424 HARVARD LAW REVIEW. two judges, who held that it must be proved that the act alleged was a crime in the United States, seems clearly preferable, though accompanied by the apparently mistaken assertion that it must also be a crime of the same name in Canada. The chance that an act which is one of the extradition crimes under the law of the surrendering country, will not be a crime at all in the demanding country, is certainly slight. And if the criminality of the act under the former law is shown, the burden of proof may well be cast on the prisoner to show that it is not a crime according to the law of the demanding country. But if he satisfies that burden of proof, he clearly has shown himself guiltless of crime, and should go free. It is believed that this view is in accord with the weight of authority. Iti re Belkftcontre, [1891] 2 Q. B. 122; Re Fhipps, 1 Ont. R. 586; Moore on Extradition, § 429. When will Deceit lie on a Broken Promise? — In a recent Missouri case, Traberw. Hicks, 32 S. VV. Rep. 1145, the defendant had contracted with the plaintiff to do a certain thing, without disclosing that a previous contract with a third party prevented performance. The plaintiff brought an action, of deceit. The argument that the defendant's wrong was a mere breach of contract was dismissed by the court, and the plaintiff was allowed to recover, on the ground that there was concealment of a material fact, namely, the outstanding agreement with the third party, which it was the defendant's duty to disclose. As the other elements of deceit were present, the case was without doubt rightly decided. It suggests the query as to whether the court would have been wilHng to go one step further, and hold the defendant liable for deceit if he had not put it out of his power to perform, but had merely intended not to perform, at the time he made the promise. This question has not often arisen, as generally the simpler remedy is to be obtained in an action of contract. But it Ijecomes material in cases where, for one reason or another, it is either inexpedient or impossible to obtain redress in the latter form of action. What little authority there is on the point is in conflict. The latest treatise on torts contains an assertion to the effect that an action of deceit does not lie for failure to perform a promise, though the promisor never intended to perform, and the promisee has altered his position and suffered damage, i Jaggard on lorts, 583. And the view that such an act is not fraudulent has been taken by a few courts. Fenwick v. Grimes, 5 Cranch C. C. 439 ; Baiiqiie Franco-Egyp- tieftne v. Brown^ 34 Fed. Rep. 162, 192. On the other hand, it is generally held that preconceived design in a buyer not to pay for the goods is such fraud as will vitiate the sale. (See the exhaustive opinion of Doe, J., in Stewart v. Emerson, 52 N. H. 301.) And -in other cases a promise made without intent to perform, merely to induce some act on the part of the promisee, has been held fraudulent. Dowdv. Tucker, 41 Conn. 197 ; Good- win V. Home, 60 N. H. 485. The simple question, apparently, is whether there is any misrepresenta- tion of a present fact. As a promise relates to the future, courts have jumped at the conclusion that there is none. But a promise to do an act in the future certainly carries with it a representation of present intention to perform, just as certainly as the promise in Trader v. Hicks, included a representation that the promisor had not put it out of his power to perform. And tljat a representation of present intention is a statement of
