defendants engaging the said Joseph Fuhrmann in a game of chance commonly called faro.

That the said payment by the said Joseph Fuhrmann to the said defendants of the said sum was illegal and without consideration, and wholly unauthorized by this plaintiff, wherein and whereby the defendants received the said $135 to the use of the plaintiff.

VI. That on the eighth day of October, instant, and prior to the commencement of this action, this plaintiff demanded payment of said sum of $135 from the defendants.

VII. That said defendants have not paid any part of said sum, though requested so to do.

Wherefore, plaintiff prays judgment against the said defendants for $135.00, with interest at ten per cent per annum since October 3, 1890, and for cost of suit.

To which the defendants filed a demurrer, the grounds being:

"First. That said complaint does not state facts sufficient to constitute a cause of action against the defendants, or either of them.

"Second. That there is a misjoiner of parties defendant. "Third. That the complaint is ambiguous, unintelligible and uncertain, in this that it fails to show when and where, if at all, said money was paid to defendants, or either of them.

"Fourth. That the relief sought is unlawful. Wherefore defendants prayed judgment for their costs in this case," which was overruled by the court. Defendants elected to stand by the demurrer, and declined to answer over, whereupon, judgment was given for the plaintiff for the amount claimed with interest at eight per cent upon the same after date of the rendition of the judgment.

The only questions to be determined are as to the sufficiency of the complaint to warrant the judgment.

It is contended that the names of the defendants and the allegation of partnership should have been stated in the body

of the complaint. They are fully stated in the caption and a repetition is not required. Bliss on Code Plead's, § 145.

It is claimed that there is a misjoinder of parties defendant. A demurrer can only go to matters apparent upon the face of the pleading. Nothing appears there to indicate a misjoinder.

It is stated in argument that Hughes was not a partnerthat a man by the name of Murray was. Such fact might be made available by pleading it, but cannot prevail upon demurrer.

The action is to recover money received by the defendants to the use of the plaintiff, and the action will lie where defendant has received money either from the plaintiff or a third person under such circumstances that in equity and good conscience he ought not to retain the same, and which ex aequo et bono belongs to the plaintiff. This was the rule at common law and has been asserted in the courts of almost every state in the union.

In Jacobs v. Pollard, 10 Cush. (Mass.) 287, it is said: "In all cases where money is held by a person, whether it came into his hands rightfully or wrongfully, that in fact belongs to another, the true owner may maintain an action against him for its recovery." See Mason v. Waite, 17 Mass. 558.

In 4 Wait's Act's & Def's, 508, the law is stated to be, that, “whenever a person has money in his hands that belongs to another, no matter how he came into the possession of it, and upon which he has no legal or equitable claim, as against the true owner, and which he has no right to hold against him, it may be recovered by the true owner in this form of action." See also Alderson v. Ennor, 45 Ill. 129; Gilman v. Cunningham, 42 Me. 98; Norway v. Clear Lake, 11 Iowa 506; Robbins v. Ins. Co., 12 Mo. 380; Buel v. Boughton, 2 Denio (N. Y.) 91.

The complaint is inartificially drawn, but tested by these well settled rules it contains, in substance, every material allegation necessary to constitute a cause of action by the plaintiff against the defendants.

The individual money of plaintiff is alleged to have been placed for safe keeping in the hands of Joseph Fuhrmann. He was only a custodian without a right to use it. "With'out her knowledge, consent or approval," he lost it in gambling, to the defendants, who refused to return it upon demand. She was not in pari delicto.

The judgment of the county court is affirmed.

Affirmed.

WILLIAM F. WILLIAMS, PLAINTIFF IN ERROR, V. A. H. WEBER, SHERIFF, ETC., DEFENDANT IN ERROR.

1. EXTRADITION OF FUGITIVES FROM JUSTICE.-Under the national compact with the states relating to the return of fugitives from justice, such persons obtain no right to protection against the state whose laws they have violated by fleeing within the boundaries of another state whose laws they have not broken.

2. TRIAL OF FUGITIVE FOR a Different CRIME.-When such a person has been returned from another state to this state by a requisition, he may be arrested and tried for a crime committed before he left, although not the same crime with which he was charged when extradited.

Error to District Court of Arapahoe County.

Mr. J. W. LEWIS, for plaintiff in error.

Mr. S. W. JONES, attorney general, and Mr. H. RIDDELL, for defendant in error.

BISSELL, J. Williams, the plaintiff in error, having been taken into custody by the sheriff under a warrant issued by a peace officer, sued out a writ of habeas corpus to secure his release, because, as he claimed, the detention was illegal.

A complaint charging him with obtaining money under false pretenses was filed before a justice of the peace in Ara

pahoe county, in July, 1889. At that time Williams was in Kansas, where he went after the alleged offense was committed. Upon the complaint and warrant an application was made to the executive for a requisition on the governor of Kansas for the arrest and return of the alleged fugitive from justice. The requisition was honored, and Williams was arrested and brought back to Denver for trial. After a hearing he was discharged, but was immediately re-arrested on another warrant issued on a complaint which charged him. with an offense under the chattel mortgage act. The crime, if any, was committed by the sale of mortgaged chattels without the knowledge or consent of the mortgagee. It is probably true that the defendant had committed but the one offense, and that the acts done would not constitute a crime unless they were adjudged to be a violation of the act relating to the disposition of mortgaged property. According to the view taken of the case this matter is of slight importance. The offense for which he was re-arrested was undoubtedly radically and legally different from that on which he had been brought from the neighboring state. It was insisted on his behalf, that under the constitution and law he could only be tried for the crime wherewith he was charged according to the tenor of his extradition, unless he was granted time and opportunity to return to the jurisdiction. whence he had been brought by the original proceedings against him. No other question is presented by the record or discussed by counsel. The cause was transferred from the supreme court, by its order based on the statute and the stipulation of parties. Since the case comes to us under such circumstances and in this condition, we cannot well escape deciding the matter. Every court which has passed on the question must have been impressed with the diversity of judicial opinion on this subject. As may be gathered from the decisions, the differences between the courts do not seem to have arisen from the complexity or the difficulty of the inquiry. A tender and hardly commendable solicitude for the personal rights and liberties of those accused of crime

has led many courts to be astute in the erection of barriers to the successful prosecution of crime. On the other hand there are many tribunals which have not failed to recognize the justice and exact logic of the principles established by the common law courts of England, and have adhered closely to the decisions which they have rendered. On the question presented by this record those decisions are uniform and concurrent, and are approved by the current of judicial authority in this country. At the common law, an individual could be tried and convicted for any crime known to the jurisdiction in which he was arraigned, regardless of the means used to bring him within that jurisdiction, or of the circumstances under which he was found therein. Unless there were other grounds upon which the court's jurisdiction could be successfully assailed, or the proceedings were in some way irregular, the only available plea was not guilty. When the matter was first presented, these courts unhesitatingly held that the prisoner could not be heard to defend on the ground that by force, fraud or covin he had been gotten within the jurisdiction where he was being tried. According to the right reason of the case the judges said. that was a matter which concerned only the authorities of the country whence he had been brought. If the law of the country of the arrest had been outraged and violated, the guilty parties could easily be proceeded against under treaty stipulations, as they might exist, or under the general principles of international law, and the comity of nations, which were recognized as of binding force by all civilized countries. It is not denied that the prisoner might have a remedy against his captors. Possibly it would be more accurate to say that a right of action existed in his favor, since, as the learned justice said in the Ker case," whether he could recover a sum sufficient to justify the action, would probably depend upon the moral aspects of the case." Why this rule should ever have been doubted or questioned is not plain. Undoubtedly the tendency of American courts to go to extremes in the protection of the right of personal liberty has VOL. I.-13