32 FEDERAL REPORTER.
— In the second place, it is a significant observation that in Wallls Case
the authority of Com. v. Fox is denied, on the express ground that in
that case the judges found that the statute made the enlistment ab-
solutely illegal. It does not indeed appear that the authority of that
case would have been followed if it could not have been distinguished;
but it seems extremely probable that the case would have been dis-
tinctly overruled if the judge, on consideration of M cNulty’s Case, had
deliberately determined to announce the doctrine here contended for ‘
on behalf of the military authorities.
It seems to me that the effect of the statute is to make the enlist-
ment absolutely void, and that it must be so held on the application
of any person who is not estopped from setting up the prohibition.
In this case, the application being made both by Baker and by his
father, I do not find it necessary to decide whether he could be dis-
charged on his own application alone. My conclusion is that the en-
listment is void as to the father, and must be so held on his applica-
tion. It follows that Baker was not "duly enlisted," that he could
not commit the crime of desertion, and that the court-martial can-
not retain jurisdiction under the pending charges. He will therefore
be discharged.
In re MILLER. ‘
(O'ircuitUou1·t, W. D. Pennsylvania. February 18, 1885.)
1. EgDRADITION—THEATY wrru GREAT BR1rAnv or 1842-Homme Fuorrivn-
Rlllrider the treaty of 1842, between the United States and Great Britain, an
extradited fugitive may be held by the receiving government on his prior con-
viction and sentence for a nomextraditable crime.
2. SAna—DmRaNsn—GooD FAITH or 1-]xrRAm·rro1v Pnoonnnmos.
In the tribunals of his own country the surrendered fugitive cannot question
the good faith of the extradition proceedings.
Habeas Corpus.
J. T. Mafett and Wm. R. Blair, for petitioner.
E. A. Moutooth, contra.
Aonnson, J. The petitioner claims his discharge on the ground
that he is unlawfully held in custody in violation of the tenth article
of the treaty of 1842 between the governments of the United States
and Great Britain. Briefly, the facts of the case are these:
The petitioner was convicted of burglary in the court of oyer and
terminer of Clarion county, Pennsylvania, and thereupon was sen-
tenced on August 23, 1881, to undergo an imprisonment for the period
of seven years in the Western Penitentiary of Pennsylvania, to which
prison he was duly committed. In December, 1881, h_e escaped there-
from and fled to Canada. Burglary not being an extradition crime,