing the prior distinction between the writs. An appeal in name may therefore be a writ of error or a certiorari in legal effect, and it is necessary in every case to look into the record and determine at the outset of our examination whether what is called an appeal is such in fact, or is a writ of error or a certiorari. Rand v. King, 134 Pa. 641, 646, 19 Atl. 806. In a case of habeas corpus issued and heard by the court below, we have distinctly ruled that an appeal from the order in such cases has only the effect of a certiorari. In the case in hand therefore we must regard the writ as a certiorari, and that only brings up for review the record in the case. Hence our authority must be confined to ascertaining the regularity of the proceedings of the court which heard the habeas corpus. Looking at that record, there can be no doubt of the regularity of the proceedings had before the quarter sessions. The petition for the habeas corpus simply averred that the relator was deprived of his liberty by virtue of the requisition of the Governor of New York. It did not aver that the crime charged against him was inspired by improper motives, or that he was not in the state of New York at the time when the offense is alleged to have been committed, or that he was not the defendant named in the warrant. As shown by the record, the relator admitted at the hearing that he was the person named in the warrant, and that he was in the state of New York at the time the crime was committed. The re turn to the writ disclosed that the relator was charged with a crime in the state of New York, and that a copy of the indictment, certified as authentic by the Governor of that state, accompanied the requisition for Flower's extradition. It is not denied that he was found in this state and arrested here by virtue of the extradition warrant issued by the Governor. He is therefore a fugitive from the justice of the state of New York. Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291, 29 L. Ed. 544. The proceedings before the quarter sessions as shown by the record are legal and regular in every respect, and the facts thus disclosed show that the court was entirely right in remanding Flower to the custody of the respondent.

On this writ we are not permitted to determine whether the evidence offered by the relator's counsel at the hearing should have been received and considered by the quarter

sessions. It is no part of the record. There is no way of making it a part of the record so as to have the refusal of the offer of the evidence reviewed by this court. The fact that the quarter sessions noted an exception and sealed a bill of exceptions will not authorize us to review the action of the court in declining to hear the evidence. Middleton v. Commonwealth, 2 Watts, 285. We must therefore affirm the order of the quarter sessions remanding the prisoner, and also the judgment of the superior court affirming that order. But, if the question was properly before us, we are clear that the quarter sessions was right in refusing to hear the evidence offered by the relator. The warrant disclosing that the extradition proceedings were in exact compliance with the Constitution and laws of the United States, and it appearing that the relator was a fugitive from justice, the evidence offered would not have justified his release from custody if it had been received. It tended to show, as claimed by his counsel, that the relator was not guilty of the crime charged against him in the indictment, and that the prosecution was inspired by an improper motive. The quarter sessions of Philadelphia county was not the proper forum to determine either of these questions. The relator is charged with an offense against the laws of the state of New York, and the proper tribunal to determine his guilt or innocence is a court of that state. As said by Mr. Justice Harlan in Appleyard v. Massachusetts, 203 U. S. 222, 27 Sup. Ct. 122, 51 L. Ed. 161, in a proceeding to extradite a prisoner for the crime of grand larceny, first degree, the same as alleged here (page 227 of 203 U. S., page 123 of 27 Sup. Ct. [51 L. Ed. 161]): "It is the province of the courts of New York (where the crime was committed) to declare what its laws are, and to' determine whether particular acts on the part of an alleged offender constitute a crime under such laws." Nor is it material that the relator alleges that the private prosecutor, instituting the criminal proceedings in New York, was inspired by malicious or otherwise improper motives. The prosecution is by the state of New York. The indictment alleges that a crime has been committed against the laws of that state, and demands the return of the relator to the state that he may be tried for the offense committed. The Governor of the state of New York in making the requisition acts for the state, and not for the private prosecutor, and it has not been shown, and does not appear, that his action or that of the executive of this state who issued the warrant for the relator's arrest is not in good faith and for the purpose of the extradition of a person bona fide accused of a crime in the state of New York. In Pettibone v. Nichols, 203 U. S. 192, 27 Sup. Ct. 111, 51 L. Ed. 148, where fraud and bad faith between the Governors of the demanding and asylum states were alleged, it was said by the Supreme Court. of the United

States (page 203 of 203 U. S., page 114 of 27 Sup. Ct. [51 L. Ed. 148]): "We pass by both as immaterial and inappropriate any consideration of the motives that induced the action of the Governor of Colorado. This court will not inquire as to the motives which guided the chief magistrate of a state when executing the functions of his office." If, as alleged by the relator, the private prosecutor in New York instituted the criminal proceedings with bad motives, that may possibly be shown on the trial as affecting the issue being tried before the jury, but it cannot be introduced here because, as we have seen, the guilt or innocence of the relator is not a question to be determined on a habeas corpus in Pennsylvania, but by a court and jury in the state of New York, where the crime is alleged to have been committed.

We need not consider or determine the constitutionality of the act of May 24, 1878 (P. L. 137; 2 Purd. [13th Ed.] 1761). The relator was not restricted to the proof of his identity on the hearing before the quarter sessions, but was afforded every opportunity to show the illegality of the extradition proceedings and that he was not a fugitive from justice. In other words, he was given an opportunity to controvert the jurisdictional facts which authorized the extradition proceedings, and that was all he was entitled to on a habeas corpus. The proceedings before the quarter sessions were conducted as though the act of 1878 had no existence, and therefore there is no ground on which the relator can ask this court to pass upon the constitutionality of the act.

It is to be regretted that the relator has been able by use of our judicial process to delay his return to the state of New York, and his consequent trial for the crime charged against him in that jurisdiction. He admits that he is the person named in the extradition warrant, and that he was in New York at the time the crime is alleged to have been committed. He does not allege that his return to New York is sought for religious or political reasons, nor that his indictment in that jurisdiction was prompted by such reasons. He does not claim that there is any prejudice existing against him in that state, or that he cannot have a fair and impartial trial in that jurisdiction for the crime charged there against him. His sole pretense for demanding a release from arrest and return to New York on the extradition warrant, as shown by his offers of evidence, is that the prosecution was not made in good faith, and is for the purpose of collecting a debt. Conceding this allegation to be true, it simply goes to his guilt or innocence, and he manifestly must have that question adjudicated in the courts of the state against whose laws the crime is alleged to have been committed. Instead, therefore, of resisting a return to the state of New York to be tried for the of

fense, he should, under the facts disclosed in the record, have voluntarily returned to that jurisdiction and demanded an immediate trial on the indictment. He is charged with grand larceny, a disgraceful and heinous offense, and if he be innocent, as he alleges, he should have submitted himself at once to the jurisdiction where the crime was alleged to have been committed. He is, and has been since his arrest, which is more than a year ago, within two hours of New York, where he can have a fair and impartial trial and his innocence declared by a court and jury of unquestioned jurisdiction. Yet, instead of seeking this opportunity to vindicate himself, he has since the day of his arrest invoked the aid of every court in this jurisdiction having cognizance of the matter to prevent his return to New York, and to defeat a trial on the merits of the crime charged against him. The facts of this case as shown by the record do not warrant such conduct by an innocent man, and unmistakably show that the relator should have been returned to New York without delay.

It must be distinctly understood that this commonwealth cannot be made an asylum for the criminal class of any state, domestic or foreign, and that, when a member of that class seeks a refuge here, the processes of our courts may not be used to prevent his return to the state or country whose justice he has filed. Such rule should be strictly enforced in interstate extradition proceedings. The provisions of the federal Constitution and the act of Congress should be enforced by the states in good faith to effect the purpose intended, and no technical or formal objection to extradition proceedings should be

allowed to avail the accused in evading a speedy trial in the demanding jurisdiction when there has been a substantial compliance with the constitutional and statutory requirements regulating such proceedings. The public welfare demands that crime committed against the laws of any state should be punished, and while each state should carefully guard and protect the liberty of its citizens, yet it should yield a willing compliance to the request of a sister state for the return of a fugitive from justice. This will carry out the manifest intention of the compact between the states, and tend to establish better and more harmonious relations between them. As correctly said by Mr. Justice Harlan in Appleyard v. Massachusetts, 203 U. S. 222, 227, 27 Sup. Ct. 122, 124, 51 L. Ed. 161: "The constitutional provision relating to fugitives from justice, as the history of its adoption will show, is in the nature of a treaty stipulation entered into for the purpose of securing a prompt and efficient administration of the criminal laws of the several states-an object of the first concern to the people of the entire country, and which each state is bound in fidelity to the Constitution to recognize. A faithful, vigorous enforcement of that stipulation is vital to the harmony and welfare of the states."

The judgment of the superior court affirming the order of the quarter sessions is affirmed, and the record is remitted to the quarter sessions, with directions that the said Richard C. Flower forthwith surrender himself into the custody to which he was remanded, and that the aforesaid order hereby affirmed and the Governor's warrant referred to in this proceeding be fully carried into effect.

GINCE. BELAND et al. (Supreme Court of Rhode Island. June 12, 1908.)

MASTER AND SERVANT-INJURIES TO SERVANT-UNSAFE PLACE IN WHICH TO WORK.

In an action for injuries to an employé in a quarry by the falling of a stone on him, evidence held not to establish by a preponderance of the testimony negligence of the employer.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 954-977.]

Exceptions from Superior Court, Providence County.

Action by Moise Gince against Joseph H. Beland and another. There was a verdict against defendant the Church of Our Lady of the Sacred Heart, and the court set aside the verdict and granted a new trial and plaintiff brings exceptions. Overruled and cause remitted for a new trial.

See 57 Atl. 300.

This was an action for personal injuries sustained through the fall of a stone on plaintiff while at work in the quarry of defendant. Plaintiff had been working in the quarry for about four weeks. His work consisted of assisting other men to blast and pick up rock and load the same on wagons. On the day of the accident he was working at the bottom of a small ledge with an iron bar, picking out small stones with the end of it, when a large stone fell on him. Plaintiff and one or two of his witnesses testified that the stone fell from the top of the ledge, while other witnesses who were called by him and all the witnesses of defendant testified that the stone was a part of the ledge, that it was dislodged from its natural bed by the picking made by plaintiff, and that the stone was in plain sight of plaintiff.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

Thomas F. Vance and Waterman, Curran & Hunt, for plaintiff. Clarence A. Aldrich and Benjamin W. Grim (Lewis A. Waterman, of counsel), for defendant.

ed the boundary, and the destruction thereof by one of the adjacent owners was a trespass. [Ed. Note.-For cases in point, see Cent. Dig. vol. 8, Boundaries, §§ 232-242.]

Exceptions from Superior Court, Providence County.

Action by Emil E. Theilig and wife against Joseph A. Morrison. There was a verdict for plaintiffs, and defendant brings exceptions. Overruled, and cause remitted for judgment on the verdict.

This was an action of trespass for the destruction by defendant of a stone wall situate on the dividing line between the lands of the parties. The wall had been erected for more than 30 years, and its location as the dividing line had been acquiesced in during all that time by the parties and their ancestors. The surface of plaintiffs' lot was considerably higher than the surface of defendant's lot, and the wall was also used as a bank wall. Plaintiff acquired title to his land in 1904 by a deed describing the land as a lot by a designated number according to a plat on file in the office of the city clerk.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

William A. Morgan, for plaintiffs. Peter J. Quinn and James F. Murphy, for defendant.

PER CURIAM. The verdict is supported by the evidence. The law was correctly stated by the court. O'Donnell v. Penney, 17 R. I. 164, 20 Atl. 305.

The defendant's exceptions are overruled, and the case is remitted to the superior court for judgment on the verdict.

On Motion for Reargument. Argued before DOUGLAS, C. J., and DUBOIS, JOHNSON, and PARKHURST, JJ.

PER CURIAM. The evidence was conflicting as to the ownership of the wall and as to the location of the division line between the estates of the plaintiff and the defendant. This court cannot, therefore, disturb the verdict of the jury.

The petition for reargument is denied.

FITZGERALD et al. v. FLYNN. (Supreme Court of Rhode Island. June 15, 1908.)

PARTNERSHIP

SUITS BETWEEN PARTNERSAPPOINTMENT OF RECEIVER.

Complainants and defendant entered into a verbal agreement of partnership, whereby it was agreed that each should contribute $1,500 in cash. Each of complainants deposited $1,500 in cash. Defendant refused to carry out the terms of the agreement, and exercised her power over complainants' contributions, and misapplied the same. Held, in a suit by complainants to restrain defendant from misapplication of the joint property, for a receiver, and for an accounting, that the court properly appointed a receiver and granted a preliminary injunction. Appeal from Superior Court, Providence County.

Action by Jeremiah E. Fitzgerald and another against Josephine F. Flynn. From a decree appointing a receiver and granting a preliminary injunction, defendant appeals. Affirmed.

This was a suit by two or three partners against the third to restrain the latter from misapplying the joint property, and for a receiver and for an accounting. The bill alleged that the parties entered into a verbal agreement of copartnership, whereby it was agreed that each should put in $1,500 in cash, that the net proceeds should be divided equally, that defendant should be employed as manager of the business at a fixed salary, that complainants in pursuance of the agreement deposited in a bank $1,500 each, that one of the complainants negotiated for a lease of the premises for five years at an annual rental for the use of the firm's business, and that defendant, after obtaining control of the contributions of complainants, proceeded to exercise her power over the deposits to draw the same and misapply the same to purposes of her own, and refused to complete the organization of a corporation contemplated by the parties. The defense was that there was no partnership agreement, and that the alleged joint property was the sole property of defendant, and that the advances made by complainants were made as loans to defendant. The facts established the allegations of the bill.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

Clarence W. Rowley and Waterman, Curran & Hunt, for appellant. George H. Huddy, Jr., for appellees.

PER CURIAM. The evidence in this case amply justified the appointment of a temporary receiver. The conduct of the respondent is inconsistent with her contention that the advances were made to her as a loan.

The decree appealed from is affirmed, and the cause is remanded to the superior court for further proceedings.

THIEBAULT v. PRENDERGAST. (Supreme Court of Rhode Island. June 10, 1908.)

1. TRIAL-INSTRUCTION-REQUESTED CHARGE -INSTRUCTIONS GIVEN.

Where, in an action for seduction, there was no evidence of loss of wages, an instruction that the jury could not find anything on that score, because there was nothing on which they could compute damages, sufficiently covered a request to charge that plaintiff could not recover for any loss of his daughter's services or earnings after the date of the writ.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 46, Trial, §§ 651-659.]

2. SEDUCTION-DAMAGES.

In an action for seduction of plaintiff's minor daughter by force and promises, a verdict awarding plaintiff $1,200 was not excessive, though plaintiff could not recover for loss of the daughter's services.

[Ed. Note. For cases in point, see Cent. Dig. vol. 43, Seduction, §§ 46, 48.]

Exceptions from Superior Court, Providence County.

Action by Aril Thiebault against Lawrence Prendergast for the seduction of plaintiff's minor daughter, in consequence of which she became pregnant and was delivered of a child. A verdict was rendered in favor of plaintiff for $1,200, and defendant brings exceptions. Overruled.

There was no evidence of loss of earnings, and defendant requested an instruction that "plaintiff cannot recover for any loss of his daughter's services or earnings after October 29, 1906, the date of the writ," which instruction the court refused.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

Herbert L. Carpenter, for plaintiff. John J. Heffernan and James H. Rickard, Jr., for defendant.

PER CURIAM. The charge of the presiding justice to the jury that there could be no recovery for the loss of wages and earnings, viz., "You cannot find anything on that score, because there is nothing upon which you can compute," was in accordance with the undisputed testimony, and covers the defendant's second request, which was rightfully refused. Indeed, the amount of the verdict in this case is not larger than might well have been awarded, irrespective of any consideration of actual loss of service. The jury have passed upon the credibility of the respective parties, and have decided the conflict of testimony in favor of the plaintiff, and their finding has been confirmed by the justice who presided at the trial. We see no sufficient reason for disturbing their concurring action.

Defendant's exceptions overruled, and case remitted to the superior court for judgment on the verdict.

GREENE v. STEERE WORSTED MILLS. (Supreme Court of Rhode Island. June 12, 1908.)

TRIAL-NONSUIT-FAILURE OF PROOF.

In an action for injuries to an operator caused by machinery in a mill, where it appeared that there were certain guards provided for the machinery, but there was no proof that they were insufficient, or that the absence of further guards was the cause of the injury, a nonsuit was properly granted.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 332, 333.]

Exceptions from Superior Court, Providence County.

Personal injury action by Margaret Greene, by her next friend, against the Steere Worsted Mills. There was a judgment of nonsuit, and plaintiff excepts. Exception overruled, and cause remitted for judgment.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.